1. 

By these two requests for preliminary rulings the Raad van State (Council of State, Netherlands) seeks guidance on the application of Regulation (EU) No 604/2013 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. ( 2 ) In circumstances where third-country nationals move from one Member State to another Member State lodging requests for international protection in each, the second Member State sends a take back request and adopts a decision to transfer the person concerned to the first Member State. The referring court asks: (i) whether the second Member State is able (or indeed required) to apply the criteria laid down in the Dublin III Regulation (in particular those concerning family unity) to determine which Member State is responsible; and (ii) whether the rights of review or appeal guaranteed by that regulation are available to challenge a misapplication of those criteria.

2.

Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) ( 3 ) guarantees the right to respect for family life. ( 4 ) The first paragraph of Article 47 provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a court or tribunal. ( 5 )

3.

Article 52(3) states that in so far as the Charter ‘… contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the [ECHR]. This provision shall not prevent Union law providing more extensive protection’.

4.

The Dublin system provides the criteria and mechanisms to establish the Member State responsible for examining applications for international protection. ( 6 )

5.

The recitals of the Dublin III Regulation include the following statements:

6.

Article 1 states that the Dublin III Regulation ‘… lays down 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 (“the Member State responsible”)’. ( 13 )

7.

The following terms are defined in Article 2:

…

8.

Article 3 is entitled ‘Access to the procedure for examining an application for international protection’. It provides:

‘(1)   Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

(2)   Where no Member State responsible can be designated 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 shall be responsible for examining it.

Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of [the Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

…’

9.

Chapter III of the regulation (‘Criteria for determining the Member State responsible’) begins with Article 7, which sets out the hierarchy of the ‘Chapter III criteria’ and states:

‘(1)   The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.

(2)   The Member State responsible in accordance with the criteria set out in this Chapter shall be determined on the basis of the situation obtaining when the applicant first lodged his or her application for international protection with a Member State.

(3)   In view of the application of the criteria referred to in Articles 8, 10 and 16, Member States shall take into consideration any available evidence regarding the presence, on the territory of a Member State, of family members, relatives or any other family relations of the applicant, on condition that such evidence is produced before another Member State accepts the request to take charge or take back the person concerned, pursuant to Articles 22 and 25 respectively, and that the previous applications for international protection of the applicant have not yet been the subject of a first decision regarding the substance.’ ( 14 )

10.

Article 9 (part of Chapter III) concerns family members who are beneficiaries of international protection. It provides that, ‘where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing’.

11.

Article 17(1) states: ‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in [the Dublin III Regulation].’ ( 15 )

12.

The obligations of the Member State responsible are contained in Chapter V. These include an obligation under Article 18(1)(a) to ‘take charge, under the conditions laid down in Articles 21, 22 and 29, of an applicant who has lodged an application in a different Member State’ and (b) to ‘take back, under the conditions laid down in Articles 23, 24, 25 and 29, an applicant whose application is under examination and who made an application in another Member State or who is on the territory of another Member State without a residence document’. ( 16 )

13.

Chapter VI sets out the procedures for taking charge and taking back applicants for international protection. Pursuant to Article 20 which is in Section I:

‘(1)   The process of determining the Member State responsible shall start as soon as an application for international protection is first lodged with a Member State.

(2)   An application for international protection shall be deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible.

…

(5)   An applicant who is present in another Member State without a residence document or who there lodges an application for international protection after withdrawing his or her first application made in a different Member State during the process of determining the Member State responsible shall be taken back, under the conditions laid down in Articles 23, 24, 25 and 29, by the Member State with which that application for international protection was first lodged, with a view to completing the process of determining the Member State responsible.

…’

14.

Section II of Chapter VI concerns the procedures for take charge requests. Article 21(1) states: ‘Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged within the meaning of Article 20(2), request that other Member State to take charge of the applicant.’

15.

Section III of Chapter VI sets out the procedures for take back requests. Article 23 applies to cases where a Member State submits a take back request when a new application has been lodged in the requesting Member State. It provides:

‘(1)   Where a Member State with which a person as referred to in Article 18(1)(b), (c) or (d) has lodged a new application for international protection considers that another Member State is responsible in accordance with Article 20(5) and Article 18(1)(b), (c) or (d), it may request that other Member State to take back that person.

(2)   A take back request shall be made as quickly as possible and in any event within two months of receiving the Eurodac hit, pursuant to Article 9(5) of the Eurodac Regulation.

If the take back request is based on evidence other than data obtained from the Eurodac system, it shall be sent to the requested Member State within three months of the date on which the application for international protection was lodged within the meaning of Article 20(2).

(3)   Where the take back request is not made within the periods laid down in paragraph 2, responsibility for examining the application for international protection shall lie with the Member State in which the new application was lodged.

…’ ( 17 )

16.

Article 27(1) provides that applicants for international protection are to have the right 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.

17.

Article 27(1) states that in so far as Member States provide for the possibility for explicit withdrawal of requests for international protection, they are to ensure that the determining authority takes a decision to discontinue examination or reject the application. In accordance with Article 28, if there is reasonable cause to consider that an applicant has implicitly withdrawn or abandoned an application, Member States must likewise ensure that the determining authority takes a decision to discontinue examination or reject the application. A non-exhaustive list indicates the circumstances in which a Member State may assume that an application for international protection has been abandoned. ( 18 )

18.

Article 33 lays down the conditions in which Member States may consider applications for international protection to be inadmissible. These include where another Member State has granted international protection and, if the application is a subsequent application, where there are no new elements or findings relating to whether the applicant qualifies as a beneficiary of international protection under the Qualification Directive. ( 19 )

19.

The Vreemdelingenwet 2000 (Law on foreign nationals 2000) provides that a foreign national is lawfully resident in the Netherlands only if he holds a residence permit for a fixed period. An application for a residence permit for a fixed period is not to be examined if it has been determined, on the basis of the Dublin III Regulation, that another Member State is responsible for examining the application of the third-country national concerned.

20.

On 21 January 2016, Ms H. made an application for international protection in the Netherlands. Following a positive ‘hit’ in the Eurodac database the Netherlands authorities established that Ms H. had been registered in Greece on 27 December 2015 and that she had made a request for international protection in Germany on 5 January 2016. Ms H. contests that view. She claims that she was advised to provide her fingerprints to enable the German authorities to establish the background to her case and that the information in Eurodac should have no ramifications for her request for international protection in the Netherlands. On 21 March 2016, the Netherlands authorities sent a take back request to their German counterparts, pursuant to Article 18(1)(b) of the Dublin III Regulation. The German authorities failed to reply to that request within the two weeks’ deadline which according to the Netherlands meant that Germany was the Member State responsible for examining Ms H.’s application for international protection. ( 20 ) Ms H. then sought to argue that the Netherlands’ authorities had failed to apply properly the Chapter III criterion in Article 9 of the Dublin III Regulation and that she should be allowed to request international protection in the Netherlands because her husband had already been granted asylum there and she wished to join him. By a decision dated 6 May 2016, the national authorities considered that ground to be ineffective and confirmed that Ms H. should be transferred to Germany. That decision was annulled at first instance by the Rechtbank Den Haag Zittingsplaats Groningen (District Court, The Hague, sitting in Groningen) on other grounds, the court ruled that the competent authorities should adopt a new decision. ( 21 )

21.

Ms H. appealed to the referring court arguing that the first instance judgment was wrong in so far as it ruled that her appeal based upon the misapplication of Article 9 of the Chapter III criterion was ineffective.

22.

On 9 March 2016 Ms R., a Syrian national, lodged an application for international protection in the Netherlands.

23.

Ms R. had lodged an earlier application for international protection in Germany. The Netherlands authorities considered that Germany was the Member State responsible for examining her application and accordingly made a ‘take back request’ pursuant to Article 18(1)(b) of the Dublin III Regulation. The German authorities initially rejected that request on the grounds that Ms R. was married to a person who was a beneficiary of international protection in the Netherlands.

24.

The Netherlands authorities then asked their German counterparts to reconsider the ‘take back request’ on the grounds that Ms R.’s marriage certificate had been found to be false and that the marriage was thus to be regarded as not genuine. On 1 June 2016 Germany accepted the take back request. ( 22 )

25.

Accordingly, the Netherlands’ authorities refused to examine Ms R.’s application for international protection.

26.

Ms R. objected that under Article 9 of the Dublin III Regulation the Netherlands was the Member State responsible for examining her application for international protection, since that was where her husband (a beneficiary of international protection) lived.

27.

By a decision of 14 July 2016, the Netherlands authorities stated that as Ms R.’s marriage was to be regarded as not genuine, it followed that her alleged husband was not a family member within the meaning of Article 2(g) of the Dublin III Regulation. Accordingly Ms R. could not rely on Article 9 of that regulation in support of her claim. Furthermore, since Ms R.’s case involved a take back request rather than a take charge request, there was no need to apply the Article 9 Chapter III criterion.

28.

By judgment dated 11 August 2016, the Rechtbank Den Haag (District Court, The Hague), annulled that decision on two grounds. First, it held, that the Netherlands authorities had failed to examine whether Ms R. had a stable relationship with her partner within the meaning of Article 2(g) of the Dublin III Regulation; and that a third-country national was entitled to rely on Article 9 of that regulation whether the competent authorities made a take back request or a take charge request.

29.

The Netherlands authorities appealed to the referring court.

30.

The order for reference in Case C‑582/17 states that the facts and circumstances are in substance identical to those in Case C‑583/17. Thus, the reasoning underpinning the request for a preliminary ruling in that case reflects the order for reference in Case C‑583/17. The same chamber of the Raad van State (Council of State) dealt with both cases and made the respective orders requesting preliminary rulings on the same day.

31.

The referring court considers that under the Dublin III Regulation an applicant for international protection may challenge a transfer decision on the grounds that the criteria for determining responsibility set out in Chapter III were misapplied solely in the Member State where the first application was lodged. Where such a decision results from a take back request, such a challenge may be made in the requesting Member State (here, the Netherlands) only in exceptional circumstances: that is, if the request (i) is incomplete or contains incorrect information; (ii) if the request was not sent in good time; (iii) if the rule laid down in the second subparagraph of Article 19(2) of the Dublin III Regulation was incorrectly applied; ( 23 ) (iv) if there are systemic shortcomings in the asylum procedure and the reception facilities for asylum seekers in the Member State responsible, which constitute serious, factual grounds for assuming that the applicant would run a real risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter, as referred to in Article 3(2) of the Dublin III Regulation; or (v) if the transfer is contrary to Article 4 of the Charter.

32.

However, the referring court seeks to ascertain whether its view of the interpretation of the Dublin III Regulation is consistent with this Court’s interpretation of Article 27 of that regulation. ( 24 ) It records that this Court has not yet ruled on the question of whether an applicant can challenge a transfer decision on the basis that the Chapter III criteria have been misapplied solely in the first Member State in which an application for international protection was lodged. Accordingly the referring courts seeks replies to the following questions:

33.

Written observations were submitted by Ms R., the Governments of Finland, Germany, the Netherlands, Switzerland and the United Kingdom and the European Commission. Ms H., Germany, Finland, the Netherlands, the United Kingdom and the Commission attended the hearing on 4 September 2018 and made oral submissions.

34.

The referring court states the competent authorities took the view that Ms H.’s and Ms R.’s respective marriages to third-country nationals who had been granted international protection in the Netherlands were not genuine. At least in Ms R.’s case, it was found at first instance that she had not provided evidence of her marriage to the satisfaction of the competent authorities.

35.

Pursuant to Article 2(g) of the Dublin III Regulation, ‘family members’ covers not only spouses, but also unmarried partners in a stable relationship. ( 26 ) Thus, it is necessary for the competent authorities to examine whether the alleged husband in each case is a family member within the meaning of that provision in order to determine whether Article 9 of that regulation might apply to Ms H. or Ms R.

36.

The basis of the take back procedure in both Ms H.’s and Ms R.’s case is unclear. The referring court states that the Netherlands authorities made take back requests for both Ms H. and Ms R. on the basis of Article 18(1)(b) of the Dublin III Regulation. However, at the hearing the Netherlands maintained that those requests should have been made on the basis of Article 20(5) of that regulation, as both Ms H. and Ms R. were present in the Netherlands without a residence document and the process for determining the Member State responsible was not yet complete.

37.

The provisions of Article 18(1)(b), (c) and (d) and Article 20(5) of the Dublin III Regulation cover the different circumstances in which an applicant for international protection makes a first application and then moves to another Member State and makes a second application there. ( 27 ) Those provisions refer expressly to the conditions for taking back applicants for international protection in, inter alia, Article 23 of that regulation.

38.

In accordance with the definition of the ‘examination of an application for international protection’ in Article 2(d), Article 18(1)(b) applies where such a move happens during the substantive assessment of the request for asylum (within the meaning of the Qualification Directive). It does not apply if the procedure for determining the Member State responsible has not been completed in the particular case. Article 18(1)(c) is the relevant provision where applicants for international protection withdraw the request for asylum within the meaning of Article 27 (explicit withdrawal) or Article 28 (implicit withdrawal or abandonment) of the Procedures Directive while the substantive application is under consideration. ( 28 ) Article 18(1)(d) applies if the substantive application for international protection has been rejected in the first Member State. ( 29 ) The take back procedure is launched under Article 20(5) where the substantive assessment of the application for international protection has not yet started and the process is still at the stage of determining the Member State responsible under the Dublin III Regulation.

39.

Which of those provisions is the correct basis of each of the two take back procedures here will turn on the facts. At the time that each applicant lodged a subsequent request in the Netherlands were the German authorities still in the process of determining the Member State responsible? Had they started the substantive assessment of each application? ( 30 ) Were the first applications in Germany withdrawn or rejected? Thus, whether the take back procedure is properly based on Article 18(1)(b), (c), (d) or Article 20(5) is a matter for the referring court to decide in the light of the necessary findings of fact.

40.

The specific questions posed by the referring court concern the interpretation of the Dublin III Regulation with regard to the general issue of how the Chapter III criteria are to be applied in the context of a take back procedure. Notwithstanding that the legal basis of these individual take back procedures is still unclear, I consider that this Court has sufficient information before it to examine those questions. ( 31 )

41.

By Question 1 the referring court seeks to ascertain whether the Dublin III Regulation should be interpreted as meaning that only the Member State in which an application for international protection was first lodged can determine the Member State responsible. If so, it would follow that a third-country national has a legal remedy solely in that Member State, under Article 27 of the Dublin III Regulation, against the incorrect application of the Chapter III criteria.

42.

The general scheme of the Dublin III Regulation covers the process for determining the Member State responsible for examining requests for international protection as designated by the criteria listed in Chapter III. ( 32 ) Substantive applications are (in principle) examined by a single Member State which those criteria designate as being responsible. ( 33 ) The essential aim of the Dublin system is to determine that Member State rapidly. ( 34 ) Where an applicant for international protection lodges requests in different Member States, the Eurodac Regulation assists the Member States concerned in determining which Member State is responsible under the Dublin III Regulation. ( 35 )

43.

The changes to the previous system wrought by the Dublin III Regulation indicate that the EU legislature decided to involve applicants for international protection in that process. ( 36 ) Thus, applicants must be informed of the criteria for determining responsibility and given the opportunity to submit information relevant to the correct interpretation of those criteria. ( 37 ) Those rights are underpinned by the right to an effective remedy against a transfer decision taken at the conclusion of that process. ( 38 )

44.

Whilst the process of designating the Member State responsible is based essentially on the Chapter III criteria, Chapter VI (concerning take charge and take back requests) and observance of the strict time limits laid down in relation to those provisions are also relevant to the outcome of that process. A Member State that fails to respond to a request within the relevant time limit is deemed to have accepted that request and therefore becomes responsible for examining the substantive application for international protection. ( 39 )

45.

The Dublin III Regulation also includes certain express exceptions to the general principle that the Member State responsible is determined solely by reference to the Chapter III criteria. Thus, the second subparagraph of Article 3(2) overrides those criteria where there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State concerned, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. ( 40 ) The objective of Article 16(2) is attained both where the applicant who is dependent on a member of his family is present in a Member State other than the one responsible pursuant to the criteria set out in Chapter III and, conversely, where it is that family member who is dependent on the assistance of the applicant. ( 41 ) Article 17(1) similarly provides, by way of derogation from Article 3(1), that each Member State may decide to examine an application for international protection lodged with it even if it is not the Member State responsible pursuant to the Chapter III criteria.

46.

To summarise: the Dublin system is thus based primarily on the application of the Chapter III criteria; but a different Member State may become the Member State responsible either through its failure to comply with the time limits for responding to a take charge or take back request or where the Dublin III Regulation makes provision for an express exception to the ‘normal’ system. ( 42 )

47.

Finland, the Netherlands, Switzerland and the United Kingdom argue in essence that where the same individual makes consecutive requests for international protection in Member State A and Member State B and the latter submits a take back request to Member State A, Member State B is not obliged to apply the Chapter III criteria within the framework of the take back request.

48.

Finland and Switzerland consider that Member State A is obliged to take back the individual concerned in accordance with Chapter VI of the Dublin III Regulation and then apply the Chapter III criteria.

49.

The Netherlands submits that it follows from the wording of Article 7(2) that the Member State responsible is determined by reference to the situation obtaining when the first request for international protection is made. That suggests that it is only Member State A that applies the Chapter III criteria. There are however certain exceptional cases laid down in Article 7(3) where another Member State may apply the Chapter III criteria, namely where Articles 8, 10 or 16 apply.

50.

The United Kingdom maintains that the Dublin III Regulation makes a clear distinction between take charge and take back requests. In relation to take charge cases, Member State A determines the Member State responsible in accordance with the Chapter III criteria (Article 18(1)(a)). Take back cases are based on the principle that there was a previous application in Member State A (Article 18(1)(b), (c), (d) and Article 20(5)). That Member State is then obliged to take back the applicant. In such cases responsibility under the Dublin system has already been determined when the subsequent application is made.

51.

Ms H. and Ms R., Germany and the Commission take a different view. Ms H. and Ms R. argue that the wording of the Dublin III Regulation does not support a restrictive interpretation that only Member State A can apply the Chapter III criteria. The Commission supports that view. Pointing to Article 7(3), it argues that Member States are to take account of all evidence regarding the presence on their territory of family members concerned by a request for international protection when examining the application of the Chapter III criteria. The fact that Article 7(3) does not cross-refer expressly to Article 9 is a legislative oversight. Germany submits that the take charge and take back provisions in Chapter VI make it very clear that both Member State A and Member State B are obliged to verify whether the Chapter III criteria have been properly applied in any particular case.

52.

It seems to me that the text of the Dublin III Regulation is not definitive one way or the other. The regulation does not stipulate that only Member State A is able to apply the Chapter III criteria. Nor does it state expressly that both States must carry out that analysis.

53.

It is settled case-law that in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by rules of which it is part. ( 43 ) The rules of secondary EU law, including the provisions of the Dublin III Regulation, must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter. ( 44 ) Moreover, where provisions of EU law are open to several interpretations, preference is to be given to the interpretation which ensures that the legislation at issue retains its effectiveness. ( 45 )

54.

The Dublin III Regulation does use express wording where a single Member State or the first Member State in which an application for international protection is lodged is assigned an obligation. ( 46 ) Thus, Article 3(1) provides that the substantive application for international protection is to be examined by a single Member State. Likewise, the first subparagraph of Article 3(2) provides that if no Member State can be designated as responsible on the basis of the Chapter III criteria, it is the first Member State where an application is lodged that is responsible for examining it. Article 7(2) expressly provides that the Member State responsible is to be determined on the basis of the situation obtaining when an applicant first lodged an application for international protection. In accordance with Article 20(1), the process of determining the Member State responsible starts as soon as such an application is first lodged with a Member State. ( 47 )

55.

It is unsurprising that express wording is used to impose obligations on a single Member State or the first Member State in those instances. Regulations are directly applicable. It is therefore particularly important that those obligations are expressed clearly and unequivocally. Here, the legislative history — which shows that the legislature rejected the option of establishing a system in which responsibility would fall solely on the Member State where an application for asylum was first lodged — is also relevant. ( 48 )

56.

The Dublin system has since its inception been based upon two distinct components, each of which has a particular purpose in achieving the general objective of determining the Member State responsible, and the essential characteristics of that system are retained in the Dublin III Regulation. ( 49 ) The first component is the Chapter III criteria; the second, the take back rules which apply when an applicant who has lodged an application for international protection in one Member State is subsequently present in a second Member State. ( 50 ) It is only if none of the Chapter III criteria apply that the first Member State in which an application for asylum is lodged is responsible for examining it substantively. The purpose of the take back rules is to ensure that an applicant for international protection does not pursue a claim in a Member State other than the one designated under the regulation as responsible for considering it.

57.

The novel question which arises in the present case is whether Member State B should consider the Chapter III criteria when making a take back request to Member State A or whether there is a degree of automaticity (as Finland and Switzerland submit) and Member State B is entitled never to pay any regard to those criteria simply because the applicant has moved from Member State A to Member State B.

58.

It seems to me too simplistic to approach this issue in terms of a binary choice.

59.

It may often be the case that Member State B obtains a Eurodac hit, has no other information about the applicant’s circumstances and therefore (legitimately) makes a take back request to Member State A based on that Eurodac hit. However, where Member State B has information indicating that it is indeed the Member State responsible in accordance with the Chapter III criteria, it seems to me to be contrary to the purpose of the Dublin III Regulation for that State automatically to refuse to apply the Chapter III criteria because it intends to make a take back request. In particular, nothing in the wording supports the view that Member State B can ignore the family unity criteria, when prima facie their application would render it responsible for examining the substantive application, in favour of making a take back request that if successful will transfer the applicant away from family members.

60.

Such a reading would be at odds with the commitment expressed in recital 32 of that regulation to treat persons falling within the scope of the regulation in accordance with instruments of international law and the case-law of the European Court of Human Rights. ( 51 ) It is also at variance with the fundamental rights mentioned in recital 39, including the right to family life which is enshrined in Article 7 of the Charter. I therefore consider that the Dublin III Regulation cannot be interpreted as meaning that in each and every case where an applicant for international protection lodges consecutive applications for asylum in Member State A and Member State B, the latter is entitled to send a take back request to Member State A without paying any regard to the application of the Chapter III criteria.

61.

Does that view encourage abuse of the Dublin system?

62.

All Member States making submissions to the Court emphasised that the Dublin III Regulation should not be interpreted in a manner that encourages abuse. They placed weight on the importance of discouraging applicants for international protection from moving from one Member State to another and making consecutive requests for international protection in each Member State. It is therefore necessary to examine those arguments with care.

63.

The overarching aim of the Dublin III Regulation is the rapid determination of the Member State responsible. It is not (per se) a law enforcement measure in the sense that its stated primary purpose is not to introduce restrictions to be imposed on asylum seekers moving between Member States. ( 52 ) The take back provisions, which aim to ensure that applicants do not pursue requests for asylum in a Member State other than the Member State responsible, constitute the chosen method to counter misuse of the asylum procedures. ( 53 )

64.

As I have already indicated, ( 54 ) in the absence of information indicating the presence of another competing Chapter III criterion, a Member State will be entitled to make a take back request on the basis of a Eurodac hit. The interpretation that I have advanced merely requires a Member State, when it has additional information relevant to the application of the Chapter III criteria, not wilfully to shut its eyes to that information.

65.

A further concern raised was how to deal with an asylum applicant who travels across several Member States making requests for international protection in each. That is not the situation in the present cases and it seems to me that the take back rules in conjunction with the Eurodac Regulation ensure that an applicant for international protection is not able to pursue multiple claims at the same time.

66.

The Netherlands submits that there are exceptional situations identified in Article 7(3) of the Dublin III Regulation, where the Member State making the take back request may indeed apply the Chapter III criteria. It argues, however, that Article 9 is not among the provisions listed in Article 7(3) setting out those exceptional situations and that Ms H. and Ms R. are therefore not entitled to rely on it.

67.

It seems to me that Articles 8, 10 and 16 are mentioned in Article 7(3) of the Dublin III Regulation in order to reflect the aim (expressed in recital 14) that respect for family life should be a primary consideration of Member States when applying the regulation. ( 55 )

68.

The legislative history shows that, in the Commission’s proposal, what is now Article 9 was originally included in the provisions listed in what became Article 7(3) of the Dublin III Regulation. ( 56 ) The inclusion of Article 9 in that list proved to be very controversial. During the negotiations in the Council certain Member States expressed concerns that the Dublin procedures would be exploited: ‘There is however a risk of potential abuse when it comes to Article 9 of the proposal [Article 7 of the Dublin III Regulation], concerning the reunification with a family member who is a refugee, regardless of whether the family was formed in the country of origin or not. In this case, it can be argued that an asylum seeker could get married with a refugee in another Member State just in order to avoid the application of the Dublin rules and to choose the Member State of residence.’ ( 57 ) Thus, Article 9 was excluded from the list.

69.

I consider that, a contrario, where there is no evidence of abuse, the applicant for international protection and the family member remain within the material scope of the Dublin III Regulation’s provisions on family unity as regards the application of the Chapter III criteria. That view corresponds to the aims of the Dublin III Regulation and ensures its effectiveness. ( 58 ) To construe that regulation otherwise would be contrary to the Charter and to the aims and assurances expressed in recitals 14, 32 and 39 of the Dublin III Regulation.

70.

It will be for the competent authorities to verify, subject to supervision by the national courts, whether in a particular case there are factors indicating that a marriage was contrived in order to choose the Member State of residence, thus circumventing the application of the Chapter III criteria of the Dublin III Regulation which do not concern family unity. ( 59 ) The same holds true for applications based on a long-term relationship.

71.

The Netherlands argues that in adopting the Dublin III Regulation the legislature had in mind that provision is made for family unity by Council Directive 2003/86/EC on the right to family reunification. ( 60 ) It submits that there is no need for a Member State which makes a take back request to have regard to Article 9 in Chapter III, as the rules in that directive provide adequate safeguards for family unity in cases such as those of Ms H. and Ms R.

72.

Whilst it is true that Directive 2003/86 lays down provisions on family unity, that directive is aimed principally at ensuring fair treatment of third-country nationals (already) residing lawfully on the territory of the Member States and at promoting sociocultural stability. ( 61 ) The rules on designating the Member State responsible for examining an application for international protection serve a very different purpose. Those rules were introduced to aid the efficiency of the Dublin system in general. ( 62 ) Determination of the Member State responsible is the initial step in the process, before the substantive examination of the application itself. Although the family unity criteria in the Dublin III Regulation unquestionably aim to take account of family relationships, those provisions do not serve the same purpose as Directive 2003/86 and they focus on the applicant for international protection, not the family member who is already lawfully resident.

73.

Contrary to the view expressed by the Netherlands, I therefore consider that that directive should not be taken into account in determining the Member State responsible for the purposes of the Dublin III Regulation.

74.

I also reject as flawed the argument that it is incumbent on the first Member State to make a take charge request to the second Member State where appropriate in order to ensure that the latter becomes the Member State responsible for examining the asylum applications. That argument simply fails to address the issue of principle, namely whether the second Member State is able to apply the Chapter III criteria under the Dublin III Regulation.

75.

In many cases the need to comply with the strict time limits for making a take charge request laid down in Article 21 of the Dublin III Regulation will mean that in practice it is not possible for the first Member State (here, Germany) to make such a request. ( 63 ) The facts of Ms H.’s case illustrate the point. The request for international protection in Germany was made on 5 January 2016. ( 64 ) In accordance with the first subparagraph of Article 21(1), any take charge request had to be made by 5 April 2016. Ms H.’s fingerprints and details were recorded in Eurodac and in cases of a Eurodac hit that period is reduced to two months (5 March 2016). The German authorities received a take back request from their Netherlands counterparts on 21 March 2016. The period for making a take charge request had thus already expired before the German authorities received the take back request. In such circumstances the take charge mechanism could not be used to resolve the situation of the asylum applicant or the Member States concerned by designating the Member State responsible in accordance with the family unity criteria set out in Chapter III of the Dublin III Regulation.

76.

In the light of the wording and the purpose of the Dublin III Regulation, the better reading of the take back provisions is to interpret the text in a manner that conforms with the guarantees in the Charter protecting the right to family life. Thus, where an applicant for international protection is able to demonstrate a relationship with a family member within the meaning of Article 2(g) of the Dublin III Regulation and invokes Article 9 thereof, the Member State intending to make a take back request should take account of the family unity criteria in order to determine the Member State responsible, in accordance with Article 3(1), unless the competent authorities are able to show that the person concerned has entered a family relationship in order to avoid the application of the Dublin III Regulation.

77.

Article 27 of the Dublin III Regulation makes no distinction between the appeal or review of transfer decisions on the basis of whether they concern take charge or take back requests. It follows that in both instances an applicant for international protection should be able to exercise the right to an effective remedy in the Member State where it is alleged that the Chapter III criteria have been misapplied. ( 65 ) That interpretation ensures that the right of appeal or review in Article 27 is not deprived of its practical effect. ( 66 )

78.

In Ghezelbash the Court held that it is apparent from the wording of Article 27(1) of the Dublin III Regulation that the legal remedy provided for in that article must be effective and cover questions of both fact and law. Moreover, the drafting of that provision makes no reference to any limitation of the arguments that may be raised by the applicant for international protection when availing himself of that remedy. ( 67 ) The Court also pointed out that recital 19 of the regulation states that, in order to ensure compliance with international law, the effective remedy introduced by the Dublin III Regulation in respect of transfer decisions should cover both the examination of the application of that regulation and the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred. ( 68 ) It is the first limb of that test that is relevant here; and it seems to me that the Court’s earlier ruling can and should be applied to the present circumstances. That seems to be fully in conformity with the express purpose of the Dublin III Regulation which is to allow judicial scrutiny of the implementation of the regulation. ( 69 )

79.

I add that the point at issue here is not whether applicants for international protection should have a right to appeal all transfer decisions following a Member State’s agreement to a take back request. The need for such a right arises only in those cases where an applicant is able to rely on a competing criterion listed in Chapter III, in particular the family unity criteria, and where accordingly a misapplication of those criteria may be relevant.

80.

I therefore conclude that the Dublin III Regulation should be interpreted as meaning that, where a person lodges an application for international protection in one Member State and subsequently travels to another Member State where he lodges a further application and seeks to challenge a transfer decision arising from a take back request, on the grounds that the second Member State misapplied the Chapter III criteria, in particular the provisions on family unity including Article 9 of that regulation, the competent authorities are required to apply the relevant Chapter III criteria. Pursuant to Article 27(1) of that regulation, such decisions are subject to the scrutiny of national courts to ensure the correct application of those criteria.

81.

By its second question the referring court asks in essence whether, in the circumstances covered by Question 1, it is significant that the first Member State had already made a decision on that first application for international protection or that the applicant had withdrawn that application.

82.

First, it is unclear from the order for reference how Question 2 relates to the facts and circumstances of the cases at issue. The referring court does not specify whether the decision of the first Member State to which it alludes refers to a decision designating the Member State responsible or to the substantive decision on the application for international protection in question.

83.

Second, in Ms H.’s case there is no finding that a decision of either sort was made by the German authorities. So far as Ms R. is concerned, the German Government confirmed at the hearing that at the time the Netherlands authorities made the take back request (23 April 2016) their German counterparts had made no substantive decision regarding her case. She was granted subsidiary protection only on 6 October 2016. There are no findings of fact to the effect that either applicant withdrew the request for international protection within the meaning of Article 27 or Article 28 of the Procedures Directive.

84.

Although the factual basis for Question 2 is thus unclear I shall nevertheless examine it briefly for the sake of good order.

85.

The rules in Article 7(2) of the Dublin III Regulation provide that the Member State responsible is to be determined on the basis of the situation obtaining when an applicant first lodges the application for international protection. That provides the point of reference. The Member State responsible is to be designated by reference to the factual circumstances at that time by applying the Chapter III criteria, including the family unity criteria (the first stage). The substantive assessment of the application for the purposes of the Qualification Directive (the second stage) will follow. ( 70 )

86.

Where the facts disclose that the application in the first Member State was under examination or was withdrawn or rejected in that Member State and if the second Member State concludes that it is not the Member State responsible, the status of the application for international protection in the first Member State is relevant to that first stage examination in so far as the factual circumstances provide the basis for any take back request that the second Member State may make, pursuant to Article 18(1)(b), (c) or (d). ( 71 ) However, in the event that that Member State considers itself to be the Member State responsible and proceeds to the second stage (substantive assessment), a decision on the application for international protection or its withdrawal in the first Member State will be relevant to assessing the admissibility of the application in accordance with the national rules implementing Article 33 of the Procedures Directive. ( 72 ) I add for completeness that if the applicant had already been granted international protection by the first Member State at the time of lodging a consecutive application in a second Member State, such a person would not fall within the scope of the Dublin III Regulation, since he would not be an ‘applicant’ for the purposes of Article 2(c).

87.

Thus, whether a decision has been made on the application in the first Member State or whether the applicant withdraws such a request is not necessarily determinative of the competent authorities’ assessment of the correct application of the Chapter III criteria in the second Member State in order to establish whether that Member State it is the Member State responsible for the purposes of the Dublin III Regulation.

88.

In the light of all the above considerations I am of the opinion that the Court should answer the questions raised by the Raad van State (Council of State, Netherlands) as follows: