Case C‑720/20

RO

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Cottbus)

Judgment of the Court (Grand Chamber), 1 August 2022

(Reference for a preliminary ruling – Common policy on asylum – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 (Dublin III) – Application for international protection lodged by a minor in his or her Member State of birth – Parents of that minor who have previously obtained refugee status in another Member State – Article 3(2) – Article 9 – Article 20(3) – Directive 2013/32/EU – Article 33(2)(a) – Admissibility of the application for international protection and responsibility for examining it)

1. Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation No 604/2013 – Procedures for taking charge and taking back – Minor child of the applicant – Indissociable nature of the situation of the minor vis-à-vis the situation of his or her family – Application by analogy to the application for international protection lodged by a minor, in his or her Member State of birth, whose parents are already beneficiaries of international protection in another Member State – Not permissible

   (European Parliament and Council Regulation No 604/2013, Arts 2(c) and (f), 3(2), 9 and 20(3))

   (see paragraphs 32, 34, 39-42, 44, 45, operative part 1)

2. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Procedure for examining an application for international protection – Application capable of being considered as inadmissible by the Member States – Ground – Prior granting of international protection by another Member State – Application by analogy to the application lodged by a minor who is not herself a beneficiary of international protection in another Member State, but whose parents are – Not permissible

   (European Parliament and Council Directive 2013/32, Art. 33(2)(a))

   (see paragraphs 51-55, operative part 2)

Résumé

The applicant, a national of the Russian Federation, was born in Germany in 2015. In March 2012, her parents and her five siblings, who also have Russian nationality, had obtained refugee status in Poland. In December 2012, they had left Poland for Germany, where they had made applications for international protection. The Republic of Poland refused to allow the German authorities’ request to take back those persons on the ground that they were already beneficiaries of international protection in its territory. Subsequently, the German authorities rejected the applications for international protection as inadmissible on account of the refugee status which those persons had already obtained in Poland. Nevertheless, the applicant’s family continued to reside in Germany.

In March 2018, the applicant lodged an application for international protection with the German authorities. That application was rejected as inadmissible, on the basis, inter alia, of the Dublin III Regulation. ( 1 )

The referring court, before which an appeal against that rejection decision has been brought, has doubts as to whether the Federal Republic of Germany is the Member State responsible for examining the applicant’s application and whether, if so, that Member State is entitled to reject that application as inadmissible under the Procedures Directive. ( 2 )

Specifically, that court is uncertain as to the application by analogy of certain provisions of the Dublin III Regulation and the Procedures Directive to the applicant’s situation. In that regard, it seeks to ascertain, first, whether – in order to prevent secondary movements – Article 20(3) of the Dublin III Regulation, concerning, inter alia, the situation of children born after the arrival of an applicant for international protection, ( 3 ) applies to an application for international protection lodged by a minor in his or her Member State of birth where his or her parents are already beneficiaries of international protection in another Member State. Second, it is unsure whether Article 33(2)(a) of the Procedures Directive ( 4 ) applies to a minor whose parents are beneficiaries of international protection in another Member State but who is not a beneficiary of such protection himself or herself.

The Court, sitting as the Grand Chamber, answers those questions in the negative. By its judgment, it clarifies the scope of the Dublin III Regulation and the Procedures Directive in the context of secondary movements of families which are already beneficiaries of international protection in one Member State to another Member State where a new child is born.

Findings of the Court

In the first place, the Court finds that Article 20(3) of the Dublin III Regulation is not applicable by analogy to a situation in which a minor and his or her parents lodge applications for international protection in the Member State in which that minor was born, in circumstances where his or her parents are already the beneficiaries of international protection in another Member State. First, that provision presupposes that the minor’s family members still have the status of ‘applicant’ with the result that it does not govern the situation of a minor who was born after those family members obtained international protection in a Member State other than that in which the minor was born and resides with his or her family. Second, the situation of a minor whose family members are applicants for international protection and that of a minor whose family members are already beneficiaries of such protection are not comparable in the context of the scheme established by the Dublin III Regulation. The concepts of an ‘applicant’ ( 5 ) and that of a ‘beneficiary of international protection’ ( 6 ) cover separate legal statuses governed by different provisions of that regulation. Consequently, an application by analogy of Article 20(3) to the situation of a minor whose family members are already beneficiaries of international protection would mean that both that minor and the Member State that has granted that protection to the members of his or her family would not be subject to the application of the mechanisms provided for by that regulation. The consequence of this, inter alia, would be that such a minor could be the subject of a transfer decision without a procedure for taking charge being initiated for him or her.

Furthermore, the Dublin III Regulation lays down specific rules for situations in which the procedure initiated in respect of the applicant’s family members has been concluded and they are therefore allowed to reside as beneficiaries of international protection in a Member State. Specifically, Article 9 of the Dublin III Regulation provides that, in such a situation, the latter Member State is to be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing. Admittedly, that condition precludes the application of Article 9 where no such desire is expressed. That situation is likely to arise in particular where the application for international protection of the minor concerned is made following an unlawful secondary movement of his or her family from one Member State to the Member State in which that application is lodged. However, that fact in no way detracts from the fact that the EU legislature laid down, in that article, a provision which specifically covers the situation concerned. Furthermore, in the light of the clear wording of Article 9, that requirement that the desire be expressed in writing cannot be derogated from.

In those circumstances, in a situation in which the persons concerned have not expressed, in writing, the desire that the Member State responsible for examining a child’s application for international protection should be the Member State in which that minor’s family members were allowed to reside as beneficiaries of international protection, the Member State responsible will be determined pursuant to Article 3(2) of the Dublin III Regulation. ( 7 )

In the second place, the Court finds that Article 33(2)(a) of the Procedures Directive does not apply by analogy to an application for international protection lodged by a minor in a Member State where it is not that child himself or herself, but his or her parents, who are beneficiaries of international protection in another Member State. In that regard, the Court notes that that directive sets out an exhaustive list of the situations in which the Member States may consider an application for international protection to be inadmissible. Moreover, the provisions laying down those grounds of inadmissibility constitute a derogation from the obligation on Member States to examine the substance of all applications for international protection. It follows from the exhaustive and derogating nature of that provision that it must be interpreted strictly and cannot therefore be applied to a situation which does not correspond to its wording. The scope ratione personae of that provision cannot, consequently, extend to an applicant for international protection who is not himself or herself a beneficiary of such protection.

( 1 ) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31) (‘the Dublin III Regulation’).

( 2 ) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60) (‘the Procedures Directive’).

( 3 ) Under that provision, which relates to the procedure for taking charge, the situation of a minor who is accompanying the applicant for international protection and meets the definition of family member is to be indissociable from that of his or her family member and is to be a matter for the Member State responsible for examining the application for international protection of that family member, even if the minor is not individually an applicant, provided that it is in the minor’s best interests. The same treatment is to be applied to children born after the applicant arrives on the territory of the Member States, without the need to initiate a new procedure for taking charge of them.

( 4 ) Under that provision, the Member States may consider an application for international protection as inadmissible if another Member State has granted international protection.

( 5 ) Within the meaning of Article 2(c) of the Dublin III Regulation.

( 6 ) Within the meaning of Article 2(f) of the Dublin III Regulation.

( 7 ) In accordance with that provision, where no Member State can be designated as responsible on the basis of the criteria listed in the Dublin III Regulation, the first Member State in which the application for international protection was lodged is to be responsible for examining it.