On 1st August 2022, the Court of Justice of the EU (‘the CJEU’/ ‘the Court’) delivered a whole set of rulings raising highly sensitive questions relating to family reunification of migrants and asylum seekers (C-19/21, Joined Cases C‑273/20 and C‑355/20, C-720/20). One of the issued judgements, I, S v Staatssecretaris van Justitie en Veiligheid (C-19/21 ‘I, S case’), provides for precious insights on the importance of the concept of family unity and the scope of the fundamental right to an effective remedy in the context of application of Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection (‘the Dublin III Regulation’/ ‘the Regulation’).
In the case at hand, a minor Egyptian national applied for international protection in Greece. During the submission of the application he expressed the wish to be united with his uncle, an Egyptian national who resided legally in the Netherlands. Pursuant to the procedure foreseen in Article 8(2) of the Dublin III Regulation, the Greek authorities addressed to the Netherlands authorities a request to take charge of the unaccompanied minor. According to Article 8(2) the asylum application of an unaccompanied minor who has a relative in another Member State should be examined by that Member State and the minor concerned should be united with the relative, provided that it is in the best interests of the child. Yet, in the present case, the request issued by Greece was rejected by the Netherlands authorities on the ground that the identity of the child and the alleged family relationship could not be established. The asylum seeker and his purported uncle tried to challenge the decision without success. Their action was rejected as, according to the Netherlands authorities, the Dublin III Regulation did not provide for a possibility to contest a decision refusing a take charge request. In these circumstances, the District Court in The Hague, decided to ask the CJEU whether a judicial remedy against the refusal of the request to take charge could be derived from Article 27 of the Dublin III Regulation or Article 47 of the Charter of Fundamental Rights of the EU (‘the Charter’) which guarantee the right to an effective remedy.
At the outset, the Court noticed that although Article 27(1) of the Regulation “appears to grant the applicant for international protection a right to a remedy only for the purpose of challenging a transfer decision”, this provision “does not exclude the possibility that an unaccompanied minor applicant may also enjoy a right to a remedy for the purpose of challenging a decision to refuse a take charge request” (para. 32). It then emphasised that the provision must be interpreted in compliance with fundamental rights enshrined in the Charter, in particular Article 7 guaranteeing the right to respect for private and family life, Article 24 protecting the rights of the child and Article 47 guaranteeing the right to an effective remedy. Referring to the seminal case Ghezelbash (C-63/15), the CJEU recalled that a restrictive interpretation of the scope of the remedy provided in Article 27(1) of the Dublin III Regulation might deprive the rights conferred on asylum seekers by that regulation of any practical effect (para. 39).
The Court observed that if the minor applicant had applied for asylum in the Netherlands and if the Greek authorities had agreed to take charge of him (Greece being the country of first arrival and thus, the Member State responsible for examining an application for international protection.), he would undoubtedly have been entitled to challenge the transfer decision adopted by the Netherlands authorities. In such a situation, he could plead the violation of the right to family unity stemming from Article 8(2) of the Regulation. It was thus clear that a similar remedy should be available also to the applicant wishing to challenge a decision refusing the take charge request. The Court then underlined that such an interpretation of Article 27(1) of the Regulation allows the full respect of the fundamental rights of the child which Article 8(2) of the regulation seeks to protect. The Court specified however that the decision refusing to take charge request can be challenged only by the applicant himself and not by his uncle given that Article 27 does not confer any right on the applicant’s relatives.
The judgement of the Grand Chamber is conspicuously marked by the references to the objective of protection of fundamental rights and the relevant Charter provisions. On several occasions, the Court highlighted the key role of the right to an effective remedy in the protection of fundamental rights of the unaccompanied minor. The concern for protection of these rights legitimises the generous interpretation of Article 27 of the Regulation. Such an interpretation could not have been achieved through the literal reading of the provision. A newly “created” judicial remedy is perceived primarily as a tool ensuring the protection of fundamental rights.
Alicja Słowik, New clarifications on the scope of the right to an effective remedy under the Dublin III Regulation, actualité du CEJE n°20/2022, 1 septembre 2022, disponible sur www