Monday 26 September 2011

M.S.S. Judgment Echoes in Luxemburg

At the beginning of this year, the European Court of Human Rights issued its important M.S.S. v. Belgium and Greece judgment, on the asylum seekers transfer system within the European Union (see my earlier report here). In summary, the Court held that asylum conditions in Greece were so bad that not only Greece had violated the ECHR, but also Belgium by transferring an asylum seeker back to Greece. It seemed a matter of time until this would influence EU law and/or practice. Last week, one of the first indications in this respect surfaced: Advocate General Trstenjak of the Court of Justice of the European Union gave an opinion in preliminary ruling procedures in joined cases from the United Kingdom and Ireland. The opinion advices the Court of Justice to apply reasoning in its later decision in these cases which very much echo the M.S.S. case. Importantly, the opinion in effect argues for similar (although not exactly the same) obligations in this regard flowing from the European Union's Charter on Fundamental Rights. The A-G explicitly refers to and uses the M.S.S. judgment in her arguments. The A-G concludes that:

A Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.
And that:

The obligation to interpret Regulation No 343/2003 [the asylum regulation at stake, A.B.] in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under European Union law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application.

Thus, before sending back, a determination should be made whether a serious risk of violation of fundamental rights exists, starting from the rebuttable presumption that such rights will be guaranteed. Thus, in principle mutual trust still exists, unless there are indications otherwise, but the trust is not a blindfold anymore. States are not required to actively establish in advance whether the asylum's seeker's rigths are fully guaranteed, but they are under an obligation to take into account (and act accordingly) indications of serious risks of violations.

Let us see whether the Court of Justice of the European Union will follow this opinion!

The full press release can be found here.

Hat tip to FRA!