The European Court of Justice has ruled, in essence, that asylum seekers may not be transferred to another Member State under the Dublin Regulations where they risk being subjected to inhuman treatment.
The joined cases of C-411/10 N.S. v Secretary of State for the Home Department and C-493/10 M.E. and Others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform concerned the application of the 'Dublin II Regulation' which contains the criteria for examining an asylum application that has been lodged within the European Union - specifically, to determine which member state is responsible for processing that application.
The former case N.S. concerns an Afghan national who arrived in the United Kingdom after coming from Greece where he was arrested in 2008. He was required to leave Greece within 30 days, but he did not lodge an asylum application.
He was then detained in Turkey in "appalling conditions." He escaped from detention and arrived in the United Kingdom where he applied for asylum. He was notified that he would be transferred to Greece under the 'Dublin II' Regulation. During the course of proceedings, he claimed that his fundamental rights would be breached if he were to be transferred back to Greece. It was pointed out by the national court that the rate of successful applications for asylum in Greece is extremely low and judicial remedies are often "inadequate."
The latter case concerns five persons from Afghanistan, Iran and Algeria respectively. They travelled through Greece where they were arrested for entering illegally and for not applying for asylum. On arriving in Ireland, they applied for asylum. They claimed that if returned to Greece, the procedures and conditions for asylum there are "inadequate."
The Court held that the essence of the Common European Asylum System was that fundamental rights are observed by the States concerned. The 'Dublin II' Regulation was based on said principle of mutual confidence and if rights are infringed, this should not obstruct the transfer of an asylum seeker to the Member State responsible. But the Court held that an asylum seeker may not be transferred by a Member State where the asylum seeker would be at real risk of inhuman treatment or degrading treatment.
The Court the Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. In addition, the ECJ held that it is EU law that is implemented when a state makes a decision whether or not to assume responsibility.
Cian Murphy has said in a post on humanrights.ie that the judgments are significant for member states and this area of law:
"The judgment in NS is not fatal to the European asylum system. There is a high bar to be cleared for any asylum seeker attempting to avoid transfer within the Union. At the same time, the very high proportion of asylum seekers that enter the EU through Greece means that a finding against that Member State alone is enough to cause something of a crisis in this field of EU law. One wonders where this leaves other states, such as Italy, which face serious problems complying with their obligations despite, or indeed because, it is a point of entry for many asylum seekers. On the EU Charter the judgment is both wiley and wise but its greatest significance may be in terms of the opprobrium it will provoke in the UK. As the well-worn proverb has it: interesting times lie ahead for human rights law."
Click here to see the judgment in full and here to see the Advocate General's opinion
Click here to see a piece by the Irish Times on the case.
Click here to see a piece by BBC News on the case.
Click here to see a piece by the Guardian on the case.