The European Court of Justice (ECJ) ruled Wednesday that Austria and Slovenia were entitled to deport two Afghan families and a Syrian who applied for asylum to Croatia, the first EU nation they entered.
The court's decision opens up the possibility of a deportation of hundreds of asylum seekers who arrived in Europe in 2015 and early 2016.
An EU law known as the Dublin regulation typically requires asylum seekers to apply in the first European country they enter. But in 2015, German Chancellor Angela Merkel suspended the regulation for Syrian refugees in the face of the migrant crisis.
Hundreds of thousands of people followed the so-called western Balkan route -- an overland path taking migrants from Turkey through Greece and other southern European nations toward more prosperous northern "destination countries" such as Germany -- before it was closed off in 2016
In 2016, Afghan sisters Khadija and Zainab Jafari, with their respective families, and the Syrian national crossed the border between Croatia and Serbia even though they did not have appropriate visas. They were transported onward to the Croatia-Slovenia border by Croatian authorities with the aim of helping them to seek asylum in other EU states, the court said.
The Syrian national subsequently made an asylum application in Slovenia, while the two Afghan families did so in Austria.
Austria and Slovenia argued that it was up to Croatia to examine the applications of the Afghan families and the Syrian national since they had entered its territory unlawfully first.
But the applicants challenged their decision before the courts, contending that their entry to Croatia should not be considered irregular and that the Austrian and Slovenian authorities should consider their requests for asylum.
Court: Responsibility remains with state of entry
The ECJ on Wednesday supported the argument of Austria and Slovenia over that of the Syrian and Afghan nationals.
It ruled that their crossing of the Croatian border had to be considered irregular under the Dublin rule. While one EU member state can permit the entry of an asylum seeker on humanitarian grounds, this is "not tantamount to the issuing of a visa even if the admission is explained by exceptional circumstances characterised by a mass influx of displaced people into the EU," a court statement said.
Under the Dublin III Regulation, the first country of entry retains responsibility for considering the non-EU citizen's application for asylum even if it allows the person to transit to another member state under exceptional circumstances, it said.
"A Member State which has decided on humanitarian grounds to authorise the entry on its territory of a non-EU national who does not have a visa and is not entitled to waiver of a visa cannot be absolved of that responsibility," the statement said.
The court added, however, that an asylum applicant must not be transferred to the member state responsible "if, following the arrival of an unusually large number of non-EU nationals seeking international protection, there is a genuine risk that the person concerned may suffer inhuman or degrading treatment if transferred."
Lawyer urges dismissal of Hungary, Slovakia case
Separately, the advocate general for the ECJ has recommended that a case brought by Hungary and Slovakia against the mandatory relocation of asylum seekers be dismissed, according to a press release Wednesday.
The case was brought against the Council of the European Union's decision to assist Italy and Greece in tackling the inflow of migrants in 2015. That decision meant EU member states had to take in 120,000 people in clear need of international protection over two years.
"That mechanism is actually a proportionate means of enabling Greece and Italy to deal with the impact of the 2015 migration crisis," Advocate General Yves Bot's statement read.
The advocate general's opinion is not binding on the Court of Justice; a legal judgment will be given at a later date.