With the recent arrival in Europe of persons from various North Africa countries due to the uprisings, there has been increased focus on the issue of asylum and refuge in Europe. This did lead to some tension between France and Italy, and  broader questions on  free movement rights and borders in the European Union (EU) as a whole. See Cian’s previous post on this issue here. Yesterday’s opinion by Advocate General Trstenjak re-emphasised that the right to seek asylum is a fundamental right, not only under international law, but also under EU law.

When an individual enters the EU for the purpose of claiming asylum , s/he is required to claim in the first EU country that s/he seeks enters. Under the Dublin II Regulation, if s/he subsequently travels onwards to another EU country, s/he can be returned to the first country of entry, unless the subsequent country agrees to examine the protection claim. However, without any burden sharing mechanism, this places great pressure on countries like Greece who are expected to determine individual asylum and protection claims in line with EU minimum legal standards.  The question that arises, and was considered in the opinion of AG Trstenjak in N.S , does a second member state have an obligation to refuse return to the first country of entry, an asylum seeker who could suffer violations of the EU Charter of Fundamental Rights (EUCFR) and other international treaties (in particular the ECHR and Refugee Convention). In answering this AG Trstenjak stated:

  1. The second member state must not return an asylum seeker to the member state of first entry where there is a “serious risk” of a breach of fundamental human rights norms under the EUCFR, the ECHR or the Refugee Convention. Member states can put in place a rebuttable presumption that other EU member states do not breach fundamental rights norms. However, there also needs to be a system for asylum seekers to challenge this rebuttable presumption. From the opinion, there are two instances that can be identified when the second member state must not return the asylum seeker to the member state of first entry. Firstly, where the procedures in place in a member state places the asylum seeker at risk of direct or indirect return to their country of origin. As well as violating the ECHR and Refugee Convention, it would also violate the right to dignity, asylum and effective remedies under the EUCFR. Secondly, in line with the decision in M.S.S. v Belgium and Greece of the European Court of Human Rights, where the social rights/reception conditions of asylum seekers in the member state of first entry are so inadequate that it constitutes inhuman or degrading treatment, the second member state must not return an asylum seeker to the member state of first entry.
  2. Individual breaches of asylum seekers rights under the Procedures Directive, Qualification Directive or Reception Conditions Directive, where there is no breach of fundamental rights norms, the second member state can send the asylum seeker back to the member state of first entry. If this was not the case,AG Trstenjak argued, that the Dublin II system would be unworkable.  There was no consideration by AG Trstenjak of what precise rights in the above directives could be classified as ‘fundamental’. It seems that even a preponderance of violations, once they do not violate fundamental rights norms, will not prevent a second member state from returning an asylum seeker to the member state of first entry. This raises fundamental questions regarding the rule of law in the EU. What precisely is the point of these directives, which set down minimum standards only, if states can simply ignore their obligations. This also raises questions regarding the right to an effective remedy for breaches of these directives for individual asylum seekers.
  3. AG Trstenjak stated that the UK (and Poland) have obligations under the EUCFR. Protocol No. 30 simply clarified certain aspects of the application of the EUCFR in relation to the laws and practices of the UK. Article 1(1) of the Protocol  simply re-emphasises that the EUCFR creates no new competencies for the EU. However, AG Trstenjak recognises that different considerations may be at play in relation to the Solidarity rights protected under the EUCFR given that Article 1(2) of Protocol No. 30 states explicitly that the UK does not recognise the Solidarity provisions of the EUCFR giving rise to justiciable rights. However, no issue in relation to Solidarity rights arose in this case. Cian has previously blogged on the UK and the EUCFR here as well as the potential the EUCFR can offer in achieving rights claims here.

As with all AG opinions, the Court of Justice of the European Union is free to accept or reject this opinion in whole or in part.  In both Ireland and the UK, transfers to Greece are currently suspended, pending the judgment of the Court of Justice of the European Union in this case. While the AGs opinion has emphasised that member states must protect the fundamental rights norms of asylum seekers, it is somewhat concerning that there is a recognition that EU asylum law, which adopts minimum standards only, can be set aside so easily by member states. More emphasise could have been placed on the need for member states to respect all of their obligations under EU asylum law. In the absence of a framework for burden sharing between member states, it is likely that this issue will be further considered in the future.

Update: 27/09/2011:  AG Trstenjak has also delivered her opinion on an Irish case, M.E. v Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform. The implications for asylum transfers from Ireland to Greece are discussed here. Cian Murphy has an opinion piece on this case in The Guardian and this can be accessed here.

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Written by Liam Thornton

Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. His particular research interests are on issues relating to the welfare state, human rights, socio-economic rights, Governmentality, immigration law and EU law. You can contact him at liam.thornton[at]ucd.ie or (+353) 1 716 4129.