The case concerned a request for a preliminary ruling on the interpretation of Article 2(l) of the Dublin III Regulation on whether a diplomatic card issued under the Vienna Convention can be regarded as a residence document for the purposes of the Dublin III Regulation.

The national proceedings concerned the State Secretary for Justice and Security in the Netherlands and two applicants, E. and S. acting in their name and for their minor children. The applicants had lived in one of the Member States as the father was a member of a diplomatic mission and they had diplomatic cards issued by the Ministry of Foreign Affairs of that Member State. After they left that Member State, while the diplomatic cards were still valid, they applied for asylum in the Netherlands.

By decision of 31 July 2019, the State Secretary considered that under Article 12(1) of the Dublin III Regulation, the Member State which had issued diplomatic cards was responsible for examining those applications since the diplomatic cards constituted residence documents. On 25 September 2019, the other Member State accepted the take charge requests and by decision of 29 January 2020, the Netherlands refused to examine their applications. On appeal, the District Court of the Hague held that the State Secretary had erred and argued that diplomatic cards issued by the authorities of that Member State could not be considered as authorisation to stay because E. and S. already had a right to stay in that Member State under the Vienna Convention.

The Dutch Council of State asked the CJEU to determine whether a diplomatic card issued by a Member State under the Vienna Convention constitutes a residence document within the meaning of Article 2(l) of the Dublin III Regulation.

The CJEU ruled that a diplomatic card issued under the Vienna Convention on Diplomatic Relations, is a ‘residence document’ within the meaning of Article 2(l) of the Dublin III Regulation.

The court noted that the issuance of a diplomatic card reflects the Member State’s acceptance of the person’s stay on its territory as a member of the diplomatic staff of a mission, and thus demonstrates the role played by that Member State in the presence of that person on the territory of the Member States. It also noted that interpreting the concept of residence document as covering a diplomatic card corresponds to the general scheme of the criteria set out in Articles 12 to 14 of the Dublin III Regulation. The court further noted the opinion of the Advocate General which observed that the Dublin III Regulation would be undermined if those enjoying privileges and immunities under the Vienna Convention could choose the Member State in which to lodge an asylum application.

The court also noted another observation of the Advocate General, namely that the Dublin III Regulation does not provide for the exclusion of persons with a legal status governed by the Vienna Convention and does not contain derogating rules concerning the effects to be attached to the issuance of a diplomatic card for the purposes of determining the Member State responsible for examining an application for international protection.