The George Karim v Migrationsverket (Grand Chamber) case concerns legal questions regarding asylum seekers in the European Union (EU). Mr. Karim, a Syrian national, applied for asylum in Slovenia in May 2013. On 20 July, Mr. Karim left the EU for Lebanon. He claims to have been outside the EU for more than three months and on 3 March 2014 he submitted an application for asylum in Sweden. After finding out that Mr. Karim had applied for an asylum in Slovenia, Swedish authorities rejected his application for asylum on the following day and made a transfer decision to Slovenia, which accepted the responsibility for taking back Mr. Karim. Mr. Karim contested the Migrationsverket’s decision and brought an action before the Swedish Administrative Court (Förvaltningsrätten i Stockholm). The Administrative Court dismissed his action on the ground that, in the case where a Member State agrees to take back an asylum applicant, the latter may challenge his transfer to that Member State only by pleading the existence of systemic deficiencies, as concluded in Abdullahi. Mr. Karim contested the latter decision and brought an appeal to Stockholm’s Administrative Court of Appeal (Kammarrätten i Stockholm – Migrationsöverdomstolen) which made a preliminary reference to the ECJ regarding the interpretation of Regulation No 604/2013 (Dublin III Regulation) (paras 7-12).
The ECJ had to clarify the interpretation of recital 19, Article 19 and Article 27 of the Dublin III Regulation. Recital 19 aims to safeguard the right to an effective remedy in light of the Article 47 of the Charter of Fundamental Rights of the European Union regarding transfer decisions by the Member States. Article 27 establishes the right to an effective remedy. Chapter III (articles 7-15) provides for criteria for determining the Member State responsible for the asylum seeker. Article 19 establishes when a Member State‘s responsibilities cease to exist. Article 19(2) states that a Member State‘s obligations shall cease when the person concerned left the territory of the Member States for at least three months. Article 27(1) sets rules for the Member State which adopts a decision to transfer the applicant to another Member State. The Swedish Administrative Court of Appeal referred two questions to the ECJ:
(1) Do the new provisions on effective legal remedies in [the Dublin III Regulation] (recital 19 and Article 27(1) and (5) thereof) mean that an applicant for asylum can challenge the basis of which he or she is to be transferred to another Member State which has agreed to receive him or her, or can effective legal remedies be limited to the right to an examination of systemic deficiencies in the asylum procedure and the reception conditions in the Member State to which the applicant is to be transferred (as held in case Abdullahi)?
(2) Does Article 19(2) of [the Dublin III Regulation] mean that the regulation may not be applied where the applicant for asylum shows that he or she has been outside the territory of the Member States for at least three months (para 13)?
The decision and reasoning
The ECJ first examined the second question, and it concluded that Article 19(2) must be interpreted that the obligations cease if the responsible Member State can prove that the asylum applicant has left their territory for at least three months (para 15). The ECJ explained that if the applicant had left the EU for more than three months, the later application in another Member State is to be considered a new application in the light of Article 19(2) (para 17). According to the ECJ, this is the case if the applicant can provide evidence that he left the territory of the prior Member State for at least three months before submitting the application to another Member State. Consequently, the Member State that receives the new application is the responsible Member State (para 18).
The first question, which was examined last by the ECJ, was whether Article 27 of the Dublin III Regulation read in the light of Article 19, should be interpreted so that an asylum seeker could challenge a transfer decision and invoke incorrect application of the criteria for determining responsibility in accordance with Chapter III. In its reasoning, the ECJ referred to the case Ghezelbash, which clarifies that Article 27(1) read in the light of recital 19 provides an effective remedy against a transfer decision. According to the Court this conclusion can also concern an examination of the application of the Dublin III Regulation also results in risk of inhuman or degrading treatment in accordance with Article 4 of the Charter of Fundamental Rights of the European Union (para 22). The ECJ continued by stating that the second subparagraph of Article 19(2) establishes the framework for the process within which the third-country national in question made an asylum application in a Member State and then left the territory of the EU for at least three months before making a new asylum application in another Member State (para 23). It also stated that when a new process is necessary it must be distinct from the first. Thus, the answer to the first question is that: Article 27(1), read in the light of recital 19 thereof, must be interpreted so that an asylum applicant may, in an action challenging a transfer decision, invoke an infringement of the rule set out in the second subparagraph of Article 19(2) (para 27).
Advocate General Sharpston, in her opinion, discussed the purpose of the Dublin III Regulation and stated that it had been adopted in the light of the principle that Member States should have mutual trust in regard to the level of protection guaranteed for asylum seekers. The purpose was to avoid that the system would be blocked due to different regulations in Member States as well as to uphold legal certainty and to avoid forum shopping. All above in order to make the process more efficient both for applicants and Member States (para 17). It can be questioned if the purpose behind the Dublin III Regulation is contrary to the outcome of this case, since in some way it encourages forum shopping because now the applicant, if he or she is disappointed with the process, they can in practice leave the EU for at least three months in order to start a new process in another Member State. In regard to forum shopping the authors agree with the reflection made in a previous post published on this blog, which commented on the Advocate General’s Opinion.
As stated above, the purpose of the Dublin III Regulation was to make the process more efficient, and it can thus be discussed if the possibility to start a new process in a second Member State aims to achieve this. From the perspective of the EU as a whole, it can be argued that Member States have to do the work behind the process twice, which is both insufficient and costly.
Through Karim, the ECJ was to determine whether the new provisions of the Dublin III Regulation on the right to an effective remedy had been limited to checking the existence of systemic failures in the asylum procedure and reception conditions in the receiving Member State as decided in Abdullahi. In the Abdullahi judgement from 2013 which was decided on the basis of the Dublin II Regulation and under the Common Asylum System, the ECJ adopted a restrictive interpretation of the grounds for appeal. In that case, the Court found that asylum seekers could only challenge a transfer decision if they relied on the existence of systemic failures in the procedure and the conditions of the reception of asylum seekers in that Member State which constitute serious and proven grounds for believing that they will run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. If the rationale of Abdullahi had been applied to these cases, Karim and Ghezelbash, the applicants would not have been entitled to challenge the possible incorrect application of the criteria for determining the Member State responsible for examining an asylum application. The difference between these decisions is based on the new provisions of the Dublin III Regulation, contained in Articles 27 and 19, and on the amendments made since its last recast. The judgment obviously recognized some protection for asylum seekers by giving them the right to invoke, in the context of an appeal against a transfer decision, the erroneous application of a criterion of responsibilities set out in Chapter III. In other words, the ECJ limited the scope of the Abdullahi judgment to the Dublin II Regulation only.
To conclude, the preliminary ruling in the Karim case has clarified that Article 19(2) of Dublin III Regulation means that if it can be established that the applicant had left the EU for at least three months, the later application in another Member State is to be considered as a new application and the latter are therefore the responsible Member State. Furthermore, Article 27(1) read in light of recital 19 of the Dublin III Regulation should be interpreted that an applicant has the right to challenge a transfer decision on the basis of an infringement of Article 19(2).
Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck, and Sherimane Abdoun