On the 30th of March 2023, the CJEU ruled in its judgment S.S. and others, C-338/21. The case concerned three third-country nationals (TCN) whose application for international protection were rejected by the Netherlands and the authorities ordered their transfers to Italy who accepted the take back requests. The claimants then applied for a temporary humanitarian permit based on being a victim of human trafficking, however, the State Secretary decided not to consider these applications. The applicants unsuccessfully requested a review of this decision. The Secretary then declared that the transfer time limit laid down in Article 29 of the Dublin III Regulation was suspended by the review request. The Council of State submitted a preliminary question.
The Court first ruled that Directive 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings does not preclude MS from deciding to grant an appeal against the rejection of the humanitarian residence permit with a suspensive effect on the previously adopted transfer decision under the Dublin Regulation. This practice strengthens the protection of TCNs by enabling them to remain in the territory of a Member State pending the outcome of that appeal.
However, the CJEU held that an appeal against a decision other than a transfer decision, such as a decision rejecting an application for a residence permit as a victim of trafficking, cannot be regarded as an appeal defined under the Dublin Regulation. Therefore, the derogation to suspend the transfer time limit pending a final decision on an appeal provided in Article 29(1) cannot be applied in the event of a request for a review against a decision rejecting the humanitarian victim of trafficking residence permit.