Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.

The judgment is the latest in a series of cases which seek to address the problems facing asylum seekers entering Europe today. In September Advocate General Trstenjak handed down her Opinion and concluded that Mr Saeedi should not be returned to Greece. Her conclusion was bolstered by the decision of the European Court of Human Rights in MSS v Belgium and Greece that return to the latter state was a violation of the right to be free from inhuman or degrading treatment. It was an Opinion whose legal correctness nonetheless threatens political problems for the Member States and the European asylum system.

Judgment in NS

Following the Advocate General, the ECJ last week delivered a strong judgment that seeks to uphold the integrity of the common asylum system while also ensuring that asylum seekers’ rights are protected. The ECJ’s judgment is not blasé about the important of mutual trust to the effective operation of EU asylum law. A key paragraph of the judgment notes the profundity of the issue for EU co-operation in asylum and in home affairs in general:

“At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.” (para 84)

This passage places mutual confidence at the heart of the area of freedom, security and justice (and perhaps even the EU itself!) and so not every breach of the rules and regulations on asylum, or human rights, is to be understood as grounds for suspending the operation of the system. However, the Court concluded that whatever presumption there may be that Member States comply with the Geneva Conventions, the European Convention on Human Rights and the EU Charter of Fundamental Rights, that presumption could never be conclusive. Therefore an individual could rebut the presumption and demonstrate that transfer to a state, such as Greece, would involve the violation of human rights. Thus the ECJ concluded that a Member State could not transfer an individual

“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).

The Test in NS

This test gives expression to the Court’s strong conclusion that although the effectiveness of the EU asylum system is a key public policy goal that goal cannot come at the cost of the people the system is supposed to serve. Two questions remain: who bears the burden of proof if an applicant tries to rebut the presumption of compliance, and how do they do so? On the first question it would appear that the presumption of compliance means that it falls to the asylum seeker to show that there have been a failure to uphold his or her human rights. Such a burden of proof is largely in keeping with the practice of human rights law which requires the applicant to prove an interference with his rights and requires the state to prove that the interference was justifiable. However, the operation of a presumption does tilt the balance of the litigation slightly in favour of the state and thus makes it that much more difficult for the applicant.

The second question, on how to rebut the presumption, is more complex. There appear to be four aspects to the test as to whether transfer to a particular Member State should be suspended: (i) clear evidence of (ii) systemic deficiencies which (iii) amount to substantial grounds for believing that (iv) there is a real risk of violation of Article 4. It is unclear what amounts to clear evidence. In the present case there was an abundance of evidence and the ECJ made reference to NGO reports, a report of the European Commission and the judgment in MSS v Belgium and Greece. It is reasonable to suggest that the latter should be considered sufficient but not necessary. It would be a peculiar state of affairs if an asylum seeker was expected to undertake the arduous task of obtaining a judgment in Strasbourg before seeking justice in Luxembourg. Systemic deficiencies were easily proven in the present case but it may be difficult for the Court to decide where the line is to be drawn in the future.

The final two parts of the test, substantial grounds for belief of a real risk of violation of Article 4 of the Charter, can draw on existing human rights law on inhuman and degrading treatment and the development of jurisprudence in this field by the European Court of Human Rights may have application in EU law. The finding in MSS v Belgium and Greece that transfer to Greece would breach Article 3 ECHR (the equivalent provision in the ECHR to Article 4 of the Charter) allowed the ECJ to avoid the question of whether Article 18 of the Charter amounted to a free-standing right to asylum and whether breach of such a right should be grounds for transfer. Thus, an applicant is required to point to inhuman and degrading treatment, and not a lesser breach of human rights, to prevent transfer.

On the UK-Poland Protocol

The second aspect of the judgment, albeit one given short shrift, concerns the UK-Poland Protocol on the EU Charter of Fundamental Rights. A key question in the British litigation was whether that Member State has an effective opt-out from the Charter. The Court was clear that it does not. This conclusion is hardly surprising – as the Advocate General declared in her Opinion – the question is “easily answered”. Despite the rhetoric of various British politicians (including former Prime Minister Tony Blair) the Protocol simply does not read as an opt-out as it seeks to clarify the application of the EU Charter. The judgment in NS simply confirms that plain reading. The ECJ did deftly avoided any decision on the more controversial question of the social and economic rights contained in the Charter and their application in Britain. Those rights are likely to be the subject of future litigation and in that field the Protocol may be more pertinent.

This aspect of the decision may cause rancour amongst already-agitated British politicians who claim that ‘Europe’ interferes too much with national policy-making. The previous Government’s failure to escape the clutches of another rights charter can only add to the antipathy currently directed at the ECHR. This political opposition is fomented by media misunderstanding. A Daily Mail story on the ECHR saw a reference to the ‘meddling EU’ having to be amended to ‘meddling Europe’. Despite over-simplification in the public sphere the reality is that European human rights law is complex and is likely to remain that way for now. Indeed, much of the complexity is caused by the unhelpful political tactics that British and other governments tend to engage in. It was a political manoeuvre, not a legal argument, that led to a Protocol which is not an opt-out but a sop to British Euroscepticism. Drastic simplification of the law in this field could now only be achieved through a unification of European legal orders (i.e. the EU and Council of Europe) or through abandoning the very idea of a European human rights law – neither of which is desirable at present. Though the law remains fragmented gradual convergence (and thus simplification) of the law is possible (and even likely) if the debate were only conducted with more matter and less art.

Conclusion

The judgment in NS is not fatal to the European asylum system. There is a high bar to be cleared for any asylum seeker attempting to avoid transfer within the Union. At the same time, the very high proportion of asylum seekers that enter the EU through Greece means that a finding against that Member State alone is enough to cause something of a crisis in this field of EU law. One wonders where this leaves other states, such as Italy, which face serious problems complying with their obligations despite, or indeed because, it is a point of entry for many asylum seekers. On the EU Charter the judgment is both wiley and wise but its greatest significance may be in terms of the opprobrium it will provoke in the UK. As the well-worn proverb has it: interesting times lie ahead for human rights law.

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Written by Cian Murphy