A Syrian national applied for asylum in Denmark on 1st July 2016 and was issued a temporary residence document pursuant to Paragraph 7(3) of the Law on Foreign Nationals, by decision of 29 August 2016. That residence document was initially valid for one year and further extended automatically for the same duration until on 17 November 2020 the Danish determining authority decided not to renew it, pursuant to Paragraph 11(2) of the Law on Foreign Nationals.

The applicant further requested asylum in Finland on 27 July 2021, and the Finnish Immigration Service submitted a take back request to the Danish Immigration authorities, which the latter accepted. The Finnish Immigration Service rejected the asylum application as inadmissible, and the applicant unsuccessfully lodged an appeal before the Administrative Court of Helsinki.

The applicant further appealed before the Supreme Administrative Court (referring court) which considered the need to clarify the meaning of Article 18 (1) (d) of the Dublin III Regulation and whether it is applicable to the case, specifically whether the applicant’s request for  international protection in Denmark may be regarded as an ‘application [which] has been rejected’ within the meaning of that provision. The referring court first noted that the applicant was granted a temporary residence permit for which the competent authority decided, on its own motion, not to renew. As such, the question was whether it was possible to consider that the application has been rejected, within the meaning of Article 18(1)(d) of the Dublin III Regulation.

Second, the referring court reiterated that Denmark has concluded an agreement with the EU where Denmark agreed to apply the Dublin III Regulation but not secondary EU law to which that regulation refers, specifically the Qualification Directive (QD) as mentioned by Article 2(b) of the Dublin III Regulation. It noted that Denmark offers protection based on its national legislative framework and the residence permit granted to the applicant corresponds to subsidiary protection pursuant to the Law on Foreign Nationals. The referring court sought to determine whether an application for international protection made by a third-country national to the Danish authority may be regarded as an ‘application [for international protection]’ within the meaning of Article 18(1)(d) of the Dublin III Regulation.

The question referred by the Supreme Administrative Court reads as follows:

‘‘Must Article 18(1)(d) of [Regulation No 604/2013] be interpreted as meaning that the rejection of an application, within the meaning of that provision, covers a situation in which a temporary residence document based on the need for protection previously granted to the person concerned in Denmark on his or her application was not renewed, where the decision not to renew was not taken on the application of that person but by the authority concerned of its own motion?’

The CJEU first noted that the question and guidance on interpretation of Article 18(1)(d) of the Dublin III Regulation are made in a specific legal context because Denmark has a special status, distinct from other Member States, as mentioned it its judgment  SI, TL, ND, VH, YT, HN v Bundesrepublik Deutschland (C-497/21, 22 September 2022, Application for asylum rejected by Denmark).

The court noted that the definition of the concept of ‘application for international protection’ in Article 2(b) of the Dublin III Regulation does not apply to Denmark since it refers to Article 2(h) of the QD. In view of the specific legal context, the court recalled that an application which must have been rejected can only be an application made to the competent authorities of that Member State with a view to obtaining one of the forms of international protection as enshrined under national law. Since the QD does not apply to Denmark, applications submitted to its national authorities cannot seek one of the forms of protection under that Directive. Consequently, the court investigated whether the obligation to take back or under implementation of Article 18(1)(d) of the Dublin III Regulation is different for Denmark than from other Member States, as it requires the existence of an application for international protection within the meaning of Article 2(h) of the QD.

In light of the agreement between Denmark and the EU and the need to ensure effectiveness,  the court clarified that applications made in Denmark for one of the forms of international protection pursuant to the applicable domestic law must, for the purposes of Article 18(1)(d) of that regulation, be treated in the same way as applications made in any other Member State for the purpose of being granted international protection under the QD.

The court further interpreted the term ‘rejected’ in the wording of Article 18(1)(d) of the Dublin III Regulation and ruled that it is an independent concept of EU law to be interpreted uniformly based on its meaning and in view of the context and objective set this article.  

From a literal point of view, the CJEU noted that the term rejection refers to the action of refusing to grant a positive decision, irrespective of whether the respective positive outcome and agreement are temporary or definitive in their nature. As such, the court concluded that the term cannot refer to the action of agreeing to provide a positive outcome to such an application and underlined that both the Regulation and other act of secondary EU law support the literal interpretation of the term. Also, the court emphasised that both the QD and the Asylum Procedures Directive (APD) make a clear distinction between the situation in which an application for international protection is ‘rejected’ by the competent authority of a Member State from situations in which that authority terminates, withdraws, revokes or does not renew the international protection granted to a third-country national. Thus, the latter decision presupposes that there was a positive outcome different from situations when an application is rejected and referred to as ‘negative decision’ under the APD.

In such a context, the court determined that the concept of rejection referred to in Article 18(1)(d) of the Dublin III Regulation does not include the non-extension or non-renewal of a residence document previously issued to a third-country national who made an application for international protection.

Therefore, the CJEU ruled that ‘Article 18(1)(d) of the Dublin III Regulation must be interpreted as meaning that that the non-extension or non-renewal of a residence document previously issued to a third-country national may not be treated in the same way as a rejection of the application for international protection made by that national, within the meaning of that provision.’