Case C‑19/21

I
and
S

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag zittingsplaats Haarlem)

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

(Reference for a preliminary ruling – Regulation (EU) No 604/2013 – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Article 8(2) and Article 27(1) – Unaccompanied minor with a relative legally present in another Member State – Refusal by that Member State of that minor’s take charge request – Right to an effective remedy of that minor or of that relative against the refusal decision – Articles 7, 24 and 47 of the Charter of Fundamental Rights of the European Union – Best interests of the child)

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 – Unaccompanied minor – Relative legally present in another Member State – Refusal by that Member State of the take charge request in respect of that minor – Obligation for that Member State to grant that unaccompanied minor a right to an effective judicial remedy against that decision – No obligation to grant such a right to the relative of that minor

(Charter of Fundamental Rights of the European Union, Arts 7, 24 and 47; European Parliament and Council Regulation No 604/2013, Arts 2(h) and (j), 8(2) and 27(1))

(see paragraphs 35, 38-46, 49, 50, 55, operative part)

Résumé

When he was still a minor, I, an Egyptian national, submitted an application for international protection in Greece, in which he expressed his wish to be united with S, his uncle, also an Egyptian national, who was legally resident in the Netherlands. In the light of those circumstances, the Greek authorities submitted a take charge request to the Netherlands authorities in respect of I, on the basis of the provision of the Dublin III Regulation ( 1 ) which provides that, where it is in the best interests of the unaccompanied minor, the Member State responsible for examining his or her application is to be that where a family member who is able to take care of him or her is legally resident. However, the State Secretary ( 2 ) rejected that application, as well as the request for re-examination.

I and S also submitted an objection, which the State Secretary rejected as manifestly inadmissible on the ground that the Dublin III Regulation does not provide for the possibility for applicants for international protection to challenge a decision rejecting a take charge request. Consequently, I and S brought an action against that decision before the rechtbank Den Haag (District Court, The Hague, Netherlands), claiming that they each had the right to bring such judicial proceedings under Article 27(1) of the Dublin III Regulation. ( 3 )

In that context, the District Court of The Hague questioned the Court of Justice concerning the legal remedies available to an unaccompanied minor, an applicant for international protection, and his or her relative, against a decision rejecting a take charge request.

The Court, sitting as the Grand Chamber, holds that Article 27(1) of the Dublin III Regulation, read in conjunction with Articles 7, 24 and 47 of the Charter of Fundamental Rights of the European Union, ( 4 ) requires the Member State to which a take charge request ( 5 ) has been made to grant a right to a judicial remedy against its refusal decision to the unaccompanied minor who applies for international protection, but not to the relative of that minor.

Findings of the Court

As a preliminary point, the Court notes that, although, based on a literal interpretation, Article 27(1) of the Dublin III Regulation appears to grant the applicant for international protection a right to a remedy only for the purpose of challenging a transfer decision, the wording of that provision nevertheless does not exclude the possibility that an unaccompanied minor applicant may also be granted a right to a remedy for the purpose of challenging a decision to refuse a take charge request based on Article 8(2) of the Dublin III Regulation.

In order to determine whether Article 27(1) of the Dublin III Regulation, read in the light of Articles 7, 24 and 47 of the Charter, requires that there be a remedy against such a decision refusing a take charge request, that provision must be interpreted taking into account not only its wording but also its objectives, its general scheme and its context, and in particular its evolution in connection with the system of which it forms part.

In that regard, the Court notes that, in accordance with the first paragraph of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy, in compliance with the conditions laid down in that article. That right corresponds to the obligation imposed on the Member States, in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

As regards the determination of the Member State responsible for examining the application for international protection and compliance with the binding responsibility criterion, set out in Article 8(2) of the Dublin III Regulation, the Court observes that the judicial protection of an unaccompanied minor applicant cannot vary depending on whether that applicant is the subject of a transfer decision, taken by the requesting Member State, or of a decision by which the requested Member State refuses the request to take charge of that applicant. Those decisions are both liable to undermine the right, which the unaccompanied minor derives from that article, to be united with a relative who can take care of him or her, for the purposes of the examination of his or her application for international protection. It follows that the minor concerned must be allowed, in both cases, in accordance with the first paragraph of Article 47 of the Charter, to bring proceedings to plead the infringement of that right.

In the present case, in accordance with Article 27(1) of the Dublin III Regulation, if I, after arriving in Greece, had travelled to the Netherlands and made his application for international protection there, and the Greek authorities had agreed to take charge of him as the Member State of first arrival, he would undoubtedly have been entitled to bring legal proceedings against the transfer decision adopted by the Netherlands authorities, on the ground that one of his relatives was resident in the Netherlands. In such a case, he could thus effectively plead the infringement of the right he derives as an unaccompanied minor under Article 8(2) of the Dublin III Regulation. By contrast, if Article 27(1) of the Dublin III Regulation were to be interpreted literally, an applicant who remains in the Member State of entry and makes his or her application for international protection there would be deprived of that possibility since, in that situation, no transfer decision is adopted.

The Court concludes that an unaccompanied minor applicant must be able to exercise a judicial remedy, under Article 27(1) of the Dublin III Regulation, not only where the requesting Member State adopts a transfer decision, but also where the requested Member State refuses to take charge of the person concerned, in order to be able to plead an infringement of the right conferred by Article 8(2) of that regulation, particularly since that regulation seeks to ensure full respect for the fundamental rights of unaccompanied minors, guaranteed in Articles 7 and 24 of the Charter.

However, Article 27(1) of that regulation does not confer on the applicant’s relative, who resides in the requested Member State, a right to a remedy against such a rejection decision. Furthermore, since neither Article 7 and Article 24(2) of the Charter nor Article 8(2) of the Dublin III Regulation confer on him any rights on which he could rely in legal proceedings, that relative also cannot derive a right to a remedy against such a decision on the basis of Article 47 of the Charter alone.

( 1 ) Article 8(2) of 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. 108) (‘the Dublin III Regulation’).

( 2 ) The Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’).

( 3 ) That provision lays down the right of the applicant for international protection to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.

( 4 ) ‘the Charter’.

( 5 ) On the basis of Article 8(2) of the Dublin III Regulation.