2.4.2. Dublin procedure

The Grand Chamber of the CJEU held in H.A. v Belgium (C-194/19) that applicants who challenge a transfer decision must be able to rely on circumstances that occurred after the adoption of that decision, if the circumstances are decisive for the correct application of the criteria. The court underlined that it is up to each Member State to lay down the procedural arrangements for legal action intended to guarantee effective judicial protection. Such a remedy may be distinct from an action for review of the transfer decision. The results of that remedy are binding on the competent authorities, and the remedy must not depend on the person’s deprivation of liberty or on the fact that the implementation of the transfer decision is imminent.

In two cases, EV v Agence fédérale pour l’accueil des demandeurs d’asile (Fedasil) (C‑134/21) and VW v Agence fédérale pour l’accueil des demandeurs d’asile (Fedasil) (C‑92/21), the CJEU ruled that the Dublin III Regulation, Article 27, does not preclude a Member State from taking preparatory measures for a transfer to another Member State, such as assigning the applicant to a specialised reception facility where support is provided in preparation of the transfer. The court specified that the measure can be taken even if a person appeals the Dublin transfer.

In K.S., M.H.K. v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland, The Attorney General, and R.A.T., D.S. v Minister for Justice and Equality (C-322/19 and C-385/19), the CJEU was asked if an applicant for international protection who has received a Dublin transfer decision may access the labour market by relying on the recast Reception Conditions Directive, Article 15(1). The court ruled that the Member State’s obligation to grant access to the labour market only ceases when the applicant is transferred to the requested Member State. It held that there was only one type of ‘applicant’ within the international protection process. The court also addressed the issue of what was meant by ‘delay’ on the part of an applicant in the context of the processing of their application for international protection.