On the 9th of March 2023, the Court of Justice of the European Union (CJEU) published the Advocate’s General Opinion in respect of case C-568/21. The case concerned a family of third-country nationals of which the father worked at the embassy of his state of origin in MS X and so the family received diplomatic identity cards. The family left X and applied for international protection in the Netherlands but the Dutch authorities considered X as responsible under the Dublin Regulation and X accepted the take back requests. In the course of appeals proceedings the Dutch Council of State decided to refer a question to the CJEU regarding the inclusion of diplomatic cards within Article 2(I) of the Regulation.
The Advocate General Collins (AG) first derived from X’s handbook on diplomatic privileges and immunities and a published document that includes an example of the diplomatic identity card that the applicants’ diplomatic identity cards attest their right to stay in X in accordance with the Vienna Convention.
The AG then stated that the text of Articles 2 and 12 of the Dublin Regulation does not indicate that authorisations issued pursuant to international agreements are excluded from the definition of residence documents. It is furthermore irrelevant that a document is described as declaratory or constitutive. The AG then highlighted that the context of the Dublin Regulation, aiming to establish a clear and workable method to identify a responsible MS, suggests that all documents of MS authorising persons to stay on their territory are considered as residence documents. Next, the AG stated that holding X responsible for examining the protection applications is consistent with CJEU’s case-law and that a different interpretation would mean that the applicants can chose the MS in which they want lodge an application whereas others, with a different legal basis, do not. This would be contrary to the uniformity that the Dublin Regulation seeks to achieve. The AG concluded that a diplomatic identity card issued under the Vienna Convention is a residence document as defined in the Dublin Regulation.