This post discusses the opinion of the Advocate General (AG) Sharpston delivered on 17 March 2016 on the case Karim v. Migrationsverket. The case was brought in front of the Administrative Court of Appeal of Stockholm (Kammarrätten). The general background of this case revolves around the question of the responsible authorities when an individual from a non EU country makes several requests for asylum in two or more Member States of the Union. The case is yet to be decided.
Mr. Karim is a national from Syria who left his country and migrated towards Europe. He first made a request for asylum in front of the Slovenian competent authorities in May 2013 before leaving the territory of the European Union for a period longer than three months. Finally, he came back and made a second application for asylum in front of the Swedish Migrationsverket in March 2014 (para. 12).
Coordinating their efforts, the Swedish and the Slovenian migration boards agreed that Slovenia would take responsibility for Mr. Karim’s request. Based on Article 19 (2) of the Dublin III Regulation, this agreement led to both a rejection of the Swedish asylum application and a transfer decision (para. 12).
While challenging those decisions, Mr. Karim based his arguments on the Dublin III Regulation and on articles 19 (2) and 27 (on the right to an effective remedy concerning an appeal or a review against a transfer decision) in particular. According to his reasoning, his right to a remedy and therefore to an appeal against a transfer decision should not be limited to the examination of “systemic deficiency” (and humanitarian reasons), but should also include the grounds stated in the Chapter III criteria of the Dublin III Regulation. Moreover, according to him, in accordance with article 19 (2), any burden of responsibility on Slovenia ceased due to his absence from the EU territory for more than three months, meaning that it was actually Sweden that should review his asylum application (para. 13).
As a consequence of the fundamentally different interpretations that could be made of the relevant legal framework, the Swedish Court asked the ECJ for a preliminary ruling centered on two questions:
First, should Article 27 of the Dublin III Regulation receive an extensive interpretation and allow for a remedy based on the misapplication of the criteria contained in Chapter III of the Dublin III Regulation that determines the responsible Member State (para. 15 (1))?
Second, even if the question is not adequately written, does the application of article 19 (2) lead to a completely new procedure of determination of the responsible member state (thus meaning the exclusion of Slovenia in the present case) (para. 15 (2))?
Opinion of the Advocate General
Regarding the first question posed by the referring court, AG Sharpston identified three possibilities as to the proper interpretation of the right to an effective remedy in Article 27 (1). These ‘three options’’ may be invoked by an applicant to appeal or review a transfer decision made by a determining Member State in order to prevent the transfer to the designated responsible Member State, in this case Slovenia. In turn, the determining State shall examine the possibility of designating another Member State as responsible for the application for international protection. In essence, the question regards the interpretation and scope of application of Article 27 (1) read together with recital 19 of the Dublin III regulation.
The ‘first option’ is restricted solely to the grounds identified by the ECJ in case Abdullahi where a transfer decision can only be challenged when it is in breach of Article 3 (2) of the Dublin III Regulation. It provides for the right to an effective remedy in cases where systemic deficiencies in the asylum procedure can be identified. Another opinion relevant in this case is opinion Ghezelbash delivered by AG Sharpston on the same date where this option is explained more in detail (see para. 60 of Ghezelbash). The ‘second option’ is limited to cases in which justification grounds that follow from the ruling of the Abdullahi case can be invoked as well as expressly conferred rights on individual applicants contained in the Dublin III Regulation which reflect fundamental rights protected by the Charter (para. 22).
Finally, Sharpston concludes this first question by introducing the ‘third option’, stating that Article 27 (1) should be interpreted as including the entitlement of an applicant to appeal or have a contested transfer decision reviewed when national authorities may have misapplied the criteria contained in Chapter III of the Dublin III Regulation.. (This option proposed by the AG would give fully effective protection to Mr. Karim (paras. 34 and 35). In this sense, it was the information of the Swedish authorities that was of significant value since it questioned whether the said authorities had applied the Chapter III criteria correctly when making the transfer decision as such. It emerges from the case that Swedish authorities were aware of his absence from EU territory for more than three months. Nonetheless, they did not apply the chapter III criteria correctly by requesting a transfer to Slovenia (para. 25).
As to the second question, the AG states that the facts of the case are clear and that the application made by Mr. Karim should count as a second application as long as it may be established that he left the EU territory for more than three months (para. 45). Thus, any subsequent application for asylum made to the competent authorities of a Member State constitutes, under Article 19 (2), a new application giving rise to a separate and independent procedure for determining the responsible Member State (para. 46).
What is interesting in this case is if the Court will be of the same opinion as the AG on this question, and what consequences this may have in the future. According to Article 252 TFEU the opinion of the AG is not binding, meaning that the Court is free to determine if it wants to follow the opinion.
The Dublin system is a legal framework designed to address the problem of refugees in Europe by distributing responsibility of examining asylum applications to Member States. Article 19 (2) of the Dublin regulation III concerning leaving the territory of the Member States for at least three months, may work against the original idea behind the Dublin III Regulation which includes, inter alia, preventing “forum shopping” (para. 17). The AG mentions in her opinion that Article 19 (2) of the Dublin III Regulation should be interpreted as stating that if an applicant for asylum left the territory of the Member States for at least three months, any application for asylum made to the competent authorities of a Member State constitutes a new application and new procedure (para. 46).
However, based on this opinion of the AG one could wonder if it is a factor contributing to the asylum “forum shopping”. One thus has to wonder whether this opinion actually helps the purpose of the Regulation or if it is rather counterproductive. The aim behind the Dublin III Regulation regulation was to prevent applicants from submitting applications in more than one Member State, and to ensure an effective access to the asylum procedure. However, this can be disputed based on the AG’s opinion in this case on how the article in question should be interpreted. This may contribute to increase “forum shopping” rather than decreasing it.
To conclude, it will be of particular interest to see whether the ECJ will follow the AG’s assessment, bearing in mind that the Court commonly applies a teleological interpretation of EU law (See Schütze, European Constitutional Law, p. 207). A teleological interpretation of the Dublin III Regulation in this case seems to point in an opposite direction from the conclusion of the AG.
Negin Hamedanian Torghi, Pierre Lempereur, Alexandra Mihaltan