In exceptional circumstances, such as the 2015 refugee crisis, Advocate General Eleanor Sharpston considers, in conclusions handed down on Thursday 8 June (cases C-490/16 and C-646/16), that the member state in which applications for international protection were first lodged is responsible for examining those applications.
The above two cases relate to the Western Balkan migration route, which in 2015 was used by over a million people to enter the European Union. The first case (C-490/16 A. S.) concerns Mr A.S., a Syrian national who entered the EU at the border between Serbia and Croatia. He was authorised to enter Croatia and the Croatian authorities organised his onward transport to the Slovenian national border. In February 2016, he lodged an application for asylum with the Slovenian authorities. Believing that, under European rules, Mr A.S. had entered Croatia irregularly by crossing the border between Serbia and Croatia, the Slovenian authorities took the view that it was the responsibility of Croatia to examine Mr A.S.'s asylum application – a view challenged by Mr A.S.
In the second case (C-646/16), two Afghan sisters and their children entered the EU through Greece before leaving EU territory three days later, in order to re-enter it again through Croatia. They then reached Austria, where they lodged an asylum application. Ms Khadija Jafari and Ms Zainab Jafari contested the refusal of the Austrian authorities to assess their applications, but the Austrian authorities were of the view that it was the responsibility of the Croatian authorities to do this, as Greece had ongoing systematic failings in its asylum procedure.
The Dublin III Regulation (604/2013) provides for the member state of initial entry into the EU to examine the asylum application of a migrant who has entered the territory of this state illegally.
The Slovenian Supreme Court and the Austrian Supreme Administrative Court asked for clarification from the European Court of Justice, where Advocate General Sharpston notes that it is the responsibility of EU judges to provide a legal solution in response to the unprecedented circumstances of the refugees crisis.
Crossing EU external border is neither regular nor irregular
According to Advocate General Sharpston, the fact that certain member states authorised the persons concerned to cross the external border of the EU and subsequently to travel through their territory to other member states in order to lodge an asylum application does not equate to the issuance of a visa.
In the cases in question, the entry of Mr A.S. and the Jafari families cannot be considered as regular, as no procedure for obtaining a visa had been started. Furthermore, their entry could not be considered as a visa-waived entry under the Dublin III Regulation, as the member states were not unilaterally able to stop applying the requirement to possess a visa for reasons other than those written in the European rules. However, Advocate General Sharpston is of the view that their entry into the EU could have been assessed on humanitarian grounds by applying a derogation in the Schengen Borders Code.
Advocate General Sharpston concludes that, in the context of the massive inflow of migrants applying for asylum, the situation in which a member state authorises these people to enter the EU and cross its territory to reach other member states no longer constitutes an irregular crossing of an EU external border under the Dublin III Regulation.
This is all the more the case, Advocate General Sharpston believes, as the transit countries have tolerated, and indeed actively facilitated, the mass crossings of the EU's external border and transit through their territories.
She also notes that European legislation was not drawn up to address the circumstances of 2015.
In the end, Advocate General Sharpston is of the opinion that in these specific cases, Croatia would not have been able to cope with the migration situation if it had had to be responsible for hosting all the migrants that entered its territory (685,068 people between September 2015 and March 2016) and for examining their asylum applications. Consequently, as provided for under the Dublin III Regulation, asylum applications should be examined by the first member state where the application is lodged – that is, by Slovenia in the case of Mr A.S. and Austria in the case of the Jafari families. (Original version in French by Mathieu Bion)