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ECRE publishes case law note on application of Dublin Regulation to family reunion cases

Date of Publication: 
19 February 2018

Legal note considers and summarises cases on family reunion from European national courts

ECRE publishes case law note on application of Dublin Regulation to family reunion cases

19 February 2018

The European Council on Refugees and Exiles (ECRE) and the European Legal Network on Asylum (ELENA) have published a useful new case law note on the application of the Dublin Regulation to family reunion cases.

You can download the 15-page note here.

The legal note gathers examples of jurisprudence from European national courts on the topic of family reunion within the Dublin Regulation. Its structure follows the legislative standards in EU law and international law as well as the jurisprudence of the European Courts before listing domestic case law on family reunion provisions.

ECRE says that the most pertinent articles of the Dublin Regulation for family reunion are articles 8 to 11 and article 16. The note looks separately at how national courts have interpreted articles 8 to 11, and at the interpretation given to articles 16 and 17.

Cases from Austria, Germany, Ireland, Luxembourg, the Netherlands, Switzerland and the UK are considered and briefly summarised.

On the earlier articles, the case law note states: "An important aspect of the case law identified is the interpretation of Articles 6 and 8 of the Dublin Regulation and the guarantees for children who are subject to a Dublin transfer decision. The case law is relatively coherent in that there are proactive duties on Member States to, inter alia, investigate and communicate with one another on family links, to make sure that the child has the right to be heard and is in fact heard (applying not only to cases where they risk being sent back to another country but also being sent to a country where a family member is) and to ensure that at the forefront of decision makers minds is that the transfer is in that child's best interests and to prevent a transfer where that is not the case. Interestingly, a decision from the Luxembourg Administrative Tribunal considers that as part of this assessment the child's schooling and education must be taken into consideration."

ECRE says the national case law on articles 16 and 17 of the Dublin Regulation raise, amongst others, one key question: how discretionary are the discretionary clauses?

The note states: "National jurisprudence is divergent on the discretionary nature of Articles 17(1) and (2). In Germany, for example, the Courts have ruled that the assessment of Article 17(1) must be done in compliance with the best interests of the child and family reunification. Where both can be achieved by applying Article 17(1) there is an obligation on the State to apply the sovereignty clause. Similar reasoning has been given by the Swiss Federal Administrative Court. In Austria, the Federal Administrative Court has held that, at the very least, there is an obligation on the authorities to undertake an examination of Articles 16(1), 17(1) and (2) with a view to assessing whether family life should be protected. Indeed, in one case the Federal Administrative Court held that in light of the Regulation's purpose of securing the family unit, wherever there is doubt as to the worthiness of protecting family unity, the family members should not be separated.75 By extension this would arguably mean that the dependency or discretionary clauses are to be used in such cases. Interestingly, in several Austrian cases, the Federal Administrative Court also emphasises the duties on Austrian authorities to be transparent and communicate information to other Member States who may otherwise be responsible for an applicant's claim.

"Additionally, the case law identified illustrates that the discretionary clauses are not solely applied to situations where a prior assessment and subsequent non-satisfaction of the other responsibility criteria has first been done. In other words, the Courts have assessed the responsibility criteria in conjunction with the discretionary clauses. This finding was also held in the UK in RSM where the Upper Tribunal held that Article 8 DRIII read in conjunction with Article 17(1) can serve to expedite family re-unification. On appeal the Court of Appeal partially agreed with this point in para 122 where it stated that Article 8(2) is not self-executing and that Article 17 can be a mechanism to carry out a transfer. However, the Court's conclusion that the applicant needs to be in the UK in order to fulfil the definition of lodging for the purposes of applying Article 17(1) renders the expedition aspect of the Article, and arguably a function of Article 17(1) itself, entirely redundant."