The new EU Migration Agenda takes shape: analysis of the first new measures

Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda(previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidanceon the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’tpicked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Barnard & Peers: chapter 26

Photo: GlobalNation.Inquirer.net

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Can the UK opt-out of mandatory EU refugee quotas?

 

Steve Peers

In two days’ time (Wednesday May 13^th), the EU Commission is due to present a communication on a new EU immigration and asylum agenda. I’ll look at this agenda in detail later, but one key issue calls for comment already: will the UK have an opt-out from mandatory refugee quotas?

Part of the Commission paper has been leaked, and it’s clear that at least on the issue of resettlement of refugees, the current draft of the paper is more ambitious than the conclusions of EU leaders, agreed a couple of weeks ago (see my comments on their conclusions here). In particular, the Commission plans to propose mandatory rules on ‘relocation’ of asylum-seekers and ‘resettlement’ of refugees. In EU jargon, ‘relocation’ refers to those already in the EU, while ‘resettlement’ applies to those currently in non-EU countries. The first group do not necessarily have valid asylum claims, while the latter group usually have their status as refugees positively assessed before they are admitted to the territory.

According to press stories in the Guardian and the Times (the latter is paywalled) there may be a conflict with the UK as regards refugee quotas, because of a doubt that the UK can opt out of these proposals. Let’s look at this from the legal and political point of view in turn.

Legal analysis

The draft Commission plan refers to the ‘legal base’ of the relocation proposals as being Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that:

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

Article 78(3) is part of the Justice and Home Affairs (JHA) provisions of the Treaty. All of these provisions are found in Title V of Part Three of the TFEU. But the UK has an opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of the Treaties provides that (my emphasis):

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.

Article 1 refers to Article 3 of the Protocol, which is the power for the UK and Ireland to opt in to proposals on a case-by-case basis if they want to. For the avoidance of doubt, Article 2 of the Protocol reiterates that (my emphasis):

In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland.

Article 2 refers to Articles 4 and 6: these rules give the UK power to opt into a JHA measure after it’s adopted (Article 4) and make clear that ifthe UK opts in to a JHA act, all the rules in the Treaty (ie the CJEU’s jurisdiction) apply (Article 6).

It’s beyond doubt that the opt-out Protocol applies to all JHA measures. This is confirmed because a specific clause (Article 9) does, by way of exception, state that one JHA rule (on anti-terrorist sanctions) applies to Ireland without any opt-out. There’s a similar sort of exception in a parallel Protocol which sets out JHA opt-outs for Denmark. So by a contrario reasoning, the UK can opt out of any JHA measures. If there were any exception for Article 78(3), it would obviously appear in the Protocol.

So it seems clear enough that the UK does not have to opt in to any refugee law measure, as long as it falls within a JHA legal base. The Commission paper does not contemplate the dubious strategy of trying to propose a refugee law measure on a non-JHA legal base, in order to circumvent the UK’s opt-out.

However, there is a specific rule which applies where an EU proposal would amendexisting EU legislation which the UK is already bound by. In fact, the UK is not bound by most current EU asylum legislation, but it is bound by the Dublin Regulation, which determines which Member State is responsible for the application of an asylum-seeker who is on the territory (or in the territorial waters) of a Member State.  

There seems no reason to amend the Dublin Regulation as regards any resettlementproposal, since resettlement concerns recognised refugees currently in third countries, not asylum-seekers currently on the territory of the EU Member States. However, the relocationproposal probably would have to amend the Dublin Regulation, since it would necessarily alter the current rules on which Member State is responsible for an asylum application.

The special rule applying to the cases where a JHA proposal amends a JHA act which already binds the UK is set out in Article 4a of the Protocol:

1. The provisions of this Protocol apply for the United Kingdom and Ireland also to measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union amending an existing measure by which they are bound.

So the UK opt-out continues to apply in such cases. However, there’s a catch: if the UK opts out of such proposals, it’s possible for it to be turfed out of its participation in the existing law, ie the law which the proposal seeks to amend. In this case that would mean that the UK would be turfed out of its participation in the Dublin Regulation, which results in a net allocation of asylum-seekers from the UK to other Member States.

Article 4a sets out the details of how this would work. First of all, the Council (by a qualified majority vote of participating Member States, ie without the UK’s vote), on a proposal from the Commission, decides that the revised law would be ‘inoperable’ for other Member States or the UK, if the UK doesn’t participate. That decision in effect gives the UK an ultimatum to opt in to the amending law within two months. If the UK doesn’t opt in within that period, then the original measure (ie, the current Dublin Regulation) automatically ceases to apply to the UK.  

This ‘ultimatum’ clause dates from the Treaty of Lisbon, and has never been used. It would obviously cause considerable political friction if it were, given that the UK is attached to continuing its participation in the Dublin rules.

The new proposals might alternatively (or additionally) take the form of amendments to the current EU temporary protection Directive, which the UK also participates in. The same considerations about using the ultimatum clause would apply, except that there would not be so much political sensitivity: that Directive has never been used in practice, and the current UK government would probably not be upset about being expelled from it (this Directive dates back to 2001; the UK opted in under the previous Labour government). However, the proposals might also take the form of amendments to the EU’s Asylum and Migration Fund, which the UK participates in and would be reluctant to be expelled from (the previous coalition government opted in to it).

It should also be noted that there might be a legal argument about the use of Article 78(3), because the European Parliament (EP) would likely prefer another asylum ‘legal base’ to apply which would give it its usual power over EU legislation. But using a different asylum legal base would not alter the rules relating to the UK’s opt-out.

Political context

First and foremost, it has to be pointed out that the Commission’s proposals may not be accepted. Indeed, given the many previous failed attempts to agree EU rules on relocation and resettlement, and the obvious lack of willingness of EU leaders to commit themselves on these issues even in light of the recent migrant death toll, such proposals might well be dead on arrival. It’s clear from the wording of the Treaty that there has to be a qualified majority of Member States in the Council to approve such proposals, although the EP is only consulted.

Similarly, the UK could not be given an ultimatum as regards its participation in existing EU law unless the Commission proposes a Council decision to this end, and the Council agrees by qualified majority (without a UK vote). The EP has no role in that case. It’s far from certain that this would happen, even if the Council were enthusiastic about these Commission proposals.

In light of this, in combination with the election of a majority Conservative government committed to holding a referendum on the UK’s membership of the EU, is it really wise for the Commission to make these proposals and suggest that they might bind the UK despite its opt-out? Admittedly it’s not realistic to expect the Commission to avoid making any proposal which might cause the least offence to the UK for the many months up until the referendum date. But if it wants the UK to remain in the EU – as the Commission President says it does – it has to avoid making proposals which are liable to cause the mostoffence. That particularly applies to proposals relating to immigration, which is by far the most sensitive issue for the UK’s relations with the EU.

After all, if the UK leaves the EU, there would anyway be no prospect of relocating asylum-seekers here in any event. While it’s understandable that the Commission wants bold solutions to the EU’s migrant crisis, there are times when discretion is the better part of valour.

 

Barnard & Peers: chapter 26

Photo: bbc.co.uk

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What remedies do asylum-seekers have in the Dublin system? Details of new case

Steve Peers

Here are the questions and background information in a new Dutch reference to the CJEU, the first case concerning the latest version of the EU's asylum responsibility rules (known as the 'Dublin III Regulation'). It's a rough, unofficial translation from the original. Thanks to Flip Schuller, lawyer at Prakken D'Oliveira, for this.

Preliminary questions from the court The Hague (Den Bosch)

Case number: AWB 14/12282

Brief summary of the case

The applicant applies for asylum on 04-03-2014. Based on research in the EU-VIS-system it turns out that the applicant received a visa from the French representation in Iran on the date 17-12-2013. This visa was valid from 17-12-2013 until 11-02-2014.

On 07-03-2014 the State Secretary for Security and Justice requested France to take charge of the application of the applicant. The French authorities accepted this request on 5-5-2014.

 

The State Secretary has the view that France is responsible for determining the application for international protection based on article 12(4) of Regulation 604/2013. The applicant had a visa and furthermore the French authorities accepted the take-charge request from NL. Furthermore, the State Secretary finds that the applicant did not prove that he left the territories of the EU MS since he did not provide with documents to underline his travel from France-Iran and Iran-Netherlands. He states that the submitted documents are prepared only on the request of the applicant which lead to the conclusion that these documents are not reliable (not objective evidence). Therefore the State Secretary finds it not credible that the applicant did actually leave the territory of the EU MS, even if one should have the view that the delivered documents are authentic.

The applicant declared that he made use of the visa on 18-12-2013, that he slept one night in Paris and then returned to Iran. Then he travelled on 20-02-2014 illegally from Iran, through Turkey and finally arrived in the Netherlands somewhere around 01-03-2014. The applicant declared that his passport with stamps is taken by the Sepah-e Pasdaran-e Enqelab-e and that he doesn’t have evidence to submit about his travel. The applicant emphasizes that he did not have troubles in Iran before and that the problems firstly arose on 15-02-2014.

To underline the applicant resided in Iran after being in France, he submitted the following documents:

-          A statement from his employer;

-          A statement from a physician;

-          A signed agreement on the sale of property. With regard to that the applicant states that it is dated on 10-01-2014 and that he had to sign this agreement in person.

 

The preliminary questions are:

1. What is the extent of article 27 of Regulation 604/2013 [the right to an appeal], whether or not in conjunction with consideration 19 of the Preamble of Regulation 604/2013?

Does an applicant, in a situation like this, where the applicant firstly after a claim-acceptance is confronted with the Dublin claim and the applicant thus evidence submits after the claim-acceptance which could lead to the conclusion that not the requested EU MS but the requesting EU MS is responsible for the application for international protection, and that then the requesting EU MS does not examine the submitted evidence nor submit it to the requested EU MS, based on this article (thus art. 27) has a right to an (effective) remedy against the application of the criteria for determining the EU MS responsible (mentioned in chapter III of Regulation 604/2013?

 

2. Is, in case the applicant based on the Regulation 604/2013, and also based on Regulation 343/2003, in principle doesn’t have an appeal on the incorrect application of determining the EU MS responsible when the requested EU MS has accepted the take-charge request, the view of the State Secretary for Security and Justice correct that this starting point only has an exception in family situations as mentioned in art 7 of Regulation 604/2013, or could there be other particular facts and circumstances considerable on which an applicant can appeal to an incorrect application for determining the EU MS responsible?
 

3. In case the answer on question 2 is that also apart from family-situations other circumstances could lead to the conclusion that an applicant can appeal on the basis of an incorrect application of the criteria for determining the EU MS responsible, could that be the facts and circumstances mentioned in consideration 12 of this judgment? [These are the documents mentioned in the summary of the case.]

 

Barnard & Peers: chapter 26

 

 

 

 

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Tarakhel v Switzerland: Another nail in the coffin of the Dublin system?

 

Steve Peers

Introduction

Despite the EU’s purported adherence to high standards of human rights protection, the EU’s Dublin system, which allocates responsibility for each asylum-seeker’s application to a single Member State, has repeatedly run foul of human rights standards. Yesterday’s judgment of the European Court of Human Rights (‘ECtHR’, or ‘Strasbourg Court’) in Tarakhel v Switzerland, and the recent judgment of the same court in Sharifi v Italy and Greece, have further confirmed the problems in making this system compatible with ECHR obligations.

In fact, the Tarakheljudgment goes further than the prior judgments, which had merely exposed the lack of sufficient human rights protection in the EU legislation, as applied by Member States. Rather, it is now clear that the approach of the Court of Justice of the European Union (CJEU) in interpreting the Dublin rules is also incompatible with the ECHR.

Background

The Dublin rules initially appeared as part of the Schengen Convention, which bound only certain Member States. They were then set out in the form of the Dublin Convention, signed in 1990. This Convention was replaced by an EC Regulation (known as the ‘Dublin II Regulation’) from 2003. That Regulation was in turn replaced by the Dublin III Regulation, adopted in 2013, which applies to all applications made after 1 January 2014. Furthermore, the Dublin rules have been extended to the non-EU countries associated with the Schengen system, by means of treaties with Norway and Iceland on the one hand, and Switzerland and Liechtensteinon the other.

The previous leading cases on the compatibility of the Dublin regime with human rights were (for the Strasbourg court) the 2011 judgment in MSS v Belgium and Greece, and (for the CJEU) the judgment in NS, delivered later that same year. In MSS, the ECtHR ruled that Greece had violated Article 3 ECHR (the ban on torture or other inhuman or degrading treatment) in three ways: its treatment of the Afghan asylum-seeker in question in detention; its failure to secure adequate living conditions for him after release from detention; and its highly deficient asylum procedure. The evidence of these violations was found in numerous reports by NGOs and international bodies. The Court also ruled that Belgium had violated Article 3 ECHR because it had returned the same asylum-seeker to Greece (in accordance with the Dublin rules), even though it must have known of the situation there. For good measure, the Court also ruled that Belgium had violated Article 13 ECHR (the right to an effective remedy), since Belgium did not provide for sufficient reviews of the merits in cases such as this one.

Subsequently, the CJEU ruled in NS that asylum-seekers could not be returned to Greece, pursuant to the Dublin rules, because of systematic deficiencies in the asylum system in that country. Removals in such cases would constitute a breach of Article 4 of the EU Charter of Fundamental Rights (the equivalent of Article 3 ECHR). However, the Court distinguished such major breaches of fundamental rights from minor violations of EU or international rules relating to refugees, which would not require Member States to refrain from applying the Dublin rules.

Before the ECtHR could rule in Tarakhel, the CJEU clarified its position in its judgment in Abdullahi, delivered late in 2013. The Court started out by emphasising the presumption that all EU Member States protected human rights, noting that there was now second-phase legislation establishing the Common European Asylum System. It then characterised the Dublin rules as essentially regulating the relationship between Member States, referring in particular to the optional ‘sovereignty’ and ‘humanitarian’ clauses in the Dublin II Regulation, as well as the possibility of conciliation or separate arrangements between Member States. It followed that when two Member States agreed which of them was the Member State of first authorised entry (triggering responsibility under the Dublin rules), an asylum-seeker could ‘only’ challenge that decision by ‘pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum’ in the Member State which was deemed responsible for the asylum application.

Finally, the recent Sharifijudgment pf the Strasbourg Court established that Italy’s interception of asylum-seekers from Greece in the Adriatic, and their forced return to Greece, violated Article 3 ECHR as well as the ban on collective expulsions in the Fourth Protocol to the ECHR. In doing so, it confirmed a key corollary of the MSS ruling: Member States breach the ECHR if they stop asylum-seekers fleeing an unsafe country directly from crossing their borders. Although the rules on freedom to travel for third-country nationals in the Schengen Convention do not give asylum-seekers the right to move between Schengen States (unless, improbably, they have a visa or residence permit, or the visa requirement is waived for their country of origin), the ECHR nevertheless gives asylum-seekers the freedom to travel between Schengen countries (or any States) in such circumstances. Also, the right to move to another country extends beyond the three-month time limit on intra-Schengen travel, since asylum-seekers can in principle stay until their claim is finally rejected.

The Tarakhel judgment

Yesterday’s judgment concerned a family of eight Afghans, who entered the EU by crossing the Italian border first. This made Italy responsible for their applications under the Dublin rules. However, the family soon left the asylum-seekers’ reception centre which they were assigned to in Italy, on the grounds that conditions there were inadequate for families. They moved to Austria, which triggered the Dublin rules, asking Italy to take charge of them. Italy agreed, but before their transfer to Italy could be carried out, they moved on to Switzerland. That country in turn asked Italy to take charge of the family; Italy tacitly accepted.

However, they challenged their removal to Italy on the grounds that their treatment in that country, if they were removed there, would violate Article 3 ECHR. They lost their case in the Swiss courts, so asked the ECtHR to rule that their removal to Italy would constitute a breach of Article 3, as well as Article 8 ECHR (the right to family life). They also alleged a breach of Article 13.

The ECtHR rejected the Article 13 claim on the merits, since the Swiss courts had examined the merits of their legal arguments and they were allowed to stay on Swiss territory in the meantime. It held that it was not necessary to examine the Article 8 argument. Most importantly, by a majority of 14-3, it found that there was a breach of Article 3 ECHR.

Yet there are important differences between the MSS judgment and the Tarakhel judgment. Yesterday’s judgment does not state that Italy’s asylum system has effectively collapsed, as was the case in Greece. In particular, there were no allegations in Tarakhelrelating to flaws in Italy’s asylum procedures, or as regards detention. The argument instead was solely about living conditions in Italian detention centres.

The ECtHR began by reiterating its case law from MSS about reception conditions for asylum-seekers. While Article 3 ECHR did not guarantee a home or financial assistance, in cases involving EU Member States the Court took account of their specific obligations in that respect under the EU’s reception conditions Directive. Also asylum-seekers were an ‘underprivileged and vulnerable group’, and it was possible that extreme poverty could raise issues under Article 3. The Court also referred to other prior case law on the need to ensure that child asylum-seekers, who were in a position of ‘extreme vulnerability’, enjoyed ‘protection and humanitarian assistance’.

Next, the Court reiterated the usual rule that Article 3 prevents removal if ‘substantial grounds have been shown for believing’ that there is a ‘real risk’ of treatment contrary to Article 3 in the state of destination. The same rule could be used to rebut the assumption that countries applying the Dublin system were all safe. In this context, the ECtHR referred to the CJEU’s ‘systemic deficiencies’ test set out in the judgment in NS, but made no reference to the ruling in Abdullahi that this was the ‘only’ ground for challenging the application of the Dublin rules. However, the ECtHR also ‘notes’ the recent EM judgmentof the UK Supreme Court, which expressly stated that ‘systemic deficiencies’ were not the only ground for such challenges. Overall, the Court stated that these tests had to be applied by examining ‘the applicant’s individual situation in light of the overall situation prevailing’ in the state of destination.

Applying these rules to this case, the applicants had made three complaints about the situation of the Italian reception system. The first complaint, about the slowness of identification procedures, was dismissed out of hand, since the applicants had in fact been identified quickly. As for the second complaint, the Court accepted the evidence that there were not enough places for all asylum applicants. Thirdly, as for the reception conditions within the available facilities, a number of problems had been identified by the UNHCR and the Council of Europe’s Human Rights Commissioner.

Taken as a whole, then, the Court ruled that the ‘current situation in Italy can in no way be compared to the situation in Greece at the time of the MSS judgment’, where only a small fraction of asylum-seekers could be accommodated and ‘the conditions of the most extreme poverty…existed on a large scale’. So there could not be ‘a bar to all removals of asylum seekers to that country’. Having said that, the Court accepted that there was some risk that asylum-seekers might not get accommodation, or that the accommodation would be inadequate.

As for the individual position of the applicants, that was not comparable to the facts of the MSScase either.  The family in this case were taken care of immediately by the Italian government, rather than detained and then left to fend for themselves. But again, having said that, the Court was concerned that, in light of the vulnerability of asylum-seekers, and children in particular, there was no guarantee of (adequate) accommodation for families seeking asylum in Italy. So Switzerland could not send the family to Italy unless they obtained sufficient assurances on this point. This alone constituted a breach of Article 3 ECHR.

Interestingly, the majority judgment makes no reference to the alternative possibility of asylum-seekers obtaining private family housing at the expense of the State, which the CJEU developed in its recent Saciri judgment on the reception conditions Directive.

Comments

With great respect, there are many flaws with the CJEU’s judgment in Abdullahi. That judgment confuses Regulations (directly applicable in national legal systems) with Conventions (essentially governing relations between States). It places undue reliance on provisions of the Dublin II Regulation which were never applied in practice (conciliation) or were irrelevant to the case at hand (separate arrangements between Member States). It ignores the CJEU’s own case law on the ability to challenge Member States’ application of the Dublin II rules as regards unaccompanied minors (MA), humanitarian situations (K) or withdrawn applications (Kastrati). Its scope is unclear: does it only apply when Member States agree that the criterion regarding irregular entry is applicable, or in other cases as well? In any event, the judgment needs to be rethought in light of the Dublin III Regulation, which considerably expanded the procedural rights of asylum-seekers in the Dublin context. Why do that, if they can only challenge their transfer if there is a complete breakdown in the asylum system of the State responsible for their application?

But the most fundamental flaw in the Abdullahi judgment is exactly that: the CJEU’s statement that at least in some cases, the determination of the responsible Member State can ‘only’ be challenged if there are ‘systemic deficiencies’ in the asylum system of that State. Is that statement still correct after Tarakhel?

Certainly the statement is wrong if the CJEU meant (as it appeared to say) that both the asylum procedure and the reception conditions systems have to have failed in the responsible Member State, before a transfer to that State can be challenged. In Tarakhel, there is no issue raised regarding the asylum procedure in Italy. More generally, the Italian reception system is not in complete breakdown: the Tarakhel family faces neither extreme poverty nor vile detention conditions, but merely some risk that accommodation will either not be available or that it will be somewhat unpleasant. Accordingly, the Swiss obligations are nuanced: there is no ban on transfers, merely a procedural obligation to make arrangements with the Italian authorities.

It isn’t clear whether Tarakhelabandons the CJEU’s assumption that only ‘systemic deficiencies’ in the asylum system of a responsible State can justify a challenge to a Dublin transfer, or whether the judgment merely modifies the notion of ‘systemic deficiencies’ considerably, lowering the threshold for its application. On the first hypothesis, ‘systemic deficiencies’ are just one example of a situation that could lead to rebuttal of the assumption that another Dublin State is safe. Uncertainty about adequate reception conditions for families is another. But surely this cannot be an exhaustive list.

On the second hypothesis, a ‘systemic deficiency’ would not exist only where an asylum system had entirely collapsed, but where some particular aspect of the system was malfunctioning regularly to some extent. By analogy, a car needs to be fixed not only when the brakes entirely fail to work, but also when the windshield wipers occasionally malfunction. The risk is far greater in the first case, but the second case shouldn’t be ignored either. Again, the problems in Tarakhel cannot be the only example of a flaw in the asylum system of a responsible Member State that needs to be fixed before asylum-seekers can be transferred there.

There isn’t much difference between these two possible interpretations of Tarakhel. Although the first interpretation is in principle more open-ended than the second one, it shouldn’t take too much imagination to argue that any particular problem an asylum-seeker might face in the responsible Member State is ‘systematic’ in this very broad sense. The second interpretation does give the CJEU more leeway to back down from its head-banging judgment in Abdullahi, and explain that this was also what it had meant by ‘systemic deficiencies’ all along.

Of course, given the strong insistence on the efficiency of the Dublin system in the Abdullahijudgment, this is obviously not what the Court had meant at the time. Yet the clear message from the Tarakhel case is that there is not a simple binary distinction between cases when all Dublin transfers should stop, on the one hand, and cases when all Dublin transfers should go ahead at full speed, on the other. Instead, like a traffic light, yesterday’s judgment creates an intermediate category of cases in which national administrations must proceed with caution. This will undoubtedly make the Dublin system more costly and complex to administer, but that is often the only way to ensure that human rights are protected effectively.  

Barnard & Peers:  chapter 9, chapter 26

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