In the case of NS v UK (C-411/10) (see here for FM’s earlier alerter post), the Court of Justice of the European Union (CJEU) held that the transfer of an asylum-seeker from one EU Member State to another under the Dublin II regulation is not permitted where a failing asylum system in the receiving State creates a risk of inhuman or degrading treatment. The case is one of a series of cases brought in relation to the difficulties faced by asylum-seekers in the EU.

The applicant was an Afghan asylum-seeker residing in Britain who first entered the EU through Greece.  He resisted his transfer to Greece under the Dublin II regulation on the basis that the asylum situation there (described by UNHCR as a ‘humanitarian crisis’) would lead to a breach of his fundamental rights.  The Dublin II regulation determines the Member State responsible for examining an asylum claim within the EU.  It provides that, under normal circumstances, an asylum-seeker’s application should be determined by the first Member State in which they arrive and includes a mechanism for removal to that country. The Dublin system is based upon ‘mutual trust’, an assumption that all Member States respect and implement EU law, including the protection of fundamental rights.

The CJEU’s judgment emphasises that mutual trust is essential to the Common European Asylum System but recognises that mutual trust cannot be blind trust where breaches of fundamental rights are concerned. The Court therefore held that a Member State is prohibited from transferring an asylum-seeker to another Member State under the Dublin II regulation:

 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. [para.94]

In practice, this means that removal will be unlawful in very limited circumstances. Only a real risk of a breach of Article 4 of the Charter will be sufficient to meet the test.  It is clear that even serious breaches of EU Directives which lay down minimum standards for the reception and treatment of asylum-seekers will not amount to grounds for resisting transfer under Dublin II unless they also constitute a breach of Article 4.

The CJEU ruled out the use of a conclusive presumption that an asylum seeker’s fundamental rights will be respected upon return to another Member State.  However, Member States are not prevented from operating a rebuttable presumption.  It appears that the burden of rebutting the presumption lies on the asylum-seeker.  It is less clear just what evidence the asylum-seeker must present in order successfully to rebut it.

The applicant in this case was assisted by the judgment of the European Court of Human Rights (ECtHR) in MSS v Belgium and Greece which held: (1) that the failing asylum system in Greece posed a real risk of refoulement, (2) that living and detention conditions for asylum-seekers in Greece amounted to inhuman and degrading treatment and (3) that because the Belgian authorities knew or ought to have known these facts, they breached Article 3 of the European Convention on Human Rights (equivalent to Article 4 of the Charter) by returning the applicant to Greece.

The CJEU points out the sources of evidence considered by the ECtHR in MSS v Belgium and Greece enable Member States to assess compliance with fundamental rights.  The CJEU specifically refers to Commission reports evaluating the Dublin system that are indirectly addressed to Member States through their participation in the Council of the European Union.  It also refers to correspondence between UNHCR and the responsible Belgian minister.  The sources referred to by the CJEU serve to hilight the disparity in information and resources available to asylum-seekers by comparison with Member States.  This is the problem posed by a rebuttable presumption of compliance with fundamental rights, where the burden of rebutting that presumption is placed on the asylum-seeker.

The decision in NS v UK tightly limits the circumstances in which transfer under the Dublin II regulation can be resisted.  Nonetheless, the impact of this decision will be considerable given the large numbers of asylum-seekers that enter the EU through Greece.  There is also evidence to suggest that the strict test laid down by the court may also be met by the asylum stuation in other EU border countries such as Italy and Cyprus, almost certainly reopening the litigation over removals to those countries.

The court is clear-eyed about the difficulty of establishing harmonised standards for asylum across the EU.  This may be one reason why the bar for challenging removals is set so high, despite the potentially serious impact on asylum-seekers when harmonising measures relating to their reception and treatment are breached.  Ultimately, the credibility of the Dublin system and of the Common European Asylum System itself is contingent upon harmonised substantive and procedural standards for asylum.  In reality, that this is far from being achieved is a significant cause behind the secondary movement of asylum-seekers within the EU; precisely the issue the Dublin II regulation seeks to address.

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