The United Kingdom's notification of its intention to leave the European Union does not suspend the application of EU law in that Member State and, therefore, the United Kingdom remains responsible for processing an asylum application until it is actually withdrawn from the Union, the EU Court of Justice ruled on Wednesday 23 January (Case C-661/17).
In 2017, the Irish authorities ordered the transfer to the United Kingdom of S.A. and M.A., and their child A.Z., considering that their British counterparts were responsible for processing their asylum applications in accordance with the so-called Dublin III Regulation (604/2013).
The Court, when asked by the Irish High Court, ruled in favour of the Irish authorities on this point. It had issued a similar judgment on the application of the European arrest warrant system which applies to the United Kingdom until the effective Brexit (see EUROPE 12099).
Under the discretionary clause (Article 17) of the Dublin III Regulation, a Member State may decide to examine an application for international protection, even if such examination is not its responsibility under the criteria for determining the Member State responsible.
On this point, the Court notes that this clause is optional and not subject to any conditions and that the decision not to apply it cannot be appealed (since an appeal procedure exists against any decision to transfer an asylum seeker). This clause allows each Member State to exercise its sovereignty on the basis of political, humanitarian or practical considerations.
The United Kingdom's intention to leave the EU does not oblige another Member State (in this case Ireland) that has determined that London is responsible for processing an asylum application to examine it itself, the EU judge considers.
Moreover, in the present case, European legislation does not oblige Ireland either to take into account the best interests of the child and to examine its own asylum application. On the other hand, the child's asylum application must be examined inseparably with those of his or her parents.
Finally, the Court emphasises, it is for each Member State to determine which national authorities are competent to apply the Dublin III Regulation. It may well be that the responsibility for determining the country responsible for examining an asylum application and the responsibility for activating the discretionary clause be assigned to two different authorities. (Original version in French by Mathieu Bion)