28.03.2016
In a judgment, delivered on 17th March 2016, the Court of Justice of the European Union (ECJ) ruled that Regulation (EU) 604/2013 (Dublin III) allows a Member State to transfer asylum seekers to a safe third country notwithstanding the fact that it had already taken charge of the asylum seekers. The case also raised some concerns regarding the qualification of Serbia, candidate for an EU Member State, as a “safe third country” and the need for further harmonisation of the asylum procedure on EU level.
THE CASE BEFORE THE ECJ:
The ECJ was requested to deliver an urgent preliminary ruling (Article 107 of the Rules of Procedure of the Court of Justice) concerning a decision of Hungary to transfer Mr. Mirza, a Pakistan national, to Serbia. In fact, Mr. Mirza lodged an asylum application in Hungary and, in the course of the procedure, moved to the Czech Republic. Hungary discontinued the asylum procedure. Solicited by the Czech authorities under Article 18 of the Dublin III Regulation, Hungary consented to take back Mr. Mirza, recognising herself responsible to process the asylum application. Instead of taking charge of the person, Hungary dismissed the application as inadmissible and ordered a transfer to Serbia - a third country where M. Mirza had previously made transit and which was deemed to be “sure” in the meaning of the EU Asylum law. The case was brought before the Administrative and Labour court of Debrecen (Debreceni közigazgatási és munkaügyi bíróság), which referred a preliminary question to the ECJ seeking interpretation of Articles 3 and 18 of the Dublin III Regualtion.
THE COURT’S FINDINGS
The ECJ ruled that, at the time being, the Dublin III Regulation did not include a non-refoulement principle. Therefore, due to its limited scope of application, the Dublin III Regulation did not preclude Member States to transfer asylum seekers to a non-EU country, even if they had clearly declared to be responsible to process the asylum application.
Concerning the qualification of Serbia as a “safe third country”, the ECJ underlined that EU law, and in particular Directive 2013/32/EU provided some criteria allowing to classify Serbia as a “safe third country”, but the decision to include a State in such a list relied only on each Member Stat’s discretion. In this regard, the ECJ underlined that Hungary was not obliged to inform the Czech Republic for the possibility to transfer Mr. Mirza to Serbia. In fact, the ECJ did not take in consideration the concerns expressed by the international community concerning the refoulement practices constantly developed by EU Member States, including Hungary (see for example “Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary”, European Council on Refugee and Exiles, January 2016, http://statewatch.org/news/2016/jan/eu-ecre-factsheet-dublin-transfers-to-hungary-1-16.pdf
Concerning the renewal of the asylum procedure, the ECJ found that the Dublin III Regulation does not impose such an obligation. However, it could be preferable for Member States to allow the competent authority to continue the asylum procedure from the point at which it had been discontinued, following the practice established under Article 28, §2 of Directive 2013/32/EU.
Source: Court of Justice, Judgment of 17th March 2016, Case C-695/15 PPU, Shiraz Baig Mirza v Bevándorlási és Állampolgársági Hivatal
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