Mark Klaassen, Leiden University

Photo credit: DFID

Unaccompanied minors can appeal a receiving EU member state’s denial of a request to assume responsibility for their asylum case. This conclusion from the Court of Justice of the EU (CJEU) comes from its judgment in the I. & S. case. Interestingly, the District Court of Haarlem in the Netherlands initially posed the question because the Dublin III Regulation, which governs such transfers, doesn’t explicitly provide for this appeal right. The current “take charge” process transpires between two Member States without direct involvement from the asylum seeker. Essentially, the referring court inquired whether the right to an effective remedy, as protected by Article 47 of the Charter of Fundamental Rights, necessitates an appeal procedure for denied take charge requests. This blog post will analyze the Court’s reasoning and its ramifications on the application of the Dublin III Regulation.

The case involved an unaccompanied Egyptian minor who sought asylum in Greece. Wishing to join his uncle residing in the Netherlands, a take charge request was sent to the Netherlands based on the Dublin III Regulation. As per Article 8(2), Greece determined the Netherlands was responsible for the applicant’s asylum request. However, the Netherlands rejected this, deeming the family ties to the uncle unsubstantiated. A reconsideration request from Greece was also denied. Subsequently, legal action against this denial was initiated in Dutch courts by the applicant and his uncle. Dutch authorities declared the administrative appeal inadmissible due to the Dublin III Regulation lacking provisions for appealing a take charge refusal. This prompted the referring court to seek clarification from the CJEU through preliminary questions.

While Article 27(1) of the Dublin III Regulation allows appeals against transfer decisions made by the sending state, the receiving state’s refusal to accept a transfer negates the existence of a transfer decision. The CJEU, however, notes that while Article 27(1) doesn’t explicitly provide a right to appeal in such cases, it doesn’t preclude it either. The Court, citing past case law, emphasizes that the Dublin III Regulation not only governs inter-state procedures but also bestows rights upon asylum seekers. This assertion was the basis for the Ghezelbash ruling, which stipulated that asylum seekers can appeal the criteria determining the Member State responsible for their case.

This reasoning was applied in the current judgment concerning the refusal of an unaccompanied minor’s take charge request. The Court determined that an asylum seeker’s legal protection shouldn’t hinge on the acceptance or refusal of a take charge request, as this could hinder the unaccompanied minor’s right to family reunification with a legal resident in the receiving state. Therefore, the Court concluded that the right to an effective remedy allows an asylum seeker to challenge both the misapplication of the criteria and the refusal of a take charge request. Further solidifying this stance, the Court invoked Article 7 (right to respect for family life) and Article 24(2) (best interests of the child) of the Charter, emphasizing the right to appeal a refusal is grounded in these fundamental rights. The residing family member in the receiving state, however, is not granted this right to appeal a refused take charge request. The Court argues that since Article 27 doesn’t afford them appeal rights generally, this extends to the refusal of take charge requests.

This judgment necessitates that Member States provide an avenue to appeal denied take charge requests within their jurisdictions, marking a new development in EU asylum law. However, the Court stopped short of outlining specifics for this appeal procedure. Advocate-General Emiliou, in his Opinion, highlighted that while the Regulation lacks concrete guidance, the appeal procedure falls under the procedural autonomy of Member States, bound by the principle of effectiveness. He posits that this necessitates informing the asylum seeker about the reasons for the refusal, suggesting that the sending Member State authorities should relay these reasons as provided by the receiving state. Though not explicitly endorsed by the Court, the AG’s reasoning remains pertinent. The lack of information regarding the refusal reason would undermine the effectiveness of the appeal right, leaving the asylum seeker unaware of the grounds for denial. Furthermore, the receiving state is already obligated to justify the refusal to the sending state according to Article 5(1) of Commission Regulation (EC) No 1560/2003. Given the applicant’s presence in the sending state when the refusal is issued, it appears most practical for that state’s authorities to inform the applicant of the refusal reasons and the appeal procedure. However, this hinges on effective coordination between both involved Member States.

Given the established right of an asylum seeker to appeal both the application of criteria (Ghezelbash) and a take charge refusal (I. & S.) under the Dublin III Regulation, the question arises: can they also appeal a sending state’s initial refusal to even make a take charge request? Applying the Court’s reasoning from I. & S., it appears plausible. The Dublin III Regulation aims to provide concrete rights to asylum seekers and lays out criteria for determining the responsible Member State. However, the asylum seeker is reliant on the sending state to initiate a take charge request. If this is refused outright, the Regulation offers no recourse for the asylum seeker. Despite Article 27 of the Dublin III Regulation only explicitly granting the right to appeal a transfer decision, interpreting the criteria as direct rights for asylum seekers implies that refusing to even apply these criteria undermines the asylum seeker’s right to potentially be transferred to a Member State with resident family. Therefore, challenging a refusal to even initiate a take charge request should be possible.

The Court’s reasoning is particularly relevant to the ongoing Dublin system reforms. The Proposal for a Regulation on asylum and migration management (COM(2020) 610 final), specifically Article 33(1), proposes limiting the right to appeal. It suggests limiting the legal remedy’s scope to risks of ill-treatment under Article 4 of the Charter and the application of family life criteria. This Commission proposal seemingly tries to curb the implications of the Ghezelbash ruling. However, given the I. & S. judgment reaffirming Ghezelbash and stressing the right to appeal’s foundation in the Charter of Fundamental Rights, it seems improbable that the Court would endorse such limitations to the legal remedy’s scope.

The Dublin III Regulation can effectively facilitate family reunification for asylum seekers, particularly given that the structure of EU asylum law often results in family members residing in different Member States. This was the EU legislature’s intention, reflected in the prioritization of family ties within the Dublin system’s criteria. The CJEU’s judgment in I. & S. underscores that denying a take charge request can infringe on fundamental rights, necessitating a legal remedy to be provided by the Member States. This empowers asylum seekers to enforce the application of Dublin criteria and strive for reunification with their families.