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19th April 2021
Employment & Immigration

Op-Ed: “H.A. v Belgium: migration law is not a ‘law of exception’” by Carlos Oviedo Moreno

On 15 April, the Court of Justice published its judgment H.A. v Belgium (C-194/19). This case revolves around the scope of the legal remedy against a transfer decision taken under Regulation 604/2013 (Dublin III Regulation). A transfer decision entails that an applicant for international protection is expelled from the Member State in which he or she  lodged its request for protection to the Member State considered responsible to decide on that particular international protection procedure. The Dublin III Regulation contains the rules governing this attribution of responsibility.

At first glance, the judgment may seem like a routine application of the procedural right to an effective remedy. On closer look, it becomes clear that it entails deeper and (even) more significant repercussions for the interpretation of the Dublin system; and indeed, the whole of the Common European Asylum System (CEAS). These repercussions will be explained in this Op-Ed.

The Facts 

H.A. applied for international protection in Belgium. When the Belgian authorities learnt that he had previously been awarded a visa in Spain, they requested Spain ‘take charge’ of his application, in accordance with Dublin III Regulation rules. Spain accepted the request and Belgium dismissed the applicant’s protection request and ordered his expulsion from Belgium (his transfer decision).

The applicant challenged this decision, notably arguing that in the meantime his brother had arrived in Belgium and had also applied for international protection in that country. Nevertheless, a Belgian court determined that the facts and circumstances arising after the transfer decision had been taken could not be assessed in the appeal against such transfer, as per Belgian law.

The case was brought before the Belgian Council of State, which raised a preliminary question before the Court of Justice. The preliminary question enquired as to the legality of the prohibition to assess later circumstances in relation to the scope of the legal remedy against a transfer decision envisaged in Article 27 Dublin III Regulation in the light of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights.

The Decision

Following AG Rantos’s Opinion, the Court of Justice answered the question raised by stating that a national law which precludes the assessment of events that have occurred after the transfer decision when pursuing an action in law against such decision is not consistent with Article 27 Dublin III Regulation together with Article 47 of the Charter of Fundamental Rights.

This decision builds on previous case law on the scope of the remedy foreseen in Article 27 Dublin III Regulation. The Court reiterates that this remedy must be ‘an effective remedy, in the form of an appeal or a review, in fact and in law’ (paragraph 32), as per Article 27, which ‘should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred’ (paragraph 33), according to Recital 19.

In any case, the Court of Justice leaves it to the Member States’ discretion either to allow this examination of ‘post-transfer decision’ circumstances during the appeal against or review of the transfer decision, or to set up a specific legal remedy (complying with certain requirements) where these circumstances could be brought by the applicant. This is because the Court acknowledges that this legal remedy is not harmonised by Dublin III Regulation and the Court of Justice applies the principle of procedural autonomy. In any case, Member States need to comply with the principles of equivalence (similar conditions must apply to actions dealing with substantive national and EU law) and effectiveness (the exercise of EU law rights must not be rendered excessively difficult), as per the usual doctrine of the Court of Justice (paragraph 42).

Consequently, if the appeal against or review of the transfer decision does not entail itself an ex-nunc assessment under national law, Member States must set up an alternative remedy where circumstances arising after the transfer decision can be argued and considered. This ex-nunc alternative remedy must also be effective, quick and not limited to situations where the applicant is detained or their transfer is imminent (paragraphs 47 and 48). Anything to the contrary would not satisfy Article 47 of the Charter of Fundamental Rights.

Procedural Rights as the Rule

In light of both previous case law on the scope of Article 27 Dublin III Regulation and an analysis of the interests at stake, this decision should not seem surprising.

The Court of Justice had already clarified that Dublin III awards rights to the applicants of international protection and that it does not merely contain administrative organisational rules among States (see Ghezelbash, C-63/15; and Karim, C-155/15 in contrast to the argumentation in Abdullahi, C-394/12– regarding the previous Dublin II Regulation). Consequently, the Court had already affirmed several times that a transfer decision can be challenged due to the conditions and deficiencies present at the Member State where the applicant will be sent, and due to an incorrect application of the rules of the Dublin system (see, for instance, Karim).

Moreover, the Court of Justice had explained that procedural guarantees (such as the maximum time limit to carry out the transfer once decided) must be considered within the assessment of the correct application of the Dublin system (see Shiri, C-201/16). On top of that, the Court had considered the temporal scope of the circumstances assessed, stating that even events arising after the execution of the transfer itself can be relevant as the transfer per se does not determine the responsibility of a particular Member State but it must be seen, rather, as the mere consequence of the correct application of Dublin rules (see Hasan, C-360/16). H.A v Belgium, therefore, follows previous case law by reinforcing the idea that the legal remedy under Article 27 cannot be interpreted restrictively.

Notably, the circumstance arising in this case (the request for international protection made by the applicant’s brother) is not analysed on its merits. In fact, ‘siblings’ are not included in the definition of ‘family members’ in the Dublin III Regulation, as per Article 2(g). This is an exclusion that should, at the very least, give some food for thought about the general approach of the Dublin system.

The merits are not deemed relevant because what was at stake was the right of the applicant to raise this argument and have it considered in his appeal, regardless of the outcome of the procedure. In this line, as former AG Sharpston interestingly highlights in her ‘shadow opinion’, the review of the correct interpretation of the Dublin system must not be restricted to the application of the wording of the Regulation. The respect for fundamental rights, such as the right to private and family life as protected in the Charter of Fundamental Rights and other international treaties such as the European Convention on Human Rights, is broader and must take part in the assessment of the situation. Preventing H.A. from arguing about the presence of his brother in Belgium would have meant a blunt disregard for the entire fundamental rights system.

The Right ‘Lenses’: A ‘Person-Centred Approach’

Paramount to the Court of Justice’s approach are the objectives of the Dublin III Regulation. It contains a set of criteria to decide which Member State is responsible for processing a particular request for international protection in a fair and objective manner both for States, but also for applicants (Recital 5).

Given the way in which the Court balances procedural autonomy and the enforcement of the right to an effective remedy, it is difficult to envisage a remedy other than the simple appeal or review of the transfer decision that could satisfy the requirements in practice. Any alternative remedy may result in an excessive delay to the detriment of the applicant.

It is from this reasoning that we can draw the essence of this judgment and its related case law. The efficiency of the Dublin system should not be achieved for the convenience of Member States and it most definitely should not come at the cost of the applicant’s procedural guarantees. The rule of law and the values enshrined in the EU acquis (beginning with human dignity) require that the most rigorous procedural and substantive guarantees are observed.

It is for the sake of the persons concerned and their rights that the system must be efficiently implemented by Member States. Any other approach disregards the fact that it is lives, plans, family, careers, prospects, health, safety and much more that is at stake when a transfer decision under Dublin is taken. The Dublin system – and ultimately the CEAS in its entirety – must be ‘person-centred’ and not ‘border-centred’. The idea that it primarily deals with ‘flows’ and ‘protects borders’ while distributing some kind of movable good between Member States is a given narrative – not an approach necessarily compliant with EU law.

This standpoint is relevant when discussing the (not so) New Pact on Migration and Asylum proposed by the European Commission (including a reform of the Dublin system) and the different positions about it. We should ensure that much needed legislative proposals and changes do not come at the price of watering down guarantees or creating vacuums of ‘no-rights’ which would never even be considered in other areas of law.

Decisions like H.A v Belgium should instead put the spotlight on the ugly reality concerning the enforcement of migration policies across the EU. The Court of Justice’s reasoning reminds us of the simple and correct optics that must be applied to Dublin cases, an approach which should not be an exception in migration law but the rule: the protection of basic and fundamental rights in every procedure.

 

Carlos Oviedo Moreno is a qualified lawyer. He holds a Master’s Degree in Legal Practice from Universidad Carlos III de Madrid (Spain) and an LL.M. in International Migration and Refugee Law from Vrije Universiteit Amsterdam (Netherlands).

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