ECJ rules on asylum-seekers and Greece; UN guidance for asylum systems; Irish roadmap for asylum launched

ECJ ruling

Readers of the Bulletin may remember that earlier in 2011, the European Court of Human Rights found Belgium in breach of Article 3 of the European Convention on Human Rights (right not to be subjected to inhuman and degrading treatment and torture). This was because they exposed asylum-seekers to a "real risk" of inhuman and degrading treatment in returning them to Greece, because of the detention and living conditions there.

Readers may also remember that the European Court of Justice was to consider two joined cases (one from Ireland and the other from the UK) relating to member states' obligations towards asylum-seekers, under the framework of EU law. Advocate General Trstjenjak (the AG) has delivered opinions in both matters. The European Court of Justice will deliver final judgments. The ECJ tends to follow AG opinions.

In NS (the English reference), the AG began by stating that a significant challenge for the EU asylum system was to ensure a "fair, but also effective distribution of the burden". She noted that EU legislation did not provide for the situation where the number of asylum applications exceeded the capacity of member states such as Greece.

In view of the pressure on the Greek asylum system caused by overloading, she found it could not be ruled out that asylum-seekers transferred there would experience treatment incompatible with the Charter of Fundamental Rights (the Charter), the Geneva Convention and the European Convention on Human Rights (the ECHR). She made significant findings, including that:

• Where a member state takes a decision whether to examine a claim for asylum, the Charter applies;
• A member state must not expose an asylum-seeker to a serious risk of violation of fundamental rights under the Charter and in such cases must examine the asylum application itself;
• Whilst there is a rebuttable presumption that the first member state will observe the asylum-seeker's fundamental rights, asylum-seekers must be given a procedural opportunity to rebut that presumption. A national law which proceeds from a conclusive - and not rebuttable - presumption contravenes the Charter; and
• Protection guaranteed under the Charter in areas of overlap with the ECHR must be no less than that provided under the ECHR.

In ME (the Irish reference), the AG drew the same conclusions, spelling out that:

• A member state which wishes to transfer an asylum-seeker to the member state which is primarily responsible must assess whether there is a serious risk of violation of the asylum-seeker's rights.

Click here to view a press release by the AIRE Centre, which made a third-party intervention and welcomed the "opinion's vindication of the prime importance that must be given to the observance of fundamental human rights".

Click here and here to view relevant pieces by the Human Rights in Ireland blog.

Click here to view a piece by the UK Human Rights Blog.

UN Guidance

Meanwhile the UN High Commissioner for Refugees and the EU have urged member states to prioritise the quality of asylum procedures. The UNHCR has developed a checklist for asylum-seeker interviews and a manual on the asylum process and peer-training for decision-makers. The UNHCR noted that "asylum quality can make the difference between life and death for people who seek protection in Europe". Click here to view more.

Irish asylum roadmap

Finally, the Irish Refugee Council has launched a roadmap for reform of the Irish asylum system. It recommends a single protection system with a new appeals body. It calls for investment in legal assistance and representation at the initial decision-making, to ensure that all the relevant information is before the decision-maker, thereby reducing the cost of appeals.

Click here to view the IRC press release and here to view the report.