The Court of Justice of the European Union has today handed down judgment in the case of C-163/17 Jawo. The court held that asylum seekers cannot be sent back even to a fellow EU member state if they are at substantial risk of inhuman or degrading treatment, but set the bar high for such an argument.

This case was conjoined with multiple other cases given the importance of the points of law decided upon. In addition to the court’s judgment, there is a lengthy press summary.

High threshold for human rights challenge to Dublin transfer

The judgment concerned the Dublin III Regulation. This is a piece of EU legislation which basically stops “asylum shopping”, the principle being that a person should claim asylum in the first safe country they reach. The main questions about which the German High Court requested clarification was:

1. Whether the EU Charter of Fundamental Rights stops a person being transferred under the Dublin regulation if they would suffer “a substantial risk of inhuman or degrading treatment because of the living conditions” in the other Member State?; and
2. What does absconding mean under the regulation?

The background to the first question was a report by the Swiss Refugee Council which said that asylum seekers in Italy were at risk of becoming homeless and destitute and that the Italian social welfare system was inadequate.

The Court of Justice took quite a tough stance on the first question, saying that as a starting point, the Common European Asylum System meant that there was a principle of mutual trust between EU member states. It should therefore be presumed that a member state’s treatment of an asylum seeker was compliant with the European Convention on Human Rights.

The judges did add a caveat that if a member state experiences “major operational problems”, there may then be a risk that asylum seekers are dealt with in a way which would breach their human rights, particularly Article 3. So where there was evidence that the person’s Article 3 rights would be breached, “all the circumstances of the case” need to be looked at (that phrase lawyers love!).

But the court found that a breach of a person’s Article 3 rights would only be made out when where they reached “a particularly high level of severity” due to “the indifference of the authorities“. The court said that the person must be:

in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity (see, to that effect, ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609, paragraphs 252 to 263).

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It made no difference that a member state’s social welfare system may be less favourable in one country compared to the other.

The Upper Tribunal here in the UK has also held recently that transfers to Italy can give rise to an Article 3 breach, although similarly there were very tight restrictions drawn on when this might occur in practice.

Define “absconding”

The second question is also important. The Dublin regulation itself does not define what “absconding” means. The applicant argued he was visiting a friend in a different city at the exact time he was due to be removed and no-one had told him he needed to tell the German authorities about the trip!

The Court of Justice said that there was no need for the authorities to prove that a person “actually had the intention of evading the reach of those authorities in order to prevent his transfer” in order to label them an absconder.

It concluded that if the person was not present at the specified place at the specified time and had not notified the authorities of his absence, that was enough to presume that a person had absconded:

where the transfer of the person concerned cannot be carried out due to the fact that he has left the accommodation allocated to him, without informing the competent national authorities of his absence, those authorities are entitled to assume that that person had the intention of evading their reach for the purpose of preventing his transfer, provided, however, that that person had been duly informed of his obligations in that regard.

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The court did say that a person could produce evidence at a later point to show valid reasons about why they didn’t surrender themselves.

As I’ve noted before, there does seem to be a trend in the Court of Justice that other member states end up litigating matters which seem to be well settled in the UK. The Home Office’s Dublin III policy makes it clear that:

If removal is to one of the States listed at Part 2, those States are considered to be ones that would not remove a person in contravention of the Refugee Convention or the European Convention on Human Rights and where a person would not be at risk of persecution. Where Part 2 applies any other human rights challenge to removal will be certified as ‘clearly unfounded’ unless the Secretary of State for the Home Department is satisfied that the claim is not (clearly unfounded). Such challenges could, for example, be based on Article 3 ECHR (the person claims that reception conditions in the country concerned are such that he or she would face inhuman or degrading treatment there) or on Article 8 grounds (that removal from the UK would unlawfully interfere with his or her private or family life in the UK).

It is surprising that these principles needed to be reiterated by the Court of Justice, but it may be because the member states in question have a fundamentally flawed approach to these sorts of cases.

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