EU Member States must apply the discretionary clauses in order to respect their human rights obligations. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin Regulation) requires the EU member states to examine the applications of the family members of beneficiaries of such protection and other applicants in their territory and to allow their transfer.
The Regulation provides for additional conditions, but most importantly it narrowly defines ‘family members’ as the spouse of the applicant or his or her unmarried partner in a stable relationship, their minor children, the father, mother or another adult responsible for the minor unmarried applicant.
| If interpreted narrowly such definition imposes an obligation on the Member States not to transfer the members of the family beyond this narrow definition. Such interpretation is not in line with the general obligation to respect private life and family, imposed by EU law, ECHR and other international documents. Or in accordance with Recitals to the Regulation, the respect for family life should be a primary consideration of Member States when applying this Regulation (14), the processing together of the applications for international protection of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly, the decisions taken in respect of them are consistent and the members of one family are not separated (15), and in order to ensure full respect for the principle of family unity and for the best interests of the child, the existence of a relationship of dependency between an applicant and his or her child, sibling or parent on account of the applicant’s pregnancy or maternity, state of health or old age, should become a binding responsibility criterion. (16) |
The impasse is avoided by applying the discretionary clauses of Article 17 of the Regulation. This is, indeed, one of their chief purposes. As the Proposal for the Regulation noted, they aim inter alia “at avoiding situations where family members would be separated due to the strict application of the Dublin criteria”. Thus, any Member State should be able to derogate from the responsibility criteria, in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in Dublin Regulation.
This was confirmed by EUCJ in case K. C‑245/11 underlining that notwithstanding the fact that the definition of ‘family members’ within the meaning of Article 2(i) of Regulation No 343/2003 does not cover the daughter-in-law or grandchildren of an asylum seeker, Article 15 of that regulation must nonetheless be interpreted as meaning that such persons are covered by the words ‘another relative’ used in Article 15(2) (38).
When applying the regulation, the case‑law of the European Court of Human Rights on Articles 3 and 8 of the ECHR is to be taken into account for the interpretation and application of Articles 4 and 7 of the Charter, regard must be had to Article 52(3) of the Charter. Under that provision, the rights contained in the Charter of Fundamental Rights which correspond to rights guaranteed by the ECHR have the same meaning and scope as the corresponding rights laid down by the ECHR. It is also expressly provided in Article 52(3) of the Charter that that provision does not prevent EU law providing more extensive protection.
Moreover, under Family Reunification Directive 2003/86, the Member State concerned may authorise family reunification of other family members if they are dependent on the refugee. See more in recent EUCJ Judgement in Case C‑560/20 which concludes inter alia that the Directive must be interpreted as requiring a residence permit to be granted to the adult sister of an unaccompanied minor refugee, who is a third-country national and who, on account of a serious illness, is totally and permanently dependent on the assistance of her parents, where a refusal to grant that residence permit would result in that refugee’s being deprived of his or her right to family reunification with his or her first-degree relatives in the direct ascending line.
The Member State in which the asylum seeker is present but which in accordance with the criteria of Regulation is not responsible for his asylum application may thus not transfer the asylum seeker to the Member State responsible under of Regulation if it cannot be unaware that this would lead to an infringement of the asylum seeker’s rights guaranteed by the Charter of Fundamental Rights. In such a case the Member State in which the asylum seeker is present must, subject to the right itself to examine the application disregard the general criterion of responsibility under which the other Member State is responsible. The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article 3 of the Regulation.
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