A central tenet of international human rights law, and more specifically international refugee law, the principle of non-refoulement provides for the prohibition on States from returning individuals in any manner whatsoever to countries or territories in which their lives or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The principle serves as an indispensable measure through which human rights violations can be prevented.
In the context of the principle of non-refoulement, requests for a preliminary ruling under Article 267 TFEU through five joined cases were made to the Court of Justice of the European Union (CJEU). In its judgement of 30 November 2023, CJEU found that while the obligations of providing information to asylum seekers exists upon all member states, not just the first member state where an application is made, there is no obligation save in extraordinary circumstances for the second member state to consider the potential risk of indirect refoulement by transferring the applicant to the state of the original application.
The CJEU’s authority was invoked in response to a series of five cases with similar factual background being directed to the ECJ. They shared similar factual background insofar as they each involved an asylum applicant who had already made an application in one Member State, and who then proceeded to move and apply for asylum in a second Member State. In each case, the second Member State acting pursuant to the Dublin III Regulations (which aim to ensure quick access to the asylum procedures and the examination of an application on the merits by a single, clearly determined EU country) and upon discovering the original application through the Eurodac database, ordered that the asylum applicant be transferred back to the first Member State. Consistent in all five joined cases was a challenge to the legal validity of this transfer order before the Court in the second Member State, whereby it was alleged that neither the first or second Member State considered the general situation of indiscriminate violence in the applicant’s home country in the asylum application. It was further argued in each of the joined cases that the decision of the second Member State breached Article 4 of the Charter of Fundamental Rights (prohibition of torture and inhuman or degrading treatment) because of the risk of ‘indirect refoulement’.
In all of the cases, the ECJ found two key issues. The first is whether the second member state has an obligation to provide the ‘common leaflet’ information and provide a personal meeting for the applicant, and furthermore whether failure to do so, renders the transfer attempts invalid. The second query is whether there is an obligation on the second member state to consider the potential risk of ‘indirect refoulement’ of the applicant upon the transfer to the first member state.
In addressing the first query, the Court found that the provision of the ‘common leaflet’ and a personal interview are required for both the first asylum application and a subsequent application in a second Member State This gives the applicant an opportunity to inform the authorities of the second Member State about anything that might hinder their transfer and might justify the second Member State becoming the one responsible for examining their asylum application. Failure of the Member State to comply with such obligations may justify the annulment of the transfer order.
In the second query the ECJ came to a different finding. It concluded that the courts of the second Member State cannot examine whether the applicant will be at risk of ‘indirect refoulement’ through their transfer to the first Member State, unless the second Member State find there are systemic flaws in the asylum procedure in the first Member State.
This decision clarifies the duty and responsibility of Member States upon dealings with an asylum applicant who has lodged a previous application in another Member State. It serves to grant asylum applicants an additional opportunity to explain any reasonable justifications as to why the first member state is not suitable for processing their application.