La tolerancia del paso por parte de algunos Estados ante la afluencia masiva de refugiados: ¿cruce irregular de frontera? Sentencias dictadas por la Gran Sala del TJUE en los asuntos C-490/16 y C-646/16, de 26 de julio de 2017

Abstract

In the commented judgments, the Grand Chamber of the CJEU addresses the legal qualification required by the situation which derives from the entry tolerance by States such as Croatia or Slovenia in contexts of massive refugee influx. Obviously, the CJEU concludes that this tolerance does not amount to the granting of a visa, but, much less noticeably and against what the Advocate General upholds, it states that it is an irregular border crossing in the sense of Article 13.1 of the Dublin III Regulation, instead of being an authorization of passage for humanitarian reasons or an authorization resulting from compliance with international obligations. Delving into the situation, the CJEU recognizes the right to appeal the decision which involves the return to the State determined as responsible for examining the request for international protection, as well as the effects of the appeal on the count of the said terms in the aforementioned article and in article 29.2 of the same Regulation