European Court rules in case of Iranian who protested his removal from Austria to Bulgaria

Written by on October 26, 2017 in Bulgaria - Comments Off on European Court rules in case of Iranian who protested his removal from Austria to Bulgaria

The European Court of Justice has ruled in the case of an Iranian national who brought a challenge before the Austrian courts in relation to the decision refusing his application for international protection in Austria and his removal to Bulgaria.

Majid Shiri, an Iranian national, brought a challenge before the Austrian courts in relation to the decision refusing his application for international protection in Austria and his removal to Bulgaria.

Shiri entered the EU in Bulgaria, where he also lodged an application for international protection. Bulgaria agreed to take Shiri back.

However, Shiri submitted that, pursuant to the Dublin III Regulation, Austria is now responsible for examining his application because he was not transferred to Bulgaria within a period of six months from the Bulgarian authorities’ agreement to take him back.

The Verwaltungsgerichtshof (Higher Administrative Court, Austria) asked the European Court of Justice whether, under the Dublin III Regulation, the expiry of the six-month period in question is sufficient in itself to result in such a transfer of responsibility between EU countries.

If necessary, it also sought to ascertain whether an applicant for international protection can rely on such a transfer of responsibility before a court or tribunal.

By the October 25 judgment, the European Court replied that, where the transfer does not take place within the six-month time limit, responsibility is transferred automatically to the member state which requested that charge be taken of the person concerned (in this instance, Austria), without it being necessary for the member state responsible (in this instance, Bulgaria) to refuse to take charge of, or take back, that person.

That solution is not only apparent from the wording of the Dublin III Regulation, but is also consistent with the objective of the rapid processing of applications for international protection, the court said.

Such a solution ensures that, in the event of a delay in the take charge or take back procedure, the examination of the application for international protection will be carried out in the member state where the applicant is, so as not to delay that examination further.

In addition, the court held that an applicant for international protection can rely on the expiry of the six-month period. That is true irrespective of whether that period expired before or after the transfer decision was adopted, the court said.

The member states are obliged to provide in this regard for an effective and rapid remedy, the European Court said.

The court said that in this context that, where the six-month period has expired after the date on which a transfer decision was adopted, the competent authorities of the requesting member state (in this instance, Austria) cannot carry out the transfer of the person concerned to another member state.

“On the contrary, they are required to take, on their own initiative, the necessary measures to acknowledge the responsibility which is transferred to them and to initiate without delay the examination of the application for international protection lodged by the person concerned.”

The court also states that the right, provided for by Austrian legislation, to plead circumstances subsequent to the adoption of the transfer decision, in an action brought against that decision, amounts to an effective and rapid remedy enabling the expiry of the transfer period to be relied upon, the statement said.

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