Shortly before a UK Court of Appeal hearing in which the applicant sought to rely on rights included in the EU Charter of Fundamental Rights, the Home Secretary accepted that the Charter could be directly relied upon in the UK. It had previously been held that the "opt-out" of the UK to the Charter meant that it could not be relied upon directly in the State. In spite of opposition to the move by the Home Secretary, the Master of Rolls has made a reference to the European Court of Justice (ECJ) recording the Home Secretary's concession. The remainder of the case which relates to the removal of a third country national to Greece who had applied for asylum in the UK, has been stayed pending the reference. The Equality and Human Rights Commission, which intervened in the case, stated that the concession should be made known so that the previous judgement would not stand as a precedent. Interventions were also made by AIRE, Amnesty International and UNHCR.
The reference to the ECJ relates to the EU law aspects of the case, specifically to the scope of the rights to human dignity, asylum and a fair hearing as well as the extent to which they can be relied upon to challenge transfers of people between EU Member States under the Dublin Regulation. It will also look at the scope of the discretion under Article 3(2) of the Charter, which allows member states to take responsibility for an asylum claim though it would not normally come under their jurisdiction under the Dublin criteria; that is, whether the UK has the responsibility for the claim where Greece does not comply with EU fundamental rights and/or minimum standards in the EU asylum directives and whether the provision is compatible with EU law.
The European Court of Human Rights is due to hear a case, MSS v. Belgium and Greece (no. 30696/09), relating to returns to Greece under the Dublin criteria on 1 September 2010 though it may delay this until the ECJ has made a preliminary ruling on the EU issues.
The EU Charter is based on the fundamental rights and freedoms recognised by the European Convention on Human Rights, the constitutional traditions of the EU Member States, the Council of Europe's Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties.
Click here to view the High Court decision in the case of R (on the application of Saeedi) v. Secretary of State for the Home Department, and Amnesty International and AIRE Centre and UNHCR (Interveners) [2010] EWHC 705 (Admin).