Τhe appeal against a decision rejecting asylum and the principle of effectiveness

By Giorgos Kazoleas, Lawyer

The positive impact of the application of the principle of effectiveness reflects a significant recent ruling by the European Court of Justice. The decision concerns immigration law and in particular the right of the asylum seeker to appeal against the decision rejecting his application. The ECJ considers that the applicant may rely on circumstances subsequent to the rejection in his appeal and that the national court should take them into account.

According to the Judgment[1] , it is for each Member State to lay down procedural rules for legal actions that would safeguard that effective judicial protection.

The Court recalls that the Dublin III Regulation 4 provides that a person who is the subject of a transfer decision is to have the right to an effective remedy against that decision and that that remedy must cover, inter alia, the examination of the application of that regulation.

According to article 27 of the Regulation  (EU) No 604/2013[2] , the applicant shall 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.

Ιn another ECJ’s ruling, the Court ruled that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that an applicant for international protection must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period as defined in Article 29(1) and (2) of that regulation that occurred after the transfer decision was adopted. The right which national legislation such as that at issue in the main proceedings accords to such an applicant to plead circumstances subsequent to the adoption of that decision, in an action brought against it, meets that obligation to provide for an effective and rapid remedy[3].

The Court, in the context of another case, specifies even more the time point of examination of circumstances after the issuance of a transfer decision, ruling that Article 27 (1) of the above Regulation, read in the light of recital 19 of that regulation and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a provision of national law, such as that at issue, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is that obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter.[4]

Αccording to the principle of effectiveness in the EU law, everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in the relevant provision.

In the present case, in view of the principle of effectiveness, the Court stated that an action for annulment brought against a transfer decision, in the context of which the court or tribunal seised cannot take account of circumstances subsequent to the adoption of that decision which are decisive for the correct application of the Dublin III Regulation, does not ensure sufficient judicial protection in that it does not enable the applicant to exercise his / her rights under that regulation and Article 47 of the Charter of Fundamental Rights.

However, the Court added that such protection may be afforded, in the context of the national judicial system viewed as a whole, by a specific remedy, distinct from an action seeking to have the lawfulness of a transfer decision reviewed, that enables such circumstances to be taken into account. That specific remedy must, however, ensure that the person concerned has the opportunity to prevent the competent authorities of the requesting Member State from being able to carry out the transfer of that person, where a circumstance arising after the transfer decision precludes its implementation.

Furthermore, the exercise of that specific remedy must not be made conditional on the applicant having been deprived of his or her liberty or on the fact that implementation of the transfer decision is imminent[5].

Αs the decision to transfer the asylum seeker has a decisive influence on his / her real situation, it should be taken with full guarantee of his / her rights. The invocation of subsequent circumstances and / or allegations in the appeal/remedy against the rejection decision may prove to be decisive for the fate of the appeal and lead to the reversal of the rejection decision. The principle of effectiveness applied by the Court in examining such cases acts as a catalyst for ensuring the correct judicial diagnosis of appeals against rejection decisions for asylum.

*Giorgos Kazoleas is Lawyer in Greece and Cyprus 

Read more articles by Giorgos Kazoleas here


[1] Case C-194/19, H. A. vs État belge dated 15.4.2021

[2] 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

[3] Judgment of the Court (Grand Chamber) of 25 October 2017, Majid Shiri, Case C-201/16

[4] Judgment of the Court (Third Chamber) of 25 January 2018, Bundesrepublik Deutschland v Aziz Hasan, Case C-360/16

[5] Case C-194/19, H. A. vs État belge , Judgment dated 15.4.2021

*Photo by Roland Mey from Pixabay

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