Asylum applicants can challenge a member state’s decision to transfer them to another member state on the basis that the “take charge request” sent by the first member state was not made within the time limits set out in the Dublin III regulation (604/2013), said Advocate General Eleanor Sharpston in an opinion delivered on Tuesday 20n June (case C-670/16).
Mr Tsegezab Mengesteab, an Eritrean national, entered European Union territory on 4 September 2015 by crossing the Mediterranean Sea from Libya to Italy. He travelled overland, arriving in Germany on 12 September 2015. On 14 September, the German authorities provided him with an attestation in response to his informal request for asylum. On 22 July 2016, Mengesteab lodged a formal application for asylum in Germany.
On 19 August 2016, the German authorities checked the Eurodac database, which showed that Mengesteab’s fingerprints had been taken in Italy but that he had not made an application for international protection there. The German authorities, taking the view that, in accordance with the regulation, Italy was the member state responsible for examining Mengesteab’s application, made a take charge request to their Italian counterparts on the same day. On 10 November 2016, the German authorities refused Mengesteab’s application for asylum. Mengesteab challenged that decision, arguing that Germany’s take charge request was made after the expiry of the three-month time limit set out in European law. In his view, time for making the take charge request started to run once he had made his informal request for asylum on 14 September 2015.
Asked by the Verwaltungsgericht Minden (Administrative Court, Minden) for guidance, the Advocate General takes the view that, under the Dublin III regulation, an asylum seeker is entitled to bring an appeal against a transfer decision made as a result of a take charge request when the member state did not comply with the set time limits, in particular where the failure to meet time limits has an impact on the progress of the application for asylum.
In Advocate General Sharpston’s view the Dublin asylum system is no longer a purely inter-state mechanism and challenges to transfer decisions on the grounds of failure to adhere to time limits will never pre-empt appeals processes.
The Advocate General reasons, further, that an application for asylum is deemed to have been lodged within the meaning of the Regulation when a form or report reaches the national competent authorities. Given that there is no standard form for applications for international protection, it is for each Member State to determine the exact content of the form and the report.
In this case, the informal request for asylum made on 14 September 2015 did not constitute the lodging of an application for international protection within the meaning of the regulation. Mengesteab’s formal application was lodged on 22 July 2016 and the take charge request made by the German authorities on 19 August 2016 thus complied with the time limits in the regulation, the Advocate General determined. (Original version in French by Mathieu Bion)