Kastrati v. Migrationsverket (the Swedish Migration Board), Case C-620/10, Judgment of 3 May 2012

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.

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About eulaworebro

Örebro Universitet (Sweden)
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2 Responses to Kastrati v. Migrationsverket (the Swedish Migration Board), Case C-620/10, Judgment of 3 May 2012

  1. MD says:

    This case is showing us the management of the Dublin regulation.
    Historically, the asylum policy joined the EU’s aims since 1999 through the Amsterdam Treaty. This is to harmonize the national procedures and also define the notion of “refugee status” that the Dublin regulation was implemented, and thereby, in the goal to achieve at a shared European asylum government.
    In this case, the ECJ had to rule a conflict between an EU’s regulation and the states liability. That case recalls the fundamental principle of the Dublin II Regulation under which a single Member State is responsible for examining an asylum application (the first one where it was introduced). It also shows how Member States are quick to reject themselves mutually the liability of the folders. Moreover, the ECJ affirms that the EU law can just be apply where the conditions of its application are satisfied. Indeed, this case reveals one of the principal role of the European Court of justice, that is to define limits at the application of EU law.
    The construction of Europe implies for the Member States, the construction of a “Common European Asylum System” (CEAS), projected since a long time, but that is very difficult to implement. Indeed, despite the adoption of the Dublin Regulation, as cornerstone of current European asylum system, harmonization is far to be accomplished.

  2. Samiya says:

    Kastrati v Migrationsverket
    Mrs Kastrati, who is the person the case is concerning came from Kosovo. A country that is known for poverty and other difficulties, many people from that area often search for a better life in other countries. In this case the applicant applied to come to Sweden to live with a man she met in Kosovo. The Migration boarder denied them residence based on the fact that they didn’t think that their relationship was reliable in order to obtain residence permanently. This argument is quiet common in the asylum process, some use fictitious marriage as a way, therefore the migration boarder judged the reliability of the relationship. In this case they didn’t find the relationship to be trustworthy and they for that reason denied them residence.
    However, Mrs Kastrati appealed the decision to the country administrative court which upheld the decision of the migrations boarder. Mrs Kastrati once again appealed the decision to the Administrative court of appeal; however, she withdrew her application before the court made a decision. Nevertheless it came to the Swedish authorities’ knowledge that Mrs Kastrati arrived to Sweden on March 2009, after that she had withdrawn her application. Mrs Kastrati had received short-stat visa from France on order to go there for a short period of time, however after she arrived in to European Union area she decided to stay in Sweden.
    There are many that, in desperate needs, take advantage of the asylum system. Some have fake identities and come into the country illegal, other use fictitious marriage. The Union decided to regulate this area strictly in order to not have an uncontrolled wave of refugees. The Swedish migrations boarder argued that France was the first member state that the applicant had contact with and they should therefore be the responsible asylum countries in this case based in the regulation No 343/03. The question was sent to ECJ for a clearer interpretation of article 19 (1) and (3). The court agreed with the migration board arguing that France is the responsible country and it is the country where Mrs Kastrarti should bring her application. I personally think that this regulation is necessary in order to avoid huge problems in the region. It’s known that without this regulation immigrants could go from one European country to another until they received a permanent residence – which is problematic in many ways.

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