UNHCR: The UN Refugee Agency - United Kingdom

On 21 December, the Court of Justice of the European Union in Luxembourg ruled 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 where there are systemic flaws in the asylum procedure and reception conditions for asylum applicants that may result in inhuman or degrading treatment, according Article 4 of the EU Charter.  

Under the Dublin Regulation, an asylum seeker has regularly to apply for asylum in the first EU country in which they arrive. This was challenged in the UK courts by the case of ‘NS’, an Iraqi man who entered the EU via Greece but was expelled to Turkey, where he was held in detention for two months in woeful conditions. Having escaped detention, he finally made his way to the UK, where he lodged an asylum application. 

Following the judgement in the case of NS v. Secretary of State for the Home Department (C-411/10) and ME and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (C-493/10), EU Member States must now examine each asylum claim in accordance with the “sovereignty clause” of the Dublin II 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 decision challenges the notion that the Common European Asylum System can be solely “based on mutual confidence and a presumption of compliance by other EU Member States” where fundamental rights are concerned. The EU Court of Justice found that “mere ratification of conventions by a Member State cannot result in the conclusive presumption that a State observes those conventions” noting that the presumption that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as “rebuttable”. 

The EU Court of Justice 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. 

Similar questions were considered by the European Court of Human Rights in Strasbourg earlier this year in the case of M.S.S. v. Belgium and Greece, in which UNHCR also intervened as a third party. 

UNHCR urges governments to take careful note of this important decision. We welcome the affirmation by the EU 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.

UNHCR’s written and oral interventions are available here

The full text of the judgment is available here