SM applied for asylum in Greece in December 2017. He informed the authorities that his wife had been granted asylum and was living in Sweden. The Greek authorities asked Sweden to take over the responsibility for processing SM’s asylum application in accordance with article 9 of the Dublin Regulation. The Swedish Migration Agency decided to not accept the proposed transfer of responsibility for SM’s asylum case. SM appealed the decision to the Migration Court where he claimed that the court should affirm that his application for international protection should be processed in Sweden. He argued that the individual’s right to family reunification must be given the highest priority when implementing the Dublin Regulation. The Migration Court dismissed the appeal with the following arguments: according to article 27.1 in the Dublin Regulation a person shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision. In this case, however, there was no transfer decision to appeal. The court states that the Swedish Migration Agency´s answer to Greek authorities, on their question to take over SM, cannot be seen as a official transfer decision. Consequently, the formulation of article 27.1 in the Dublin Regulation cannot give

SM the right to appeal, because in this case, there is no decision. Regarding SM´s reference to his right to family reunification, the court argues that this decision does not mean that SM cannot appeal for family reunification on other grounds. SM appealed the Migration Court’s decision to the Migration Court of Appeal. In his appeal he, once again, claimed that the court should affirm that his application for international protection should be examined in Sweden. He also claimed that the court should ask for a preliminary ruling by the European Court of Justice. Regarding his right to family reunification he argues that the Dublin Regulation, itself, gives access to such a right and that it therefore should be enough to refer to the Dublin Regulation.

 

The key legal question raised in this case is whether the regulation of an effective remedy according to recital (skäl) 19 and article 27 in the Dublin Regulation, gives an asylum applicant the right to appeal the decision of a member state to not agree to a transfer request from the member state, in which the asylum applicant has applied for asylum. The initial and main reason for the SM’s request for his case to be processed in Sweden, i.e. his wish to be with his wife and his right to family reuinification did never become the focus of the legal question.

 

First of all, the Migration Court of Appeal considered that the question of how to interpret Union law in this case is so obvious that there is no reason to ask the European Court of Justice for a preliminary ruling. The claim for such a preliminary ruling was therefore rejected. Furthermore, the Court of Appeal stated that recital 19 in the preamble of the Dublin Regulation, indeed, refers to the right to an effective remedy “in respect of decisions regarding transfer” decisions. However, the Court argued that the decision by an authority in a member state to not agree to take over the responsibility for an asylum applicant, cannot be a decision regarding a transfer since no transfer decision has been made.

The Court argued that a decision to not take over the responsibility of an asylum applicant primarily affects the states involved. It does not directly affect the individual in such a way that to deny a transfer could be considered a violation of his/her fundamental rights and freedoms under Union law. The Court of Appeal dismissed the appeal since SM had no right to appeal the Swedish Migration Agency's decision on the basis of Article 47 of the EU Charter. The Migration Court of Appeal does not at all consider the question of SM´s right to family reunification. The Charter is not mentioned in the Court’s argumentation and the case solely focuses on whether SM had the right to appeal or not.