On 2 April 2019, the Court of Justice of the EU delivered its judgment in joined cases C-582/17 & 583/17, H. and R on the effective remedy in ‘take back’ procedures under the Dublin III Regulation (DR III).
The joined cases concerned two Syrian nationals who applied for asylum in the Netherlands but it was discovered that both individuals had a Eurodac ‘hit’ in Germany. Both applicants claimed to be married to third-country nationals who had been granted international protection in The Netherlands. Nevertheless, the Dutch authorities found that these marriages were not genuine and denied annulling their transfer to Germany. After both cases were brought before the Dutch Council of State, the latter decided to refer a question to the CJEU on whether a third-country national is entitled to rely, in an action brought under Article 27(1) of the Regulation in the second Member State against a decision to transfer him, on the criterion for determining responsibility set out in Article 9 thereof.
The Court first held that, in situations such as those at issue, the competent authorities of the second MS are not required to determine the MS responsible for examining the application by taking into consideration the criteria under Chapter III of the Regulation and before they make a take back request. It came to this conclusion because, under Articles 23(1) and 24(1) of DR III, the exercise of a take back request presupposes not the responsibility of the requested MS to examine the application for international protection, but that that MS satisfies the conditions laid down in Article 20(5) or Article 18(1) (b) to (d) of the Regulation. It further noted that the criteria for determining responsibility set out in Articles 8 to 10 of the Regulation, read in the light of recitals 13 and 14, intend to promote the best interests of the child and the family life of the persons concerned.
In light of the above, and in accordance with the principle of sincere cooperation, it found that in a situation covered by Article 20(5) of the Regulation, a MS cannot issue a ‘take back’ request when the applicant has provided the competent authority with information clearly establishing that that MS must be regarded as responsible for the application. In this case, and by way of exception, the CJEU concluded that the applicant could invoke the Article 9 criterion for determining responsibility in the action mentioned.
By clearly differentiating the purpose and process of the take charge and the take back procedures under DRIII, the CJEU found that a third-country national who lodged an application for international protection in a first MS, then left that MS and subsequently lodged a new application for international protection in a second MS is not, in principle, entitled to rely, in an action brought under Article 27(1) of DRIII in that second MS against a decision to transfer them, on the criterion for determining responsibility set out in Article 9. To conclude otherwise would not be in conformity with the Regulation’s overall objective to prevent secondary movements of persons and the principle that an application for international protection must be examined by a single MS under Article 3(1), as well as with the aim of rapid processing of applications.