AHY, a Somali national, applied for asylum in Ireland, claiming that he was the victim of a bomb attack in Somalia which destroyed his shop, killed one of his employees and left him injured and with scars on his hands and arm. A Eurodac search showed that the applicant had already requested asylum in Sweden and that both his applications were rejected there. The Irish authorities made a take back request to Sweden under Article 18(1)(b) of the Dublin III Regulation, to which Sweden agreed on 19 February 2020 and the applicant was notified of the transfer on 23 July 2020. The applicant appealed before the International Protection Appeals Tribunal (IPAT) against the transfer decision and he requested the application of the discretionary clause in Article 17(1) of the Dublin III Regulation, claiming that he suffered from depression. The IPAT dismissed the appeal on 5 October 2021. The applicant made a request to the Minister for Justice on 15 November 2021 requesting the exercise of the discretionary clause in Article 17(1) of the Dublin III Regulation and his request was rejected on 16 February 2022. AHY challenged this decision before the High Court, which decided to refer several questions for preliminary ruling to the CJEU.

In the referral to the CJEU, the High Court noted that in Ireland, the decision on the Dublin transfer lies within the competence of the International Protection Office (IPO) (with appeal before the IPAT), while the decision on whether or not to exercise the discretion under Article 17(1) of the Dublin III Regulation is within the competence of the Minister for Justice (with judicial review of the lawfulness of administrative action before the High Court). It further noted that the CJEU had not previously decided on the matter of suspensive effect for the appeal lodged against a decision refusing to apply Article 17 of the Dublin III Regulation.

The High Court referred the following questions:

‘(1)      Does the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a “transfer decision” pursuant to the provisions of [Article] 27(1) of [the Dublin III Regulation] encompass the right to such an effective remedy against a decision made by the Member State under Article 17(1) of the Dublin III Regulation as to the exercise of its discretion under Article 17(1) as to whether it should examine the international protection application lodged with it by a third-country national or a stateless person even if such examination is not its responsibility under the criteria laid down in the Dublin III Regulation?

(2)      If the answer to question 1 is “yes”:

(a)      Does it follow that a requesting Member State is precluded from implementing a transfer decision pending the determination of an applicant's request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?

(b)      Do the provisions of Article 27(3) [of the Dublin III Regulation], which require Member States to provide in their national law for one of three forms of suspensive effect for the purposes of appeals against or reviews of transfer decisions, include a challenge to a decision under Article 17(1) refusing to exercise the option of assuming responsibility for an international protection application …?

(c)      Where no specific national law provides for one of the three forms of suspensive effect in Article 27(3) [of the Dublin III Regulation] in the event of a challenge to [a] refusal decision [under Article 17(1) of that regulation], are the courts on such a challenge obliged to grant suspensive effect in one of those three forms in its national law and, if so, which one?

(d)      Must each and all of the suspensive remedies under Article 27(3) [of the Dublin III Regulation] be interpreted to operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of the Dublin III Regulation?

(3)      If the answer to question 1 is “no”:

(a)      Does the right to an effective remedy under Article 47 of the [Charter] preclude a requesting Member State from implementing a transfer decision pending the determination of an applicant's request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?

(b)      Does the right to an effective remedy under Article 47 of the [Charter] preclude a requesting Member State from implementing a transfer decision pending the determination of a challenge by way of judicial review brought under the provisions of national law to [a] refusal decision [under Article 17(1) of the Dublin III Regulation]?

(c)      Alternatively, does a challenge by way of judicial review brought under the provisions of national law to [a] refusal decision [under Article 17 of the Dublin III Regulation] operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of [that regulation] or otherwise have suspensive effect on the transfer decision?'

The CJEU (Second Chamber) ruled that Article 27(1) of the Dublin III Regulation “must be interpreted as not requiring Member States to make available an effective remedy against a decision adopted under the discretionary clause contained in Article 17(1) of that regulation.”

The CJEU also held that Article 47 of the EU Charter “must be interpreted as not applying to a situation in which an applicant for international protection who is the subject of a transfer decision has requested the Member State which adopted that decision to exercise its discretion under Article 17(1) of Regulation No 604/2013 or has sought a judicial remedy against the outcome of that request, with the result that that provision of the Charter of Fundamental Rights a fortiori does not preclude a Member State from implementing, in those circumstances, a transfer decision before that request or any action challenging the outcome of that request has been determined.”

The CJEU also ruled that the first subparagraph of Article 29(1) of the Dublin III Regulation “must be interpreted as meaning that the six-month time limit to proceed to the transfer of an applicant for international protection which is laid down in that provision starts to run from acceptance of the request by another Member State to take charge or to take back the person concerned or from the final decision on an appeal against or review of a transfer decision where there is a suspensive effect in accordance with Article 27(3) of that regulation, and not from the date of the final decision on an action challenging the decision of the requesting Member State, taken after the adoption of the transfer decision, not to make use of the discretionary clause under Article 17(1) of that regulation to examine the application for international protection.”