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Asylum

Nejvyšší správní soud

Supreme Administrative Court

2 Azs 222/2016-24

5. 1. 2017

ECLI:CZ:NSS:2017:2.Azs.222.2016.24

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Art. 3; art. 17 of the regulation no. 604/2013

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International protection – Member State’s jurisdiction – art. 17(1) Dublin III – discretion – duty to provide reasons

When determining that another Member State is responsible for examining an application for international protection, is the administrative authority always obliged to consider why it has not exercised the discretion under Article 17(1) of the Dublin III Regulation, which allows a Member State to examine an application for international protection even if it is not responsible under the criteria set out in that Regulation?

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§ 10a(1)(b); § 25(i) of the act no. 325/1999 Coll., on asylum (zákon o azylu)

On February 26, 2016, the applicant applied for international protection in the Czech Republic, having previously stayed in Italy on a student visa. He left Colombia fearing for his life but didn’t seek asylum in Italy because those threatening his mother knew his location. He believed the Czech Republic was safer and had fewer issues with asylum abuse. Czech authorities found that, under the Dublin III Regulation, Italy was responsible for handling his asylum request, as his Italian visa had expired less than six months prior. They found no obstacles preventing his transfer to Italy.

Regional court, upon examining action taken against the administrative decision ruled, that the application of Article 17 of the Dublin III Regulation is a right, not an obligation for member states, and thus cannot be legally enforced. It also noted that discretionary powers under Article 17 can only be used in specific cases based on the criteria in Chapter III of the regulation, and not when residual criteria are applied. The court concluded that the authorities were not required to justify why Article 17 was not applied, as it was irrelevant in this particular case.

Upon a cassation complaint, the Supreme Administrative court's reasoning emphasizes that while Article 17 of the Dublin III Regulation grants member states discretionary power to assess asylum applications, this power must be exercised within legal limits to prevent arbitrary decisions. The court underlines that such discretion should be applied only in exceptional cases where following the standard criteria for determining the responsible state might fail to provide adequate protection to the asylum seeker. For instance, if the applicant faces threats in the state deemed responsible under Dublin III, and that state cannot provide effective protection, the discretionary power should be considered to ensure the applicant's safety. The court notes that the goal of the regulation is to ensure meaningful international protection, and in cases where this is at risk, the discretion should be thoughtfully applied.

Moreover, the court stresses that decisions regarding the use of discretion must be well-reasoned and based on the specific circumstances of the case. While the use of discretion is not required in every instance, when significant concerns or special circumstances are evident, the responsible authority must address these concerns in their decision-making process. The court highlights the importance of clear, fact-based justifications in administrative decisions, particularly when rejecting the use of discretionary power under Article 17. If relevant factors, such as potential risks to the applicant in the responsible state, are not adequately considered, it could lead to a failure in providing effective international protection, contrary to the regulation’s objectives.

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consistent interpretation

The decision cites other national decisions on how a discretion is always limited or circumscribed in the rule of law and is not and shall not be unlimited, otherwise it would create room for arbitrariness which is unacceptable.

The decision does not cite any foreign decisions.

The Court mentions, in addition, the case law of the Constitutional Court, according to which one of the principles that constitutes part of the right to due process and excludes arbitrariness in decision-making is the obligation to give proper reasons for the decision.

The decision does not cite any decisions of supranational courts.

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No

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Yes

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Ondřej Kadlec, Šimon Chvojka, Masaryk University

1.    Regional court Hradec Králové, decision no. 43 Az 17/2016-59 of 21. 7. 2016 (date)
2.    Supreme Administrative Court, decision no. 2 As 222/2016-24 of 5. 1. 2017 (date)