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27 July 2017

CJEU Grand Chamber rules that Croatia is responsible for examining applications for international protection by persons who crossed its border en masse during the 2015-2016 migration crisis

The Grand Chamber of the Court of Justice of the European Union has today delivered judgment in Conjoined Cases C-490/16 A.S. and C-646/16 Jafari, following a hearing (which unusually for the CJEU lasted a full day) in March 2017.

The two cases raise a series of questions concerning the determination of responsibility under the Dublin III Regulation (Regulation 604/2013) for processing asylum claims by Syrian refugees who, during the migration crisis in 2015-2016, arrived in unusually large numbers at the Serbia-Croatia border without possession of an appropriate visa. The Croatian authorities organised transport for them en masse through Croatia to the Croatia-Slovenia border, with the aim of assisting them in moving  on to other EU Member States in order to make an application for international protection there. 

The individuals in A.S. subsequently made such an application in Slovenia, and those in Jafari did so in Austria. Both Slovenia and Austria contended that, as they had entered Croatia unlawfully, Croatia was responsible pursuant to the Dublin III Regulation for determining their applications. The individuals concerned contended that their crossing from Serbia into Croatia was not an “irregular crossing” within the meaning of Article 13 of the Dublin III Regulation (a term which is not defined in the Regulation), because it had been tolerated by the Croatian authorities, and therefore Croatia did not bear responsibility for determining their applications. This argument gave rise to several related issues which the CJEU also had to consider. 

Departing in some respects from the position taken by Advocate General Sharpston in her Opinion, the CJEU rejected the individuals’ arguments and held that their crossing from Serbia into Croatia had indeed been “irregular” and therefore Croatia was responsible for determining their applications for asylum. In reaching this conclusion, the CJEU amongst other things accepted the United Kingdom’s argument (which AG Sharpston had rejected) that the term “irregular crossing” in Article 13 of the Dublin III Regulation cannot be interpreted by reference to what were said by some of the parties to be similar provisions in the Schengen Borders Code, because certain member states who are bound by the Regulation are not bound by the Code (including the UK). 

For the BBC’s coverage of the judgment, click here.

A copy of the judgment is available here.

Charles Banner appeared as sole counsel for the United Kingdom, instructed by the Government Legal Department.‚Äč

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