If a member state omits to apply, within deadline, for an asylum seeker to be handed over to the authorities of the member state in which the first application was made, that member state becomes responsible for processing an application made on its territory, the Court of Justice of the EU ruled in a judgment returned on Thursday 5 July (case C-213/17).
A Pakistani national submitted two asylum applications in the Netherlands, which were rejected and the second appealed against at the time of the events in question. Suspected of committing a sex attack, he fled to Italy, where he submitted a third application.
Italy failed to ask the Dutch authorities to take him back within the deadline, but then executed the European arrest warrant issued by the Netherlands against him.
One month later, the Netherlands asked Italy to take him back, as it considered that Italy should process the asylum application made on its territory. Italy agreed, but the individual opposed it and took legal action in the Netherlands.
In its judgment, the Court disagrees with the conclusions of the Advocate General (see EUROPE 12040).
The Court considers that the Italian authorities could have applied for the individual to be returned to the Netherlands within the deadline, but as they did not, the responsibility was transferred to the member state - i.e. Italy - in which an asylum application had been made, pursuant to the 'Dublin II' regulation (604/2013).
Transfer of responsibility cannot be prevented on grounds that the Netherlands was responsible for examining two previous applications and that there was an appeal pending upon expiry of the same deadlines.
The Court also found that the fact of returning the individual to the Netherlands after the execution of the European arrest warrant did not prevent the Dutch authorities from applying to the Italian authorities to take him back.
The opposite solution would deter member states from requesting the transfer of an asylum seeker wanted for a criminal offence, to avoid being responsible for examining his or her asylum application at the end of criminal proceedings. It would also encourage impunity and reduce the effectiveness of law enforcement measures in the country concerned, the Court argues. (Original version in French by Mathieu Bion)