The Court of Justice, in a ruling dated February 16, 2023 (Case C-745/21, Staatssecretaris van Justitie en Veiligheid), ruled on the preliminary reference made by the Dutch judicial authority on international protection, specifically on the recognition of an asylum application filed by a Syrian national.

 

The dispute was between a Syrian national and the Staatssecretaris van Justitie en Veiligheid, i.e., the State Secretary for Justice and Security of the Netherlands, regarding the latter's refusal to process the application for international protection filed by that national and to transfer that application to the Republic of Lithuania, which was deemed competent.

In fact, the applicant in the main proceedings had obtained from the representation of the Republic of Lithuania in Belarus a visa valid from August 10, 2016, to November 9, 2017, and after finally leaving Syria, she reached the Netherlands on September 27, 2017. As soon as she arrived on Dutch territory, she applied for asylum and within days married a third-country national who had already been granted asylum by the competent Dutch authority. In response, the Dutch authorities referred the asylum application to the Lithuanian authorities under Article 12 and of the Dublin III Regulation and ordered the applicant's transfer. However, the latter declared and attested that she was pregnant. She later gave birth to a daughter on Dutch territory whose father was her husband, as attested by the experts' report.

 

The appellant decided to bring an action before the Hague Tribunal to have the contested decision annulled, claiming a violation of Articles 9, 16 and 17 of the Dublin III Regulation, read considering the best interests of the child at the time the application for asylum was made.

The Dutch court referred three questions to the Court of Justice for a preliminary ruling. First, it asked whether European Union law precludes, in the context of the decision of the Member State responsible for examining an asylum application, the attribution of independent relevance under national law to the best interests of a child with whom the applicant was pregnant at the time the application was made. It then posed the questions of whether Article 16 of the Dublin III Regulation should be interpreted to mean that it applies when there is a relationship of dependency either between an applicant for international protection and his or her spouse legally residing in the Member State in which the application for protection was made, or between the unborn child of that applicant and that spouse who the father of that child is also.

 

The ECJ reversed the order of examination, first resolving the second and third questions, then the first. Specifically, it ruled that given the clear literal wording, Article 16 of the Dublin III Regulation applies where there is a direct relationship between the applicant and the persons listed in the provision. Therefore, it does not apply in the case of a dependent relationship between the applicant's child and one such person, such as, in the present case, the father of the child who is also the spouse of the international protection applicant.

It also held that it is within the power of member states, by virtue of the discretionary clause contained in Article 17 of the Regulation in question, to be able to examine applications for international protection even if it is not competent according to the criteria determined by the Regulation, a power not subject to any condition. In this sense, therefore, the question posed by the referring court must be resolved in the sense that Article 16 does not preclude national legislation from requiring the examination of the application for international protection by way of derogation from the established criteria and on the sole ground of the overriding interest of the child. It is therefore up to the referring court to examine whether, in the main proceedings, the competent national authorities have violated national law by rejecting the application for international protection submitted by the applicant in the main proceedings, even though she was pregnant at the time of the submission of that application.

 

(Comment by Alessandro Cupri)