Case registered before the CJEU as Case C-338/21

The applicants were rejected the applications for temporary residence permits based on the fact that Italy was the state responsible for determining their applications and the Italian authorities did not oppose to the transfer, thus the State Secretary was not responsible to determine their applications.  

All three applicants reported to have been victims of human trafficking in the Netherlands and/or also in Italy. The State Secretariat considered these statements as applications for being granted a regular residence permit for a fixed period, based on temporary humanitarian protection as provided by the Aliens Decree 2000. According to the Dutch system, an application for residence due to trafficking in human beings triggers the start of a new separate procedure from the procedure regarding the application for international protection. The State Secretary rejected these applications based on human trafficking and the foreigners contested the negative decisions. Objections from applicants 1 and 3 were rejected as unfounded by the State Secretariat and those from applicant 2 were not decided as he withdrew them.

With regard to the proceedings for international protection, in all 3 cases the court annulled the State Secretariat decisions not to consider the applications and consequently the State Secretariat would have to consider them again. Upon appeal submitted by the State Secretariat, the preliminary judge allowed an interim injunction allowing the appellant not to consider the cases until a final resolution adopted in the appeal.

The State Secretary was also requested by the Council of State to inform on the final transfer period for all three cases.

In the applications for foreigners 2 and 3, the court noted that the transfer period expired on 28 May 2020, respectively 20 May 2020, with the consequence that Netherlands became responsible for the applications for international protection. It based its reasoning on the Dutch legislation and system, as provided in section B1/7.2 of the Aliens Act Regulations 2000 and considered that the transfer period provided by Article 29(1) of the Dublin III Regulation can only be suspended in accordance with the Article 27(3) of the Dublin Regulation. In fact, it results that aa foreigner can, within a reasonable deadline, to request a judicial authority to suspend the execution of the transfer decision pending the outcome of an appeal or objection against the transfer decision. The Court held that the appeal against the decisions taken in the procedure concerning the application for residence permit on huma trafficking grounds can not e considered an interim injunction against the transfer decision and can not lead to the suspension of the transfer period.

The State Secretary appealed in all 3 cases arguing that the transfer periods have not lapsed and the periods have been suspended based on the objections related to the proceedings against the negative decision on the applications for residence permit on human trafficking grounds.

The Administrative Jurisdiction Division of the Council of State of the Netherlands (Division) referred questions for preliminary ruling to the ECJ about the time limit for transfer in Dublin cases, as follows:

Should Articles 27(3) and 29 of Dublin III Regulation be interpreted as not precluding national legislation such as the one at issue here, in which a Member State has opted to implement Article 27(3), but has also granted suspensive effect from the implementation of a transfer decision to an objection or appeal against a decision in a procedure regarding an application for a residence permit in connection with human trafficking, not being a transfer decision, which does temporarily prevent the actual transfer?