Court of Justice of the European Union makes judgement on transfer of asylum seekers under Dublin II

On Wednesday 21 December 2011 the Court of Justice of the European Union (CJEU) gave judgment in joined referrals from the Irish High Court and the English Court of Appeal relating to the transfer of asylum seekers under the Dublin II Regulation.

UNHCR was granted leave by the Irish High Court to act as an Amicus Curiae (or friend of the Court) in the case. The CJEU recognised UNHCR as an Intervener when the case was referred to the CJEU. UNHCR made written and oral submissions before both the Irish High Court and the CJEU. UNHCR Ireland was represented by Gerard Hogan, Senior Counsel, Paddy Dillon-Malone, Junior Counsel, Sarah Houlihan and Claire Hogan, Barristers-at-Law and Brian Matthews of Millet Matthews Solicitors.

In brief, the judgment contained the following points of note:

• The Court of Justice of the European Union in Luxembourg has found that EU Member States may not transfer asylum-seekers to another EU Member State responsible for determining their asylum claim under the Dublin II Regulation if he or she would face a real risk of being subjected to inhuman or degrading treatment (Article 4 of the Charter of Fundamental Rights of the European Union).

• In such cases, EU Member States must themselves examine the asylum claim in accordance with the “sovereignty clause” of the Dublin II Regulation (Article 3(2) of the Dublin Regulation) where there is no other Member State responsible for the examination of the asylum application or where determining which Member State is responsible for the claim would take an unreasonable length of time.

• The Court further found that Member States have a number of instruments at their disposal in order to evaluate the risk of inhuman or degrading treatment in the Member State responsible, including reports of international non-governmental organizations, reports and proposals prepared by the European Commission and documents prepared by UNHCR.

The case dealt with important questions regarding the lawfulness of transfers of asylum-seekers to Greece under the Dublin II Regulation. Similar questions were considered by the European Court of Human Rights in Strasbourg in early 2011 in the case of M.S.S. v. Belgium and Greece.

UNHCR has urged governments to take careful note of this important decision and welcomed the affirmation by the Court of Justice that EU Member States are bound by the Charter of Fundamental Rights when applying the Dublin II Regulation. This means that individual asylum-seekers should not be sent back to countries were they face a real risk of inhuman or degrading treatment.

You can find the full judgment at this link.