The European Court of Justice has given its opinition that member states must respect the timeframes for asylum procedures when they want to send someone back to another Dublin III country.
A man applied for asylum in Bulgaria, but then traveled on to Austria. An Austrian court asked the ECJ whether it was allowed to send him back for the asylum procedure. The ECJ argued that this was not necessarily the case; Austria would have to respect a time limit.
The Iranian came to Austria via Bulgaria. The rule is that the application for asylum has to be treated by the member state where the person entered first. Bulgaria had declared it would take the man back. However, Austria missed the deadline to send the man back to Bulgaria. The Iranian argued that, therefore, Austria was in charge of his application.
“...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.”
The preliminary ruling added:
“In addition, the Court holds 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 Member States are obliged to provide in this regard for an effective and rapid remedy.
The court explained 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 case, 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 top EU court also stated 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 case is C-201/16 (Majid Shiri v Bundesamt für Fremdenwesen und Asyl).