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23 June 2017

Advocate General Sharpston delivers Opinion in important case about burden sharing arrangements for asylum claims

On 20 June 2017, Advocate General Sharpston delivered her Opinion in Case C-670/16 Mengesteab, heard by the Grand Chamber of the CJEU on 25 April 2017, an important preliminary reference arising from the 2015-2016 refugee crisis in Germany. The case concerns the Dublin III Regulation. In particular, it raises the question of the scope of the right of appeal available to applicants for international protection under the Regulation against decisions to transfer them to other Member States. The case arises from the large-scale admission of asylum seekers to Germany in 2015-2016, particularly from Hungary, and the subsequent difficulties of the German authorities in complying with the time-limits set out in the Regulation for making take charge requests to other Member States responsible under the Regulation for individual applicants. The questions referred raised the issue whether an applicant could rely on the failure of a Member State to comply with such time limits, or whether such matters concerned only the relations between Member States.

Of particular significance for the United Kingdom, Advocate General Sharpston answered certain of the questions referred as follows:

(1) Article 27(1) of the Dublin III Regulation, read in the light of recital 19, should be interpreted as meaning that an applicant for international protection is entitled to bring an appeal or review against a transfer decision made as the result of a take charge request where the requesting Member State did not comply with the time limit laid down in Article 21(1) when submitting such a request.

(2) In those circumstances, the question whether the requested Member State agrees to the take charge request is irrelevant. The position remains the same where the requested Member State becomes the Member State responsible for examining the application for international protection by virtue of Article 22(7) of the Dublin III Regulation.

(3) The period of three months referred to in the first subparagraph of Article 21(1) provides the general time limit within which take charge requests must be made. The shorter period of two months laid down in the second subparagraph of Article 21(1) applies in those cases where a comparison of fingerprints obtained pursuant to Article 9(1) of the Eurodac Regulation reveals a positive hit within the meaning of Articles 2(d) and 14(1) of that regulation. That period of two months is not in addition to the general time limit of three months and therefore cannot start after the period laid down in the first subparagraph of Article 21(1) has expired.

(4) An application for international protection is deemed to have been lodged within the meaning of Article 20(2) when a form or report reaches the competent authorities designated for the purposes of fulfilling a Member State’s obligations under Article 35(1). In that respect, the competent authority so designated is that which is responsible for receiving an application for international protection which is lodged in the Member State concerned.

(5) A delay between the issue of a certificate registering an individual as an applicant for international protection and the submission of a take charge request cannot result in the requesting Member State being required to exercise its discretion under Article 17(1).

The Advocate General’s Opinion can be found here.

David Blundell represented the United Kingdom, who intervened in the case, before the Grand Chamber. The judgment of the Grand Chamber is now awaited.

Barristers Involved

Sectors:
Government

Services:
Litigation