An asylum seeker in the European Union must be able to invoke circumstances arising after the adoption of a transfer decision against which he or she is appealing, but it is for each Member State to lay down the procedural arrangements for legal remedies designed to ensure such effective judicial protection, the Court of Justice of the EU ruled on Thursday 15 April in a preliminary judgment (Case C-194/19).
In this judgment, it answered a question from the Belgian Council of State in a dispute between a non-Member State national and the Belgian State.
H. A., a non-Member State national who had applied for asylum in Belgium, had his application rejected and was transferred to Spain, after the Spanish authorities agreed to take him in.
Shortly afterwards, H.A.’s brother also applied for asylum in Belgium.
H. A. then lodged an appeal against the transfer decision concerning him, arguing in particular that the respective asylum applications should be examined together. This appeal was rejected on the grounds that H.A.’s brother arrived in Belgium after the adoption of the contested decision, and that this circumstance could not therefore be taken into consideration in assessing the legality of this decision. H. A. then appealed to the Belgian Council of State, claiming that his right to an effective remedy under the Dublin III Regulation and Article 47 of the EU Charter of Fundamental Rights had been infringed.
Irrespective of whether his brother’s arrival was in fact likely to affect the identity of the Member State responsible for examining H.A.’s asylum application, the Council of State must determine whether an asylum seeker should be able to rely on circumstances subsequent to the adoption of a transfer decision concerning him.
In its judgment, the Court rules that EU law precludes national legislation which provides that the court hearing an appeal against a transfer decision may not, in considering that appeal, take into account circumstances subsequent to the adoption of that decision which are decisive for the correct application of the Dublin III Regulation.
This is not the case if that legislation provides for a specific remedy that can be exercised following the occurrence of such circumstances, provided that this remedy allows for an ex nunc examination of the situation of the person concerned, the results of which are binding on the competent authorities. The Court recalls that the Dublin III Regulation provides that a person who is the subject of a transfer decision has the right to effective remedy against that decision.
However, the Union has harmonised only some of the procedural arrangements for the right of appeal against the transfer decision, and the Dublin III Regulation does not specify whether it necessarily implies that the court seised can carry out an ex nunc examination of the legality of the transfer decision.
Therefore, under the principle of procedural autonomy, it is up to each Member State to regulate these arrangements, provided that they are not less favourable than those governing similar situations under national law (principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness), the Court emphasises. (Original version in French by Aminata Niang)