The Court of Justice of the European Union as the guardian of EU Law ensures that, in the interpretation and application of the Treaties, the law is observed.28 As part of its mission, the Court of Justice of the European Union ensures the correct interpretation and application of primary and secondary Union law in the EU, reviews the legality of acts of the Union institutions and decides whether Member States have fulfilled their obligations under primary and secondary law. The Court of Justice also provides interpretations of Union law when so requested by national judges.
The Court thus constitutes the judicial authority of the European Union, which, in cooperation with the courts and tribunals of the Member States, ensures the uniform application, and interpretation of EU law.29
In 2018, CJEU remained active in the field of international protection issuing 16 judgments on references for preliminary rulings interpreting the Dublin Regulation, APD and QD. No decision on RD was issued, although two30 relevant cases are pending.
Jurisprudence on Dublin III Regulation
Technical aspects of the implementation of the Dublin III Regulation with regard to take charge and take back procedures were under review in various cases. In the Joined Cases C-47/17 and C-48/1731 , the Court concluded that the Member State, which receives a take charge or take back request, after making the necessary checks, has replied in the negative to that request within the time limits laid down in Articles 22 and 25 of Regulation No 604/2013 and which, thereafter, receives a re-examination request under Article 5(2) of Regulation (EC) No 1560/2003, must endeavour, in the spirit of sincere cooperation, to reply to the re-examination request within a period of two weeks. Further, where the requested Member State does not reply within that period of two weeks to the re-examination request, the additional re-examination procedure shall be definitively terminated, with the result that the requesting Member State must, as from the expiry of that period, be considered to be responsible for the examination of the application for international protection.
Further, in the case C 213/1732, the Court interpreted relevant provisions, concluding that the Member State in which a new application for international protection has been lodged is responsible for examining that application when no take-back request has been made by that Member State within the periods laid down in Article 23(2) of that regulation, even though another Member State was responsible for examining applications for international protection lodged previously and the appeal brought against the rejection of one of those applications was pending before a court of that other Member State when those periods expired. The Court also held that Article 18(2) must be interpreted as meaning that the making by a Member State of a take-back request in respect of a third-country national who is staying on its territory without a residence document does not require that Member State to suspend its examination of an appeal brought against the rejection of an application for international protection lodged previously, and subsequently to terminate that examination in the event that the requested Member State agrees to that request. Nor must Article 24(5) be interpreted as meaning that the Member State which makes the take-back request on the basis of Article 24, following the expiry, in the requested Member State, of the periods laid down in Article 23(2) thereof, is required to inform the authorities of that requested Member State that an appeal brought against the rejection of an application for international protection lodged previously is pending before its court. Finally, the Court held that Article 17(1) and Article 24 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, at the time the transfer decision was made, in which an applicant for international protection has been surrendered by one Member State to another Member State under a European arrest warrant and is staying on the territory of that second Member State without having lodged a new application for international protection there, that second Member State may request that first Member State to take back that applicant and is not required to decide to examine the application lodged by that applicant.
In the case, where a Member State that has submitted, to another Member State which it considers to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that regulation, a request to take charge of or take back a person referred to in Article 18(1) of that regulation, Article 26(1) precludes that Member State from adopting a transfer decision and notifying it to that person before the requested Member State has given its explicit or implicit agreement to that request (C 647/16).33
Article 24 of Dublin Regulation was interpreted extensively in the Case C-360/1634 clarifying whether it is possible to transfer anew a third-country national between two Member States, time limits in case of return, consequences of a take-back request beyond the indicated periods and in case of appeal, as well as the inability to transfer a person to another Member State without take-back reques.
The impact of the notification of a Member State’s intention to withdraw from the European Union for the application of the Dublin Regulation was assessed in Case C 661/1735, iin which the Court ruled that the fact that a Member State, designated as ‘responsible’ within the meaning of that regulation, has notified its intention to withdraw from the European Union in accordance with Article 50 TEU does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue. The Court also concluded that in the absence of evidence to the contrary, Article 20(3) establishes a presumption that it is in the best interests of the child to treat that child’s situation as indissociable from that of its parents.
The Fathi36 case raised a series of questions with regard to the Dublin III Regulation, the Qualification Directive and the Asylum Procedures Directive. As regards the Dublin III Regulation, the Court ruled that Article 3(1) of the Dublin Regulation must be interpreted as not precluding the authorities of a Member State from conducting an examination on the merits of an application for international protection, where there is no express decision by those authorities determining, on the basis of the criteria laid down by the regulation, that the responsibility for conducting such an examination lies with that Member State. As regards the Asylum Procedures Directive, the Court ruled that if the application is rejected as unfounded, the court or tribunal with jurisdiction of a Member State is not required under Article 46(3) to examine of its own motion whether the criteria and mechanisms for determining the Member State responsible for examining that application, as provided for by Regulation No 604/2013, were correctly applied. As regards the Qualification Directive, with regard to the claims of persecution for reasons based on religion, the Court concluded that an applicant for international protection who claims, in support of his application, that he is at risk of persecution for reasons based on religion does not, in order to substantiate his claims concerning his religious beliefs, have to submit statements or produce documents concerning all components of the concept of ‘religion’, referred to in Article 10(1)(b) of the Qualification Directive. The onus is, however, on the applicant to substantiate those claims in a credible manner by submitting evidence which permits the competent authority to satisfy itself that those claims are true. As regards what qualifies as ‘acts of persecution’ under Article 9(1) and (2) of the Directive, the Court ruled that the prohibition, on pain of execution or imprisonment, of conduct which is contrary to the State religion of the country of origin of the applicant for international protection may constitute an ‘act of persecution’, if that prohibition may, in practice, be enforced by such penalties by the authorities of that country, which it is for the referring court to ascertain.
Jurisprudence on Qualification Directive
Regarding the assessment of an application for international protection in the case C 652/1637, the Court reiterated its own case law (Alheto) on the importance of individual assessment of asylum claims, to be carried out in the context of the applicant’s personal circumstances. The Court ruled that account must be taken of the threat of persecution and of serious harm in respect of a family member of the applicant for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to such a threat. Applications of family members lodged separately cannot be subject to a single assessment, nor may the assessment of one of those applications be suspended until the conclusion of the examination procedure in respect of another of those applications. The Court ruled that Article 3 of Directive 2011/95 must be interpreted as permitting a Member State, when granting international protection to a family member pursuant to the system established by that directive, to provide for an extension of the scope of that protection to other family members, provided that they do not fall within the scope of a ground for exclusion laid down in Article 12 of that Directive and that their situation is, due to the need to maintain family unity, consistent with the rationale of international protection. Regarding the grounds of protection, the Court ruled that the involvement of an applicant for international protection in bringing a complaint against his country of origin before the European Court of Human Rights cannot, in principle, be regarded, for the purposes of assessing the reasons for persecution, as proof of that applicant’s membership of a ‘particular social group’. It must be regarded as a reason for persecution for ‘political opinion’, within the meaning of Article 10(1)(e) of the directive, if there are valid grounds for fearing that involvement in bringing that claim would be perceived by that country as an act of political dissent against which it might consider taking retaliatory action. As regards Article 46(3) read in conjunction with the reference to the appeal procedure contained in Article 40(1) of the Asylum Procedures Directive, the Court confirmed that a competent national court, on appeal is, in principle, required to examine, as ‘further representations’ and having asked the determining authority for an assessment of those representations, grounds for granting international protection or evidence which, whilst relating to events or threats which allegedly took place before the adoption of the decision of refusal, or even before the application for international protection was lodged, have been relied on for the first time during those proceedings. However, the competent national court is not required to do so if it finds that those grounds or evidence were relied on in a late stage of the appeal proceedings or are not presented in a sufficiently specific manner to be duly considered or, in respect of evidence, it finds that that evidence is not significant or insufficiently distinct from evidence which the determining authority was already able to take into account.
The assessment of the facts and circumstances relating to the declared sexual orientation of an applicant, may be based on an expert’s report, as concluded by the CJEU, provided that the procedures for such a report are consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, that that authority and courts or tribunals do not base their decision solely on the conclusions of the expert’s report and that they are not bound by those conclusions when assessing the applicant’s statements relating to his sexual orientation.38 In the specific case, the Court ruled that the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant is precluded.
The Court also examined the need for international protection of victims of torture. For the CJEU, substantial aggravation of a third-country national’s health cannot be regarded as inhuman or degrading treatment inflicted on him/her in the country of origin. This will only be the case where the third-country national would face a real risk of being intentionally deprived of health care. In this regard, the Grand Chamber ruled that a third-country national, who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine.39
The processing of an application for international protection lodged by a person registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) was analysed in Case C 585/16 40. The Court noted that an examination of the question whether that person receives effective protection or assistance from that agency (UNRWA) is required. Persons registered with UNRWA in a third country, who later apply for international protection, are in principle excluded from refugee status in the EU, unless it becomes evident, on the basis of an individualised assessment, that their personal safety is at serious risk and it is impossible for UNRWA to guarantee that the living conditions are compatible with its mission and that due to these circumstances the individual has been forced to leave the UNRWA area of operations. The individual is considered as enjoying sufficient protection in that third country, when that country: a) agrees to readmit the person concerned after he or she has left its territory in order to apply for international protection in the European Union; and b) recognises that protection or assistance from UNRWA and supports the principle of non-refoulement, thus enabling the person concerned to stay in its territory in safety under dignified living conditions for as long as necessary in view of the risks in the territory of habitual residence. The Court ruled that the requirement for a full and ex nunc examination of the facts and points of law on second instance may also concern the grounds of inadmissibility of the application for international protection where permitted under national law, and that, in the event that the court or tribunal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances.
The Court ruled further on exclusion grounds in the context of subsidiary protection. To this end, the penalty provided for a specific crime under the law of that Member State (for example, a possible custodial sentence of a set duration, in years) may not be the sole criterion when deciding.41 On the contrary, it is for the authority or competent national court ruling on the application for subsidiary protection to assess the seriousness of the crime at issue, by carrying out a full investigation into all the circumstances of the individual case concerned.
As regards content of protection, the CJEU found that the restriction of the rights of refugees with temporary residence permits to social security benefits is contrary to EU law. The Court underlined that the social security benefits of refugees with a temporary right of residence in a Member State should be equivalent to those received by nationals or refugees with a permanent right of residence.42
Jurisprudence on Asylum Procedures Directive
The Court interpreted provisions on manifestly unfounded applications in conjunction with the safe country concept, ruling that an application for international protection cannot be regarded as manifestly unfounded in a situation, in which, first, it is apparent from the information on the applicant’s country of origin that acceptable protection can be ensured for him in that country and, secondly, the applicant has provided insufficient information to justify the grant of international protection, where the Member State in which the application was lodged has not adopted rules implementing the concept of safe country of origin.43
In addition, a national court may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical. Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.
Procedures on second instance appeals were further defined by the Court. More concretely, the Court ruled that a third-country national whose application for international protection has been rejected as manifestly unfounded at first instance by the competent administrative authority, cannot be detained with a view to his removal, where he is lawfully authorised to remain on that territory until a decision has been made on his action relating to the right to remain on that territory pending the outcome of the appeal brought against the decision which rejected his application for international protection.44 However, national legislation may, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement. 45 46
Finally, on 12 April 2018, the Court ruled on the case C 550/16, regarding a request for a preliminary ruling from the Dutch Court of The Hague. The case concerned the right to family reunification of unaccompanied children that reach the age of majority after having lodged an application. The Court found that it is not for each Member State to determine which moment it wishes to choose to assess whether the condition in question is satisfied, given that the duration of an asylum procedure may be significant. A third-country national or stateless person, who is under 18 at the time of his/her entry and of the lodging of his/her asylum application in that Member State, but who, in the course of the asylum procedure, reaches the age of majority and is thereafter granted refugee status, must be regarded as a ‘minor’.47
28 Article 19 TEU, Articles 251 to 281 TFEU, Article 136 Euratom, and Protocol No 3 annexed to the Treaties on the Statute of the Court of Justice of the European Union.
29 CJEU, The Institution.
30 CJEU, C-726/18, Communicated Case; CJEU, C-233/18, Communicated Case.
31 CJEU, C-47/17 and C-48/17.
32 CJEU, C 213/17.
33 CJEU, C 647/16.
34 CJEU, C-360/16.
35 CJEU, C-661/17.
36 CJEU, C-56/17.
37 CJEU, C-652/16.
38 CJEU, C-473/16.
39 CJEU, C-353/16.
40 CJEU, C-585/16.
41 CJEU, C-369/17.
42 CJEU, C-713/17.
43 CJEU, C-404/17.
44 CJEU, C 269/18 PPU, C, J and S vs Secretary of State for Security and Justice (NL), ECLI:EU:C:2018:544
45 CJEU, C-175/17, X (Iraq) vs Belastingdienst/Toeslagen (NL), ECLI:EU:C:2018:776
46 CJEU, C-180/17, X and Y (Russia) vs Secretary of State for Security and Justice (NL), ECLI:EU:C:2018:775
47 CJEU, C 550/16, A. and S. (Eritrea) vs Staatssecretaris van Veiligheid en Justitie (NL), ECLI:EU:C:2018:248