Case Comment: N.S v Secretary of State for the Home Department (C-411/10)

Joanna Buckley

Updated – This post has been updated, as the original was missing the final paragraphs.

…the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 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” (at para. 94).

So held the Court of Justice of the European Union (CJEU) on 21 December 2011 in the case of N.S v Secretary of State for the Home Department, concerning the operation of Council Regulation (EC) No 343/2003, better known as the “Dublin II” Regulation. The CJEU’s judgment clarified that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU Member States “observe the fundamental rights of the European Union” (at para. 105).

Background

Dublin II provides a mechanism for determining which EU Member State is responsible for examining and determining an application for asylum by a third-country national. The ‘responsible Member State’, pursuant to article 3(1) of the Regulation, is determined by various factors outlined in Chapter III including family, age and residence. The default position is that the country with which the application for asylum was first lodged will be responsible. Under Articles 17 and 18(7) of the Regulation, if a Member State believes that another is responsible for determining an asylum application, it can request that the asylum seeker is transferred to the ‘responsible state’.

Dublin II is one of the legal instruments adopted as part of the Common European Asylum System (CEAS), along with the Procedure (2005/85/EC), Reception (2003/9/EC) and Qualification (2004/83/EC) Directives and the “Eurodac” Regulation (Council Regulation (EC) No 2725/2000). Following the Lisbon Treaty, the goal of adopting a common EU policy on asylum and subsidiary protection was included at Article 78 of the Treaty on the Functioning of the European Union (TFEU). The right to asylum is further guaranteed by Article 18 of the EU Charter of Fundamental Rights (CFR). Both provisions provide that the right to asylum is to be assured with due respect for the Geneva Convention and the 1967 Protocol.

As emphasised by the CJEU, the CEAS is based upon mutual trust and confidence but also the “principle of solidarity and fair sharing of responsibility between the Member States.” The problem, as highlighted by this case, is that 90% of asylum seekers enter the EU through Greece and there are serious concerns about the deficiencies of the Greek asylum system. Proceedings drew attention to the apparent low proportion of asylum applications granted, inadequate judicial remedies and conditions for reception.

Facts

N.S is an Afghan national who claimed asylum in the UK, after travelling through other EU Member States, including Greece. N.S claimed that he was arrested in Greece, but did not make an asylum application. Following his release he was expelled to Turkey where he was again detained and held in appalling conditions for two months. He eventually travelled to the UK, where he lodged an asylum application on 12 January 2009.

The Secretary of State requested Greece to take charge of the asylum application, pursuant to Article 17 of Dublin II. N.S was subsequently informed that he would be removed to Greece on 6 August 2009. On 31 July 2009, N.S requested the Secretary of State to exercise his discretion under Article 3(2) of Dublin II to accept responsibility for his asylum application on the ground that “there was a risk that his fundamental rights under European Union law, the ECHR and/or the Geneva Convention would be breached if he was returned to Greece” (at para. 40).

Following permission for judicial review and an appeal to the Court of Appeal, proceedings in the UK were stayed for a preliminary ruling to the CJEU. The preliminary reference comprised of seven separate questions but, as summarised in the CJEU press release, revolved around two main issues:

  1. Whether the duty of a Member State to observe EU fundamental rights is discharged when an asylum seeker is transferred to the Member State responsible, regardless of the situation in the Member State;
  2. Whether a Member State is obliged to exercise its discretion under Article 3(2) to take responsibility for an asylum claim if transfer to the responsible state would expose the asylum seeker to a risk that his fundamental rights would be violated.

Judgment

The proceedings in N.S were joined with the case of M.E and Others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (C-493/10) concerning the proposed transfer of five asylum seekers to Greece from the Republic of Ireland.

The CJEU started from the premise that a decision by an EU Member State on the basis of Article 3(2) of the Regulation falls within the scope of EU law for the purposes of Article 6 of the Treaty on European Union (TEU) and/or Article 51 of the CFR.

Arguing that the CEAS was based on the presumption of compliance by EU Member States with EU law and fundamental rights, the Court held that “it would not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker”. By contrast, if there are “substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants…resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter…the transfer would be incompatible with that provision” (at para. 84 and 86. Emphasis added).

Following similar reasoning the CJEU held that there was a “rebuttable presumption” that asylum seekers will be treated in a way that complies with fundamental rights in all EU member states but that this presumption was not conclusive. It is unclear where the burden lies in rebutting this presumption. The test outlined by the court is slightly counter intuitive and requires that a Member State “cannot be unaware” of systemic deficiencies. The Court suggests that such awareness can be garnered from the reports of international organisations, the United Nations High Commissioner for Refugees (UNHCR) and the European Commission, which would suggest that the requisite knowledge is easily obtained.

If an asylum seeker cannot be transferred, the Member State should consider whether any other State is ‘responsible’, taking into account the provisions of Chapter III. Ultimately, the Member State should take responsibility for determining the asylum application itself under Article 3(2).

Finally, the CJEU confirmed that the CFR “reaffirms the rights, freedoms and principles recognised in the Union”. Protocol 30 on the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom made no difference to the findings of the Court. (For more on the impact of Protocol 30 see here).

Comment

It is difficult to imagine how the CJEU could have reached a different conclusion given the earlier Opinion of the Advocate General and recent jurisprudence from Strasbourg. In September 2011, Advocate General Trstenjak gave an Opinion which is broadly similar to the recent judgment (for a useful summary of the Opinion and discussion of EU Asylum and Refugee Status Law see a paper by Raza Husain QC here). The Advocate General suggested a slightly broader formulation than that used by the Court, notably not restricting the violation of fundamental rights to Article 4 of the CFR (At para 116). The Court held that Articles 1 (human dignity), 18 (right to asylum) and 47 (right to an effective remedy) of the CFR did not alter the findings on Article 4 of the CFR, leaving it unclear whether breaches of fundamental rights other than contained in Article 4 were enough to prevent transfer.

In January 2011, the European Court of Human Rights (ECtHR) reached a very similar decision in M.S.S v Belgium and Greece (Application no. 30696/09), in which Belgium returned an Afghan asylum seeker to Greece under the provisions of Dublin II. The ECtHR held that both Belgium and Greece had violated article 3 of the ECHR (and that Greece had violated article 13 of the ECHR). That the CJEU makes reference to the Strasbourg judgment but does not draw directly upon its reasoning, upon which the Advocate General placed more reliance, provides an interesting insight into the relationship between the two courts (for a discussion of the relationship between the Strasbourg and Luxembourg courts see a post by Aidan O’Neill QC here).

Disappointingly the CJEU somewhat opted out of answering the fifth question referred, which is whether the protection afforded to an individual by the general principles of EU law and the rights set out in Articles 1, 18 and 47 is wider than Article 3 of the ECHR.

The judgment did confirm that Member States are responsible for implementing the provisions of the EU asylum system to suitable standards and that a failure to do so may bring them into conflict with their international legal obligations. This finding is of particular relevance to the UK government, which has signaled its intention to opt-out of the recast Asylum Directives (see a discussion on this issue here). The question remains what would constitute the kind of “systemic flaw” required to convert a breach of secondary legislation to a breach of fundamental rights.

Undoubtedly there will be future wrangling over the definition of “systemic flaws” and what “cannot be unaware” actually means. What is made clear is that Member States cannot rely on blindly following the provisions of the EU asylum system as a defence to actions which put at risk or violate the fundamental rights of individuals seeking asylum or subsidiary protection.

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