Mr Kastrati who is a Swedish citizen met Mrs Kastrati and her children in Kosovo in 2004. Mr Kastrati is not the father of Mrs Kastrati’s children. In September 2007, Mrs Kastrati and her children made an application for resident permit through the Swedish embassy in Macedonia to join Mr Kastrati, arguing that there was a link between them and Mr Kastrati. In May 2008, Migrationsverket rejected their application on the basis that in their case there was no relation on which they could rely on in order to obtain a resident permit in Sweden. Mrs Kastrati and her children appealed the Migrationsverket’s decision to the Skåne Regional Administrative Court (Länsrätten) acting as Migration Court (Migrationsdomstolen). The appeal court upheld the refusal to grant them residence permit. Mrs Kastrati and her children appealed the decision before the Administrative Court of Appeal dealing with migration issues in Stockholm (Kammarrätten) and later on they withdrew the appeal. As a consequence, on 19 March 2009, the Kammarrätten decided to remove their case from its register.
The procedural history of the case is quite long and complex. On 30 March 2009, Mrs Kastrati and her children came to Sweden due to the fact that the French authorities had granted them a short-stay visa. After their arrival in the European Union territory they remained in Sweden where they applied for asylum in April 2009. However as it was the French authorities who had issued their visa, Migrationsverket requested France to take charge of Mrs Kastrati and her children as provided in the article 16(1)(a) and article 9(2) of the Dublin Regulation (Regulation No. 343/2003). On 16 June 2009, Mrs Kastrati and her children made a new application for residence permit relying on their link with Mr Kastrati, but on 22 June 2009 they withdrew their asylum application. On 23 July 2009, French authorities who did not know anything about the withdrawal of the asylum application, assumed their responsibility by responding positively to the request of Migrationsverket to take charge of Mrs Kastrati and her children. Migrationsverket dismissed both their application for resident permits based on a connecting link with Mr Kastrati and their asylum application. Concerning the former Migrationsverket argued that its decision of 13 May 2008 had become final. Regarding the latter the Swedish authority argued that according to article 19(1) and (3) of the Dublin Regulation the French Republic was the Member State responsible in the matter, and decided to transfer the applicants to France as the French authorities, unaware of the withdrawal of the asylum application, had accepted the request that they take charge of Mrs Kastrati and her children. The applicants contested the decision of the Migrationsverket before the Regional Administrative Court (acting as Migration Court), which ruled in favour of them and referred the case back to the Migrationsverket. However, Migrationsverket lodged an appeal before the Administrative Court of Appeal, claiming that the Dublin Regulation was applicable even after the withdrawal of the asylum application. The Administrative Court of Appeal then (in December 2010) decided to refer the question to the European Court of Justice.
In the preliminary reference the Swedish court seeks essentially to know how the withdrawal of a claim by an applicant who has submitted an application of asylum in one Member State may affect the applicability of Regulation No 343/03. This is normally the national law that defines the rules of application for asylum. In addition, under article 4 of the Regulation, “the process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum filed for the first time from a Member State.” The Common European Asylum System should include in short terms, a clear and workable determination of the Member State responsible for examining an asylum application. Such a method should be objective and equitable for both the Member State and for the persons involved. It should in particular allow a rapid determination of the Member State’s responsibility to ensure effective access to procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.” (The third and fourth recitals in the preamble to Regulation No 343/2003.)
The ECJ found that “the withdrawal of an application for asylum within the terms of Article 2(c) of that regulation, which occurs before the Member State responsible for examining that application has agreed to take charge of the applicant, has the effect that [the Dublin] Regulation can no longer be applicable. In such a case, it is for the Member State within the territory of which the application was lodged to take the decisions required as a result of that withdrawal and, in particular, to discontinue the examination of the application, with a record of the information relating to it being placed in the applicant’s file.”
The outcome of this case is not surprising. It could probably be done by an interpretation by the Swedish court but they probably wanted to be certain. It is a quite simple purposive interpretation that has to be done. However, it is good and very important that the question was referred to the ECJ. This is an area of law that has to be clear so there will be as little room for the national institutions’ own interpretation as possible. The ruling also mentions that “a record of the information relating to it being placed in the applicant’s file” should be taken. One can ask if this record might have an impact for an application at a later occasion, or what the noted record is actually for? Hopefully it is only for the authorities to know the application history of the family, and it does not signify that it is supposed to have an impact on a later decision.
Advocate General Trstenjak in his opinion offers a different point of view on the case which is worth consideration. The Court did not share the Advocate General’s point of view.
The complete text of the judgment is available here.