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No extension of the transfer period in the Dublin procedure due to the Covid 19 pandemic | News Immigration Law: Europe and the EU

The Court of Justice of the European Union decided by judgment of September 22, 2022 in joined cases C-245/21 and C-248/21 that a Covid-19-Pandemie suspension of the transfer procedure as part of a Dublin procedure does not lead to an interruption of the six-month transfer period. Once this period has expired, the requesting Member State becomes responsible for examining the asylum application.

LE, MA and PB applied for asylum in Germany in 2019. LE had previously applied for international protection in Italy. MA and PB entered the territory of that Member State illegally and were registered there as applicants for international protection. The competent German authority therefore asked the Italian authorities to take over LE and MA and PB on the basis of the Dublin III Regulation. The German authorities then rejected the asylum applications of those affected as inadmissible and ordered their deportation to Italy.

In February 2020, the Italian authorities informed the German authorities that, due to the Covid-19 pandemic, transfers under the Dublin III Regulation to and from Italy were no longer taking place. With decisions issued in March and April 2020, the responsible German authority suspended the execution of the orders for the deportation of the persons concerned in application of this ordinance, among other things, until further notice on the grounds that the execution of the transfers in view of the development of the Covid-19 pandemic is not possible.

By decisions of June and August 2020, the Administrative Court (Germany) overturned the decisions by which the authority had rejected the asylum applications of the persons concerned as inadmissible and ordered their deportation. The court found that the competence to examine the asylum applications of the persons concerned, even if assumed to have been in Italy, due to the expiration of the
The transfer period provided for in the Dublin III Regulation passed to Germany, since this period was not interrupted by the suspension decisions cited.

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The referring court, which is dealing with the leap-frog appeals against these court decisions, raises the question of whether the decisions issued to the persons concerned to suspend the implementation of the deportation orders can cause an interruption of the transfer period.
The Court of Justice rules that the transfer period provided for in the Dublin III Regulation is not interrupted if the competent authorities of a Member State, based on that Regulation, adopt a revocable decision suspending the execution of the transfer decision on the grounds that this execution is due to the Covid -19 pandemic is practically impossible.

Assessment by the Court

In that regard, the Court points out first of all that where the suspensive effect of an appeal against a transfer decision is granted by a decision taken by the competent authorities under the conditions of the Dublin III Regulation, the transfer period runs from the final decision thereon Appeal begins, so that the transfer decision must be implemented no later than six months after the final decision on the appeal. However, this solution presupposes that the decision to suspend the implementation of the transfer decision has been taken by the competent authorities within the limits of the scope of the provision providing for such a suspensive effect.
As regards that scope of application, the Court of Justice states, first, that the application of that provision is closely linked to the lodging of an appeal by the person concerned against the transfer decision, since the suspensive effect ordered by the authorities must apply ‘until the appeal has been completed’.

Secondly, as far as its context is concerned, that provision belongs to a section entitled ‘Procedural safeguards’. It is also contained in an article entitled “Appeals” and follows a paragraph devoted to the suspensive effect of the appeal against the transfer decision. It complements that paragraph by empowering the Member States to allow the competent authorities to suspend the implementation of the transfer decision in cases where the suspensive effect following the lodging of an appeal does not arise either by operation of law or by a judicial decision.

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Finally, as regards the objectives pursued by the Dublin III Regulation, the purpose of the six-month transfer period set by that Regulation is to ensure that the person concerned is effectively transferred to the Member State responsible for examining his or her application for international protection as quickly as possible . In view of the disruptive effect that the suspension of the implementation of a transfer decision has on the transfer period, an interpretation of this provision would be such as to authorize Member States to allow the competent authorities to suspend the implementation of a transfer decision for a reason which is not directly related In connection with the judicial protection of the data subject, there is a risk that the transfer period will be rendered ineffective, that the division of responsibilities between the Member States resulting from the Dublin III Regulation will be altered and that the processing of applications for international protection will be permanently in to pull the length.

The Court therefore assumes that the competent authorities may only suspend the implementation of a transfer decision within the framework set for this purpose by the Dublin III Regulation if the circumstances in connection with this implementation indicate that the the data subject, in order to guarantee him or her effective judicial protection, should be allowed to remain on the territory of the Member State that took the transfer decision pending the adoption of a final decision on the appeal. Consequently, an revocable decision suspending the implementation of a transfer decision on the grounds that it is practically impossible to implement it cannot be considered to fall within that framework. That conclusion cannot be called into question by the fact that the actual impossibility of implementing a transfer decision could, under the law of the Member State concerned, give rise to doubts as to the lawfulness of that decision. First, the revocability of a decision to suspend a transfer decision precludes the assumption that this suspension was ordered pending the completion of the appeal against the transfer decision and with the aim of ensuring the judicial protection of the person concerned, since it cannot be ruled out that it the conclusion of that appeal will result in the suspension being revoked. Second, it is clear from various provisions of the Dublin III Regulation that the EU legislature did not consider that the practical impossibility of implementing a transfer decision was suitable as a justification for interrupting or suspending the transfer period.

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Source: ECJ press release of September 22, 2022

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