Current Questions of Interpretation on the Dublin Regulation Art 10(1) and Art 16(3) in the Austrian Judiciary. Adel-Naim Reyhani

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1 Current Questions of Interpretation on the Dublin Regulation Art 10(1) and Art 16(3) in the Austrian Judiciary By Adel-Naim Reyhani Cite As: Reyhani, A., (2012) Current Questions of Interpretation on the Dublin Regulation Art 10(1) and Art 16(3) Dublin Regulation in the Austrian Judiciary, Vol 1 LSEU, pp In recent months, the Austrian Asylum Court, which is the second and last instance court in asylum proceedings, has developed a body of case law concerning the Dublin Regulation in cases where a third-country national has left the territory of the MS without filing an asylum application in the Member State whose border he/she had irregularly crossed and subsequently entered Austria and filed an application for international protection. In the following sections of this paper, the Asylum Court s rationale in interpreting the respective Articles of the Dublin Regulation are analysed and an alternative interpretation argued. As a contextual introduction, the significance of this case law will be considered against the backdrop of the collapse of the Greek asylum system. KEYWORDS: Austrian Asylum; Dublin Regulation; Asylum Shopping The Dublin-System among other documents encompassing the Dublin Regulation as a successor of the Dublin Convention, the EURODAC Regulation as well as respective implementing provisions provides criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the MS by a third-country national. One of the principle reasons for creating such a system was to prevent a third-country national from submitting applications for international protection in multiple MS ( Asylum Shopping ). A second essential goal was to reduce the number of asylum seekers who are shuttled throughout the Dublin-Area ( Refugees in Orbit ). These objectives were based on the assumption that all MS operated similar and comparable quality standards in their asylum systems. Although the European Union launched several Directives aimed at harmonisation 1, ever since the European Court of Human Rights (ECtHR) ruling against Greece and Belgium in the case of M.S.S in January , it has become obvious that these presumptions did not reflect the European reality. The Dublin Regulation provides a set of hierarchical criteria determining the responsibility of a Member State to examine an asylum application. These criteria are based on the Principle of Responsibility the Member State which played the greatest part in the applicant's entry into or residence in the territories of the MS 78

2 shall be responsible, subject to exceptions designed to protect, inter alia, family unity. 3 In practice, the provision of Art 10(1) of the Regulation, namely irregular crossing the border into a Member State having come from a third country," plays the most important role, and as is commonly cited the Turkish border to Greece is a principle point of entry into the European Union for third-country nationals who file an asylum application in subsequence. This has arguably led to the responsibility of Greece in a disproportionate number of asylum cases. 4 It has been suggested, however, that the Greek authorities do not effectively provide a system for asylum seekers to file applications for international protection and at least since the abovementioned ruling of the ECtHR in M.S.S, they can, de-facto, not be transferred back to the Hellenic Republic, once arrived in another Member State. As a result of the high number of asylum applicants who enter the territory of the MS over the Turkish border to Greece and the impossibility for authorities of other MS to transfer asylum seekers to the Hellenic Republic, legal challenges surrounding the interpretation of provisions of the Dublin Regulations have arisen. Although only the Austrian experience is considered in this paper, this does not, however, detract from the fact that the underlying legal questions are relevant for practitioners in all MS. Austrian Context and the Asylum Court s Case Law Currently, the typical route for asylum seekers to enter the Austrian territory is via one of the so-called Western Balkan Routes, namely via Greece, Macedonia, Serbia and Hungary. 5 As a consequence, Austrian asylum authorities are currently given the task of assessing the following factual circumstances: an asylum seeker enters the territory of the MS at first instance in the Hellenic Republic, files no asylum application there, and subsequently travels via Macedonia, Serbia and Hungary to Austria, where he/she files an application for international protection. 6 Prior to the evident collapse of the Greek asylum system, the Austrian Asylum Court was inconsistent in its legal assessment. In some cases, consultations were carried out with Greek authorities, in others, Hungary was asked to take charge or take back the asylum seeker. However, ever since the ruling of the ECtHR, a uniform case law of the Asylum Court can be observed; the responsibility of Hungary under the Dublin Regulation is regularly determined. Following appeals against decisions of the Austrian Federal Asylum Office, serving as the first instance in asylum procedures, in which the practice of determining Hungary s responsibility was questioned, the Asylum Court provided a rationale for its rulings with the following arguments 7 : In cases, in which the asylum seeker has not filed an application for international protection before leaving the territory of the MS, the chain of connection has ripped ( die Anknüpfungskette ist gerissen ) and thus Greece immediately loses its responsibility under the Regulation. Thus, Hungary s responsibility according to Art 10(1) of the Regulation must be assumed. 79

3 The abovementioned reasoning is applicable, even if the asylum seeker has not left the territory of the MS for at least three months after staying in Greece, as Art 16(3) can only be applied to cases where the asylum seeker shall be taken back (meaning all cases in which the responsibility of a Member State was already determined because of the application for asylum in that Member State). The provision of Art 10(1), which states that responsibility shall cease 12 months after the date on which the irregular border crossing took place," can also not be applied, as this would lead to a conflict of values ( Wertungswiderspruch ): an application for asylum constitutes a stronger connecting factor than the mere irregular border crossing. It cannot be assumed that the period after which the responsibility of a Member State, in cases where an application for asylum was filed, ends, is shorter than in cases without an application. Hungary s responsibility may be assumed, independent of the applicability of Art 10(1) or Art 16(3) of the Regulation or the actual responsibility of Greece, as the CJEU has stated in its ruling of 21 December 2011, C-411/10 and C-493/10, that if a transfer to Greece is not possible because of systematic deficiencies in its asylum system, the catalogue of criteria can be applied anew to the effect that Hungary is responsible under the Regulation according to Art 10(1) of the Regulation. Legal Assessment of the Asylum Court s Rationale In the following paragraphs, an explanation of the relevant Articles of the Dublin Regulation will be provided. In this way, the Asylum Court s reasoning, as divided into four main arguments above, will be critically analysed. 8 The current situation of asylum seekers and Dublin returnees to Hungary and the asylum system there in light of Art 3 ECHR are explicitly not discussed in this Article. I. As cited above, the Asylum Court states that the chain of connection has ripped and thus Greece has immediately lost its responsibility under the Regulation, if no application for asylum was previously filed there. It is indeed correct that the Dublin Regulation provides for the possibility that the responsibility of a specific Member State can cease under certain circumstances. But the Regulation does not make mention of a chain of connection or a rip of such a chain. For the case of a third-country national leaving the territory of the MS, Art 16(3) stipulates a period of three months, after which the obligations specified in paragraph 1 (to take charge or take back) shall cease." This time limit was, however, not exceeded in the cases discussed here. II. As a second step, the Asylum Court states that Art 16(3) can only be applied to cases in which the responsibility of a Member State was already determined because of the application for asylum in that Member State (obligation to take back an asylum seeker). Art 16, the first provision of Chapter V of the Dublin Regulation, named Taking Charge and Taking Back, provides a clear distinction between cases of taking charge and taking back in its first paragraph. Accordingly, Art 16(1) lit a describes the obligations of a Member State to take charge, under the conditions laid down in 80

4 Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State while lit c, d and e, outline the duties of a Member State to take charge of an asylum seeker. Art 16(3), however, refers to the obligations specified in paragraph 1 as a whole, without undertaking a distinction whatsoever. In this regard, it is also necessary to emphasise that the main consequence of an application for asylum according to Art 4(1) Dublin Regulation is the initiation of a procedure to determine the responsible Member State in order to provide for the factual implementation of the conditions as foreseen by the hierarchy of criteria and in respect of the administrative regulations provided in Art and the Dublin implementing Regulation, rather than the triggering of the application of the Dublin Regulation as a whole. The responsibility of a Member State and the obligations according to Art 16(1) which come along with this responsibility are to be assumed already at the moment a criterion (for example, the irregular border crossing according to Art 10(1)) is objectively fulfilled. III. As already mentioned, Art 10(1) of the Regulation postulates a period of 12 months starting with the day of the irregular border crossing, after which the responsibility of a Member State ceases. This provision does not differentiate whether the third-country national has left the territory of the MS or not. Consequently, it has to be assumed that, in the cases relevant for this Article, Art 16(3) has to be applied as lex specialis. As the Asylum Court, however, starts with the premise of Art 16(3) not being applicable, the interpretation of Art 10(1) will be discussed here. The argument that an application for asylum constitutes a stronger connecting factor than the mere irregular border crossing and thus the period provided in Art 10(1) cannot be applied is based on the assumption that the Dublin Regulation entails a hierarchy of connecting factors." When reading the Regulation, one can see that this is clearly not the case. It is rather a hierarchy of criteria that is provided. Following this hierarchy, the application for asylum is conceived as a catch-all element," if no other criteria are met in a specific case. Thus, if one uses the argument of a hierarchy, the element of irregular border crossing must be understood as the superior criterion according to the Regulation. IV. Finally, it is necessary to examine the last argument of the Asylum Court s reasoning, namely the reference to the recent ruling of the CJEU. Basically, the Asylum Court is suggesting that, based on the ruling of the CJEU, the responsibility of Hungary under the Regulation is given, independent of the interpretation of Art 10(1) and 16(3) of the Regulation or the actual responsibility of Greece. The CJEU has stated that the finding that it is impossible to transfer an applicant to Greece, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that Regulation, the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application." In view of the exact wording of this judgment, it becomes obvious that this particular ruling is not applicable to the above-mentioned cases, as a repeated crossing of a 81

5 border in the meaning of Art 10(1) of the Regulation cannot be defined as one of the following criteria according to the CJEU s ruling. The exact same criterion, on whose basis the first Member State (Greece) is declared responsible, cannot be applied again regarding a second Member State (Hungary). 9 Further Considerations It must be argued that the Asylum Court s reasoning is in contradiction with the abovementioned intention underlying the Dublin Regulation, whereby in an area in which the free movement of persons is guaranteed in accordance with the provisions of the Treaties, each Member State is responsible vis-à-vis other MS for its actions in relation to the entry and residence of third-country nationals and must bear the consequences of its actions in the spirit of solidarity and cooperation in good faith." The Asylum Court s interpretation of Art 10(1) and Art 16(3) of the Regulation results in a situation where the inability of Greece to control its borders has no consequences. At the time of the adoption of the Dublin Convention in 1990, no continuous land link between Greece and the other MS existed. It can be ruled out that the EU legislators intended to relieve the Hellenic Republic, one of the signatory countries of the Convention, of any responsibility. Outlook The analysis presented in this Article primarily suggests that the Asylum Court s case law is in contradiction with the text of the Dublin Regulation and its underlying intentions. However, it must be admitted that the Dublin Regulation does not provide a very obvious solution to the case configuration discussed in this Article. In accordance with Art 267 of the Treaty on the Functioning of the European Union, the right to interpretation of Union Law is, however, reserved to the CJEU. As a consequence, the Asylum Court, as the last orderly instance in asylum proceedings, has an obligation to make reference unless it has established that the question raised is irrelevant or that the Union provision in question has already been interpreted by the Court or that the correct application of Union law is so obvious as to leave no scope for any reasonable doubt." If the Asylum Court fails to comply with this obligation, the right of asylum seekers to a trial before a legal judge according to Art 83(2) of the Austrian Federal Constitutional Act is violated. 10 It is worth mentioning that the legal question presented in this Article has also led to uncertainty in the judiciary of other MS. In Swiss case law, for example, Art 10(1) and 16(3) are interpreted inconsistently. 11 In a recent proposal from the Council of the European Union on a recast of the Dublin Regulation, an attempt is made to provide clarification: it shall be explicitly mentioned in Art 16(3) of the Regulation (Art 19 in the recast version) that this provision is applicable to MS requested both to take charge and take back. 12 Note 1 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18); 82

6 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, and corrigendum, OJ 2005 L 204, p. 24); Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13, and corrigendum, OJ 2006 L 236, p. 36). 2 In this ruling, the ECtHR concluded that Belgian authorities should not have expelled an asylum seeker to Greece, inter alia because of the deficiencies in the asylum procedure and the conditions of reception of asylum seekers in Greece. 3 Report on the evaluation of the Dublin system, MEMO/07/227, 6 May Frontex, Annual Risk Analysis 2012, available at pdf (accessed on 18 May 2012) 5 For more information on these routes please see Frontex, Western Balkans Annual Risk Analysis 2012, available at (accessed on 18 May 2012). 6 Typically, after leaving Greece, asylum seekers must travel for a few days until they arrive in Hungary. 7 See for example Asylum Court, S /2012, 31 January The Asylum Court s reasoning, which is cited and repeated in various other decisions of the Asylum Court, was translated and paraphrased by the author of this Article. This reasoning is essentially based on an opinion presented in relevant literature (Filzwieser/Sprung, Dublin II-VO). 8 For a detailed analysis of the Austrian judiciary, please consult Reyhani/Steinwendtner/Valenta, Aktuelle Herausforderungen bei Auslegung der Dublin II-VO, Migralex 2/ Malz, Überstellung und Selbsteintrittsrecht, Öffentliche Sicherheit 3-4/12, available at (accessed on 18 May 2012).. 10 Austrian Constitutional Court, Vfslg /1995, /1996, /2003, / See for example Swiss Federal Administrative Court, D-7490/2010, 1 February 2011 and E-7121/2010, 11 October Council of the European Union, 7683/12, 16 March 2012, Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast). 83

Ad-Hoc Query on Sovereignty Clause in Dublin procedure. Requested by FI EMN NCP on 11 th February Compilation produced on 14 th November 2014

Ad-Hoc Query on Sovereignty Clause in Dublin procedure Requested by FI EMN NCP on 11 th February 2014 Compilation produced on 14 th November 2014 Responses from Austria, Belgium, Bulgaria, Cyprus, Czech