The European Court of Human Rights has issued two judgments relating to the transfer of asylum applicants to other EU Member States, under the Dublin Regulation. The Grand Chamber found that Switzerland violated its obligations under Article 3 (prohibition on cruel, inhuman or degrading treatment), when it returned a family to in adequate reception conditions in Italy. A separate Chamber judgment found that both Italy and Greece failed to meet their obligations, finding violations under Articles 3, 13 (right to an effective remedy) and Article 4, Protocol No. 4 (prohibition on collective expulsion of aliens), for indiscriminate collective expulsions conducted at Italian ports.
The Dublin Regulation creates a system to determine which EU State is responsible for assessing an asylum application. Member States may transfer asylum applicants to the country which it deems responsible for the application. The ECHR is separate from the European Union; however operations under the Dublin system must be compatible with the fundamental rights protected by the ECHR.
On November 4, the Grand Chamber issued its judgment for Tarakhel v Switzerland (application no. 29217/12), finding a violation of Article 3 where the Swiss authorities were to transfer applicants back to Italy, without obtaining individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. In light of this, the Court held that the suspension of a Dublin transfer to Italy could be justified. However, the Court found that systemic deficiencies in the Italian system couldn’t justify a general suspension of Dublin transfers to Italy.
On 21 October 2014, the Chamber issued a ruling in Sharifi and others v Italy and Greece, that indiscriminate collective expulsion of Afghan migrants from Italy, to Greece, and further denial of access to the asylum procedure in Greece, violated the European Convention on Human Rights.
The Court found that Greece had violated Article 13 combined with Article 3 because of the lack of access to the asylum procedure for the applicants and the risk of deportation to Afghanistan, where they were likely to be subjected to ill-treatment. The Court found that Italy had violated the prohibition on collective expulsion of aliens and Article 3 obligations as the Italian authorities, by returning the applicants to Greece, had exposed them to the risks arising from the shortcomings in that country’s asylum procedure. The Court found a violation of article 13, combined with both of these Convention rights, on account of the lack of access to the asylum procedures or to any other remedy at the Italian port.
Of particular concern to the Court was the practice of automatic return, implemented by the Italian border authorities at their ports. The Court reiterated that the Dublin system must be applied in a manner compatible with the Convention, thus no collective or indiscriminate returns could be justified by the system. The State carrying out the transfer must ensure that the destination country offers sufficient guarantees in the application of its asylum policy to prevent the asylum applicant being removed to his country of origin without an assessment of the risks faced.
The European Commission has issued a statement in response to Tarakhel v Switzerland and the Court's rulings on Dublin regulations. "The Commission will carefully assess the ECtHR judgment as well as its possible implications for the functioning of the asylum system in Italy and the EU." However, ultimate responsibility will lie with the Member States that transfers under the Dublin system are compatible with their obligations under the ECHR.
Click here to read an ECHR factsheet on the ‘Dublin’ cases.