In a judgment published on 26 July 2017, the Court of Justice ruled that the persons who crossed the border into Croatia as part of the mass refugee wave from Middle East did so irregularly under the meaning of the Dublin III Regulation.
The Court ruled in two cases: In 2016 a Syrian national and the members of two Afghan families crossed the border between Croatia and Serbia, even though they were not in possession of an appropriate visa. The Croatian authorities organised transport for those persons to the Croatia-Slovenia border with the aim of assisting them in moving on to other Member States in order to make an application for international protection there.
The Syrian national subsequently made such an application in Slovenia, whereas the members of the Afghan families did so in Austria. However, both Slovenia and Austria took the view that the applicants had entered Croatia unlawfully, according to the Dublin III Regulation which regulates the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
The persons concerned challenged the respective decisions of the Slovenian and Austrian authorities before the courts. Based on requests by both Austrian and Slovenian courts, the Court of Justice examined these two cases and issued a ruling which is now binding in similar cases before courts and tribunals of other Member States.
The Court ruled that their entry into Croatia was not regular under the Regulation and the fact that Croatia willingly allowed their admission onto its territory does not equate to visa granting, even if the admission is explained by exceptional circumstances characterized by a mass influx of displaced people into the EU.
EU Member States have an option under the Schengen Border Code to authorise non-EU nationals who do not fulfill entry conditions to travel to their territory on humanitarian grounds. However, the Court stressed that such authorisation is valid only for the territory of that Member State and not other Member States.
According to the Court, the Dublin III Regulation allocates responsibility for examining the application for international protection to the Member State whose territory the person first entered when entering EU territory, even if entry is authorized on humanitarian grounds. The Court also decided that the fact that the border crossing occurred during the arrival of an unusually large number of migrants seeking international protection is not decisive.
Greece had been exempt from that responsibility under the Dublin III Regulation from 2011 to March 2017 based on judgments by the European Court of Human Rights and the Court of Justice on grounds of systemic deficiencies in the Greek asylum system, inhumane conditions and human rights violations. During the wave, the majority of migrants went though Greece, Macedonia, Serbia, Croatia, Slovenia and Austria. Taking into account the exemption of Greece, Croatia is the first EU Member State on the Balkan Route with the responsibility of examining applications.
Based on this interpretation and the Court’s judgment, other EU Member States would have legal ground to return those irregular migrants that have not already had their application examined back to Croatia. The Court, however, stressed that other Member States may apply the “sovereignty clause” in the spirit of solidarity, which enables them to decide to examine applications for international protection lodged with them, even if they are not required to carry out such an examination.
What the judgment doesn’t take into account is the fact that the aforementioned countries along the route signed co-operation agreements in September 2015 aimed above all at streamlining the flow of migrants and preventing hold-ups after Germany suspended these provisions of the Dublin III Regulations for Syrian refugees in August 2015. At the time, other EU Member States proclaimed that they were willing to accept a certain number of refugees themselves.
The Balkan Route was an organised enterprise of several EU and non-EU nations, including Slovenia and Austria. Their respective governments allocated personnel, resources and means of transport in order to orderly and systematically carry refugees from Greece to the Austrian-German border. They set up reception centers and camps and allocated busses and trains to transported refugees over several months through at least six different countries.
Former Minister of the Interior Ranko Ostojić, who was responsible for managing the route in Croatia in 2015, stressed that Croatia was not a lone wolf and praised the way it handled the situation by saying “Croatia did not run away from responsibility at the time and I firmly believe that it will not do so now. (…) We introduced our own migrant registration system, which was subsequently recognised as efficient and introduced throughout the route, and it was confirmed that with this system Croatia significantly contributed to security on the route. The entire diplomatic assembly from all EU Member States visited our registration center and commended
Croatia.” He also added: “If Croatia facilitated unlawful migration, then so did the other countries on the route.”
In its printed edition, Jutarnji List notes that the Croatian Government failed to submit comments on these two proceedings before the Court of Justice, even though they are of the utmost importance to the country. The Court notified all of the EU Member States of the cases and invited them to submit their opinions. Opinions were submitted by Austria, Slovenia, Italy, Greece, Hungary, Great Britain and the European Commission, but not Croatia, despite being directly affected by the decision.
This judgment, however, does not guarantee the return of thousands or even hundreds of migrants back to Croatia. Firstly, it is likely that most Member States will apply the sovereignty clause and examine applications themselves in spirit of solidarity and as part of the EU quota for migrant admission.
Secondly, the Dublin III provision applies to the first EU Member State for which migrant entry can be proven. As stated above, Croatia applied a system of migrant registration and took fingerprints for the EU asylum fingerprint database EURODAC. The database assist with determining the Member State responsible for examining an asylum application made in the EU. Jutarnji reports that only a part of the data was actually sent to EURODAC despite regular registration. In most cases, these fingerprints are the only actual proof that a person entered EU territory through Croatia or another border EU country.
Furthermore, according to Jutarnji, Croatia has the largest percentage of rejected asylum applications – 65% in 2016. As we previously reported, Croatia’s Security and Intelligence Agency often provides opinions on the existence of security impediments to granting international protection for individual applicants. Since the beginning of the crisis, approximately 900 people were returned to Croatia from other Member States. If this number increases due to the ruling and Croatia continues to reject applications at present rate, a lot of the migrants will be faced with a devastating choice – to be returned to their often dangerous homelands or to use equally dangerous services of human smugglers in search for peace.