Brussels, 12/01/2012 (Agence Europe) - The withdrawal of a demand for asylum by an asylum seeker that had only presented a demand for asylum in a single member state will have no effect on the applicability of the Dublin II regulation or on the determination of the member state responsible for examining an asylum application in compliance with what is established in the same regulation. These considerations are valid, irrespective of the stage of the procedure in which the withdrawal is made.
This is the response of the European Court of Justice advocate general, Verica Trstenjak, in her conclusions made on 12 January. This response was made in an effort to answer questions posed by the Administrative Court of Appeal in Stockholm (Sweden) in Case C-620/10. The question surrounding the case involves the Kastrati family, which entered France in 2009 with a short-term visa and without having demanded asylum. The family then emigrated to Sweden and submitted a demand for asylum, which it then withdrew, as well as a demand for a residency permit. The Swedish authorities rejected the two requests, claiming that this was the responsibility of France, the country in which the family had entered EU territory, and ordered the transfer of the family to this country in compliance with the Dublin II Regulation, which establishes criteria and mechanisms of determination for the member state responsible for examining a request for asylum presented in a member state by a third country national (EC Regulation.343/200).
The interested parties appealed against the decision and the Swedish court is requesting the ECJ to provide it with a response regarding the following: whether the regulation remains applicable in the event of the withdrawal of a demand for asylum which had activated the application process; whether the stage of proceedings in the demand for asylum to which the withdrawal of this demand is made affects the applicability of the regulation; whether, irrespective of the withdrawal of the demands for asylum, the transfer procedure for the interested parties towards the member state that had accepted their reception has to be implemented.
To justify her conclusions, the advocate general pointed out that it would be contrary to the objectives of the regulation if an asylum seeker “can influence the determination of the member state responsible for examining an asylum application” by continuously submitting new requests whilst withdrawing previous demands. The regulation also establishes that the member state responsible for the asylum seeker is the state that was principally involved in the entry or the stay of the latter on the territory of the member states, which in this case was France, through granting the visa. Finally, on the question of the applicability of the regulation, even in the event of the request for asylum being withdrawn, only the definitive closure on asylum procedure can remove the member state's responsibility that had been conferred upon it and there is no reason to consider the procedure as finished when a third country national no longer maintains their request for asylum but only once the appropriate authority of the member state has adopted a definitive decision closing the case in question. This is effectively what Sweden did by rejecting the request. (FG/transl.fl)