Fahamu Refugee Legal Aid Newsletter

It has been requested that the Austrian Asylum Court ask the European Court of Justice (ECJ) whether the removal of an asylum‐seeker to Hungary, in application of the Dublin Regulation, should be suspended. The request was lodged on 27 August 2012. Despite serious concerns expressed by the Helsinki Committee in Hungary and the UNHCR, concerns that were based on well‐documented evidence that the rights of asylum seekers, refugees and migrants are violated in Hungary, no mention was made of the risk of the claimant being mistreated upon return to Hungary. The decision of the constitutional court remained purely technical: was Hungary the first EU country to be entered, or not?

The Dublin II Regulation

The Dublin Regulation (343/2003) ‘establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by third‐country nationals’ was adopted in February 2003. The Regulation replaced the 1990 Dublin Convention, which established the principle that people seeking international protection in the European Union (EU) should lodge their asylum application in the first Member State they enter. It is now known as the ‘Dublin II Regulation.’

The application of the Regulation means that countries located at the EU’s external borders are more likely to be held responsible for the claims of asylum‐seekers arriving by land or by sea.

Suspension of removals to Greece

Member States are not obliged to send asylum‐seeker back to the first EU country they entered. Article 3.2, known as ‘the sovereignty clause’, states that:

‘By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third‐country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility’.[1]

This clause was, for example, used in France in May 2010 to suspend the removal of two Palestinians to Greece. The Council of State (Conseil d’Etat) established that a transfer to Greece would constitute a serious violation of their right to seek asylum, based on documented evidence of the ill‐treatment they were subjected to when in Greece (medical certificates; reports).[2]

However, this article is generally not used unless the asylum‐seekers are provided with appropriate legal advice to challenge a Dublin II removal decision. Article 3.2 is hardly used in the first instance by the authorities, despite many reports documenting the shortcoming of some Member States’ asylum mechanisms, including Greece’s.

In January 2011, a landmark ruling by the European Court of Human Rights found Belgium and Greece guilty of breaching Article 3 (prohibition of letting someone be subject to inhumane and degrading treatment).[3] Belgium refused to consider an Afghan asylum‐seeker’s appeal not to be sent back to Greece, his first EU country of arrival, where he was detained and then released and left in destitution without any information or support regarding the possibility of lodging an asylum claim. The court found Belgium guilty of not providing an asylum appeal and the country received a €6,000 fine. Greece was fined €30,000.

Yet the reception conditions and the asylum procedure in Greece have not changed, mostly because of Greece’s lack of capacity and unwillingness to open access to the asylum procedure for migrants seeking international protection. Many reports continue to denounce the violation of the rights of asylum‐seekers, not least the principle of non‐refoulement.[4]

On 21 December 2011 the European Court of Justice gave its opinion in joint cases involving the UK and the Netherlands with respect to Dublin II transfers to Greece.[5] Referring to the ECHR ruling, the ECJ highlighted that it could not be taken for granted that Member States were respecting fundamental rights and that claims of human rights violations in a Member State should be examined as a result. The court also ruled that asylum‐seekers should not be sent to a Member State that was known be fundamentally flawed in its application of the asylum procedure and the provision of acceptable reception conditions for asylum‐seekers, as was the case in Greece:

‘If there is a serious risk that the fundamental rights, under the Charter of Fundamental Rights, of the asylum seeker to be transferred may be breached in the Member State having primary responsibility, the other Member States may not transfer an asylum seeker to that Member State. Rather, the other Member States are, in principle, obliged to exercise the right to assume responsibility under Regulation No 343/2003 and must themselves examine the asylum application.’

Hungary: another Greece?

The January 2011 ECHR decision led to the temporary suspension of 531 Dublin II transfers to Greece by the court,[6] while both the ECHR and the ECJ decision resulted in all Member States officially or tacitly suspending transfers to Greece until the asylum system improves.

Now mounting concern has been expressed by NGOs regarding the asylum system in Hungary. In September 2011, Hungary was condemned by the European Court of Human Rights for the illegal detention of two Ivorian asylum‐seekers in a case brought to the court by the Hungarian Helsinki Committee.[7] In December 2011, the human rights organisation used its field expertise to release a note on the treatment of Dublin returnees in Hungary in which it was argued that: ‘In the Hungarian Helsinki Committee’s opinion, Hungary currently does not provide appropriate reception conditions and access to protection to asylum‐seekers returned under the Dublin procedure’.[8]

In April 2012, the UNHCR published a highly critical report in which the Commissioner strongly denounced Hungary’s treatment of asylum‐seekers and refugees. One particular section of the report was dedicated to Dublin II returnees who, according to the UNHCR, either do not have access to the asylum procedure or can only access it in an unfair manner; are automatically detained upon return to Hungary; or may be sent back to unsafe third countries in breach of the non‐refoulement principle. This occurs because asylum applications lodged by Dublin II returnees do not have a suspensive effect on the deportation order they are issued.[9]

Many asylum‐seekers who entered the EU by means of Hungary attempted to secure protection in Austria, but were sent back to Hungary when the Dublin II Regulation was applied. One removal was suspended in January 2012 by the European Court of Human Rights, pursuant to Rule 39 of the rules of the Court.[10]

In June 2012, the Dublin II transfer from Italy to Hungary of an Afghan asylum‐seeker was suspended by the Lazio Tribunale Amministrativo Regionale (TAR, Regional Administrative Court) based on evidence that the asylum seeker was the victim of illegal detention and mistreatment in Hungary.[11] The court based its findings on the ECJ ruling whereby Member States must refrain from sending back asylum‐seekers to countries where there is a risk that the rights safeguarded by the EU Charter of Fundamental Rights may be breached.

The technicalities of Dublin II beyond human rights considerations

In a recent case in June 2012, a Dublin II transfer decision was taken by Austria to send a Pakistani asylum‐seeker back to Hungary. It was deemed by the Austrian asylum court to be the first EU Member State he entered as well as the first in which he lodged an asylum claim. Therefore his asylum claim was to be examined by Hungary. However, the person had entered the EU earlier through Greece, without claiming asylum there, and he had then travelled through Macedonia and Serbia before he entered Hungary, and finally Austria, where a second application was lodged.

However, as identified by the Austrian constitutional court, the asylum‐seeker’s journey in the EU started in Greece, although the ‘Dublin chain was quasi disrupted’ between Greece and Hungary, when the man crossed Macedonia and Serbia. It was thus unclear which EU country was first entered under the Dublin II Regulation: Greece or Hungary. The Austrian constitutional court thus ruled that the asylum court should not have decided to send the asylum‐seeker back to Hungary, as Hungary’s responsibility had not yet been established. As a result, the transfer was suspended and the asylum court was requested to ask the ECJ’s opinion on the matter. The application was lodged on 27 August 2012.[12]

If Greece were found competent to examine the case, it is likely that the asylum‐seeker would have the possibility of seeking protection in Austria. Indeed, the constitutional court made a clear reference to the above mentioned ECHR and the ECJ jurisprudence, and pointed out that the situation in Greece is potentially too poor to allow for a Dublin II transfer. However, despite differing reports, and the temporary suspension in January 2012 of the transfer of a Sudanese asylum‐seeker to Hungary by the ECHR (Rule 39 interim measure)[13], it is still uncertain what conclusions Austria will reach after the ECJ gives its decision on the issue.

Indeed, in the Austrian constitutional court’s decision, no mention was made of the human rights situation in Hungary; the decision also failed to mention the violation of the rights of migrants and refugees. There was also no reference to the ECJ’s jurisprudence, overlooking the decision made by Italy in June 2012. The transfer to Hungary was initially approved by the Austrian asylum court, despite the existing evidence of human rights violations.

The sustainability of Dublin II

Many discrepancies exist among Member States as to the criteria applied to grant international protection to asylum‐seekers. The pressure which many EU countries are facing, the incapacity of many of them to cope with the number of asylum claims (lack of reception capacities, trained staff), and the economic crisis which has a direct impact on the resources available to support the asylum effort, mean that many countries of arrival for asylum‐seekers are unable to provide them with decent reception standards.

In April 2011, Malta, Greece, Italy, and Cyprus released a joint communiqué calling for the revision of the Dublin II Regulation to include ‘a mechanism to suspend the transfers to Member States facing particular pressure on their national asylum systems’ and a sharing of responsibility amongst Member States to relocate people granted protection within the EU.[14]

In the absence of fully harmonised criteria according to which claims are examined in the same way across the EU, asylum seekers will be likely to try and reach Member States where they believe they will have more chance of being granted protection, what Member States call ‘secondary movements’, or more critically ‘asylum shopping.’

The European Asylum Support Office (EASO) was established in 2010 to support the harmonisation of asylum practices in Europe. The EASO will publish Country of Origin Information reports and will provide support to Member States facing particular challenges with their asylum system (training, temporary support with experts to alleviate backlog). Meanwhile, the European Union is hoping to complete the Common European Asylum System (CEAS) by the end of 2012, once asylum related legislation has been revised in order to address shortcomings. The CEAS is comprised of the newly revised 2004/83/EC Qualification directive[15] (a document that stipulates who is to qualify as a person in need of international protection), the 2003/9/EC Reception directive,[16] the Dublin II Regulation and the 2005/85/EC Procedure directive.[17]

However, despite obvious shortcomings in the Dublin system and the need for more solidarity and harmonised criteria in asylum procedures amongst Member States, the ongoing revision of the Dublin Regulation[18] has already been criticised (see Statewatch analyses by Steve Peers[19]) and is unlikely to resolve the issues at stake.

As long as asylum seekers are not treated equally across the EU and no genuine relocation mechanism exists between EU countries – a situation which, judging by the state of play of the CEAS negotiations and draft revisions of the Dublin II Regulation, is a condition that will likely endure – the Dublin system will be doomed to fail, and Member States under pressure will remain reticent to open access to asylum procedures to those who seek protection.

Under these conditions, and because systemic issues are not addressed, the responsibility for asylum applications will probably shift from one country to another depending on whether countries are found to be ‘competent’ after judicial rulings. And all of this in spite of well‐documented evidence of human rights violations available elsewhere.

[1] ‘Council Regulation (EC) establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third‐country nationals’, No. 343/2003, 18 February 2003.

[2] Conseil d’Etat, Ordonnance du 20 mai 2010, Nos. 339478 & 339479 [in French].

[3] European Court of Human Rights, Grand Chamber ruling, ‘M.S.S. v. Belgium and Greece’ (Application No. 30696/09), 21 January 2011.

[4] Human Rights Watch, ‘The EU’s dirty hands: Frontex’s involvement in ill‐treatment of migrant detainees in Greece’, September 2011.

[5] Court of Justice of the European Union, ‘Opinions of the Advocate General in Joined Cases 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 and Minister for Justice, Equality and Law Reform, Press Release No 96/11’, 22 September 2011.

[6] ‘Greek asylum system in disarray,’ European Voice, 27 January 2011.

[7] European Court of Human Rights, ‘Lokpo and Touré v. Hungary’ (Application no. 10816/10), 20 September 2011 (final judgment 8 March 2012).

[8] Hungarian Helsinki Committee, ‘Access to protection jeopardised: Information about the treatment of Dublin returnees in Hungary’, December 2011.

[9] UNHCR, ‘Hungary as a country of asylum: Observations on the situation of asylum seekers and refugees in Hungary’, 24 April 2012.

[10] ‘European Court of Human Rights, ECHR interim measure suspending the expulsion of the applicant to Hungary’ (Application no. 2283/12), 11 January 2012.

[11] Statewatch news, ‘Court annuls Afghan’s Dublin II return to Hungary’, 28 June 2012.

[12] Verfassungsgerichtshof, ‘U330/12’, 27 June 2012, European Court of Justice, Abdullahi, Case C‐394/12, case still in process (as of August 2012).

[13] Ibid at 10

[14] ‘Malta, Cyprus, Greece and Italy, Joint Communiqué II’ (developments in the Southern Mediterranean region), 19 April 2011.

[15] Statewatch, ‘Qualification Directive’ (September 2012).

[16] Statewatch, ‘The EU Directive on Reception Conditions’ (September 2012).

[17] Statewatch, ‘The Revised Asylum Procedures Directive’ (September 2012).

[18] Coreper, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third‐country national or a stateless person’ (Recast) [First reading], 12746/1/2012, 27 July 2012.

[19] Statewatch Analysis, ‘The revised ‘Dublin’ rules on responsibility for asylum‐seekers: a missed opportunity’, Steve Peers, Professor of Law at Essex University, June 2012, Statewatch Analysis, ‘Revising the ‘Dublin’ rules on responsibility for asylum seekers: Further developments’, July 2012.