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).


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’.

Continue reading

All about Sovereignty? The UK and EU Asylum Directives

Joanna Buckley

On 24 November 2011, the Council of the European Union announced that it had approved amendments to the Qualification Directive, which outlines the standard to be used by EU member states for identifying people in need of international protection either as refugees or as beneficiaries of subsidiary protection. Given recent controversy over the state of UK border control – or alleged lack of it – it is perhaps an inopportune moment to ask whether the UK will opt-in to the amended directive. The answer may also seem pretty obvious. On 13 October the Immigration Minister, Damian Green, announced that the UK would not be exercising its opt-in to the amended proposals to recast, and therefore replace, two other pieces of EU asylum legislation – the Procedures Directive (‘recast PD’) and Reception Conditions Directives (‘recast RCD’). In rather stark terms, the Immigration Minister informed Parliament that: ‘’This Government does not support a common asylum system in Europe. That is why we have not opted in to these directives and will not opt in to any proposal which would weaken our border.”

A seminar at the British Institute of International and Comparative Law (‘BIICL’) held on the same day as the Council’s announcement highlighted why the UK government’s current position may not be as simple as Green suggests. Of course EU legislation on asylum is just one piece of EU immigration policy. So it is worth clarifying what exactly we’re talking about when discussing EU asylum procedures.

In 2010, the UK received 23,715 asylum applications. The UK was the fifth largest recipient of asylum applications in the EU, compared to 51,595 in France, 48,490 in Germany, 31,875 in Sweden and 26,130 in Belgium. 13.2% of the asylum applications received were from minors aged 13 or below.

Continue reading

Opt-in, opt-out, shake it all about: the future of the European Arrest Warrant

Joanna Buckley & Anita Davies

The High Court’s decision on 2 November that Julian Assange should be extradited to Sweden to face rape allegations has rekindled debate on the use and implementation of the European Arrest Warrant (“EAW)”. Critics of the system contend that EAWs do not include sufficient safeguards. Proponents argue that the EAWs are a necessary tool to fight cross-border crime.

UK extradition policy has undergone several reviews in the last year, highlighting divergent opinions on the future of the EAW. In September 2010, the government appointed an inquiry under Sir Scott Baker (“the Extradition Review”), which released its findings on 18 October 2011 (a useful summary can be found on the UK Human Rights Blog). The report concluded that, “apart from the problem of proportionality, we believe that the European arrest warrant scheme has worked reasonably well”. Prior to this, the Joint Human Rights Committee (“JHRC”) released a report on 22 June 2011. In contrast to the Extradition Review, the JHRC called for a future renegotiation of the 2002 Framework Decision on the EAW, given domestic effect by the Extradition Act 2003. A Westminster Hall debate on extradition is scheduled for 24 November.

These reviews highlight disagreement on key areas – whether there should be a requirement for prima facie evidence, the application of the principle of double criminality and the sufficiency of the human rights bar to extradition contained in ss21 and 87 of the Extradition Act 2003, amongst others. But they have also thrown up much larger issues of the theoretical underpinnings of the relationship between the EU and its member states (as previously discussed here on EUtopia).

At the heart of the EAW scheme is the principle of mutual recognition. Mutual recognition has been the cornerstone of European integration on criminal matters, put forward (perhaps ironically) by the UK during its presidency of the European Council in 1998. Supported theoretically by the architects of EU legislation, its implementation has been far more difficult.

Continue reading