The following is a translation of an article written by Ákos Péter Mernyei, a researcher at the Eötvös József Research Centre of the Europe Strategy Institute of the University of Public Service, originally published on the Five Minutes Europe blog of Ludovika.hu.

Imagine a 20-year-old Syrian citizen who applies for refugee status in Greece, and when he gets it, he travels to Hungary, claiming that the Greeks have treated him badly and he would rather stay in Hungary as a refugee. However, when the Hungarian authorities want to examine whether he is entitled to refugee status or not, he argues that Hungary cannot do so because Greece has already granted him this status, a decision which must be accepted by Hungary as well…

In fact, one does not even need to imagine the aforementioned situation. The case described has happened, though not in Hungary but in Germany, and it is now up to the European Court of Justice (ECJ) to decide what action the German authorities should take.

The European Union’s migration and asylum policy is an area that is the focus of major political debates on a daily basis. However, it is now also governed by extensive legislation, and questions of a political nature that go beyond individual cases regularly arise before the law enforcement bodies such as the police and administrative authorities in the Member States, as well as the courts. This is particularly the case when national authorities seek guidance in individual cases from the ECJ, which has the binding power to fundamentally determine or change legislative practice—often leading to new political debates or new layers of political debate.

In the areas pertaining to migration and asylum, this legal development is a regular process, partly due to the high number of cases. In a recent case on this subject, Advocate General Laila Medina submitted her formal opinion, which, together with the state of affairs, is presented below.

The facts of the case are that QY, a Syrian national, was granted asylum by Greece in 2018. QY was 19 years old at the time. QY, however, did not stay in Greece but travelled on to Germany, where he again applied to the authorities for asylum, requesting that Germany also grant him refugee status, already under German law. As the basis for his application, he claimed that conditions in Greece were inhumane.

The German administrative authority concluded that QY could not be returned to Greece because of the serious risk of inhuman or degrading treatment (see Article 4 of the Charter). However, the Bundesamt, that is, the German Federal Office for Migration and Refugees, did not grant the applicant asylum under German law, but only a so-called ‘subsidiary protection’. This status, although similar in principle to refugee status, is weaker in several respects: for example, beneficiaries of subsidiary protection have no right to vote and, more importantly, are not entitled to preferential naturalization. Consequently, the legal status granted to a person by the authorities has serious legal implications for the individual and, it should be added, for society as well.

QY appealed against the authorities’ decision to the German administrative courts, which dismissed his claim and even stated that, in their opinion,

QY would not be at risk of persecution in Syria and therefore would not be entitled to refugee status(!).

In his appeal against the court’s decision, QY argued that under EU law, the German authorities are not in a position to assess whether he is entitled to refugee status on the merits or not, as this issue has already been examined by the Greek authorities, which decided to grant him the status.

We have a legally interesting and substantially very dangerous situation here: a 19-year-old Syrian citizen claims protection from Greece on the grounds of persecution, which Greece grants, and then goes on to Germany, where he claims he cannot be sent back to Greece because of the inhuman treatment he has suffered there, nor to Syria as the Greek authorities have granted him refugee status. Instead, he would rather stay in Germany, even though the German authorities consider that his refugee status is not justified because the conditions are not met. So, what is the legal situation in this case? Is there really no other way for a Member State in a situation like this than to recognize such a person as a refugee without careful consideration and against its better judgement?

Within this context, the legal question—however strange it may sound—is whether European law gives Germany the right to decide on the refugee status of QY or whether it is bound by the decision of another state, in this case, Greece.

Rough waters ahead: if Greece’s decision were to be accepted, it would open the door to all other EU Member States, including Germany, but also Hungary, for all those recognized as refugees by the Greek authorities… So where do we stand with sovereignty?

The German Court of Appeal to the ECJ, while noting that no decision has yet been made requiring Germany to accept another Member State’s recognition as a refugee as mandatory, is still hesitant. At the heart of its uncertainty is the fact that, under EU law, only the Member State responsible for examining the substance of an asylum application under the so-called Dublin III Regulation is required to do so. Consequently, the question arises as to what other Member States should or may do with such an application, especially if they otherwise consider that the applicant cannot be returned to the Member State that granted the refugee status…

Advocate General Medina is of the opinion that EU law does not impose an obligation on the Member State which subsequently examines the application to automatically grant refugee status on the sole basis that another Member State has already done so. On the contrary: in her view,

the second Member State must carry out an independent, autonomous examination of the issue.

The Advocate General considers, however, that the examination by the second Member State must adequately take into account the fact that another Member State has already recognized the applicant as a refugee.

Nevertheless, it is clear that, however adequately the decision of the first Member State is taken into account by the second Member State, it is, according to the rules of doctrine, factual evidence and not a decision that is legally binding. It is trivial that when two states have to decide independently on a question, a situation such as the one in the present case is inevitable—that is, they will reach different conclusions as to whether or not the applicant is entitled to refugee protection…

It must be seen that

the right and the possibility of an independent assessment is (or should be) an important part of Member States’ sovereignty.

It is curious to see whether the ECJ will decide the issue in the same way as the Advocate General, but it may also be worth considering for the future whether who can exercise discretion should be enshrined in legislation, too, to avoid further uncertainties.

Click here to read the original article.