Federal Republic of Germany (Bundesrepublik Deutschland) vs Aziz Hasan (Syria)
Mr Hasan applied for asylum in Germany in October 2014. A Eurodac search showed he had applied for asylum in Italy in September 2014. In November 2014 the German authorities asked the Italian authorities to take him back. The Italian authorities did not reply. The German authorities then rejected his claim as inadmissible on the basis that Italy was responsible for his claim, and ordered that he be transferred to Italy. Mr Hasan unsuccessfully challenged that decision to the Administrative Court, Trier, and was transferred to Italy in August 2015. He returned to Germany the same month. Mr Hasan then appealed the decision of the Administrative Court on the basis that his transfer had taken place after the six-month time limit in Article 29(1) of Dublin III. Germany appealed that decision on a point of law to the Federal Administrative Court, which Court considered that a correct calculation of the time in question showed that the transfer to Italy took place within the time allowed by Article 29(1), but was also of the view that it could not be definitively determined that Italy had decided it was responsible, inasmuch as Italy might have to be ruled out as being responsible due to systemic flaws. The Federal Administrative Court referred the matter to the Court of Justice. The Court of Justice ruled as follows: 1. Article 27(1) 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, read in the light of recital 19 of the 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 in the main proceedings, 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. 2. Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third-country national and it is not possible to transfer that person anew to Member State ‘A’ without such a procedure being followed. 3. Article 24(2) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and those periods may not begin to run until the requesting Member State has become aware that the person concerned has returned to its territory. 4. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge. 5. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is not to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision. 6. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection: – the Member State on whose territory that person is staying without a residence document can still make a take back request, and – that provision does not allow the person to be transferred to another Member State without such a request being made.
Access to procedures; Dublin procedures;
European Union,EU: Court of Justice of the European Union [CJEU], Federal Republic of Germany (Bundesrepublik Deutschland) vs Aziz Hasan (Syria), 25/01/2018, ECLI:EU:C:2018:35CJEU rules on procedures and periods for making a take back request