NS v UK: removals under the Dublin II regulation

Trouble in Greece

In the case of NS v UK (C-411/10) (see here for FM’s earlier alerter post), the Court of Justice of the European Union (CJEU) held that the transfer of an asylum-seeker from one EU Member State to another under the Dublin II regulation is not permitted where a failing asylum system in the receiving State creates a risk of inhuman or degrading treatment. The case is one of a series of cases brought in relation to the difficulties faced by asylum-seekers in the EU.

The applicant was an Afghan asylum-seeker residing in Britain who first entered the EU through Greece.  He resisted his transfer to Greece under the Dublin II regulation on the basis that the asylum situation there (described by UNHCR as a ‘humanitarian crisis’) would lead to a breach of his fundamental rights.  The Dublin II regulation determines the Member State responsible for examining an asylum claim within the EU.  It provides that, under normal circumstances, an asylum-seeker’s application should be determined by the first Member State in which they arrive and includes a mechanism for removal to that country. The Dublin system is based upon ‘mutual trust’, an assumption that all Member States respect and implement EU law, including the protection of fundamental rights.

The CJEU’s judgment emphasises that mutual trust is essential to the Common European Asylum System but recognises that mutual trust cannot be blind trust where breaches of fundamental rights are concerned. The Court therefore held that a Member State is prohibited from transferring an asylum-seeker to another Member State under the Dublin II regulation:

where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. [para.94]

In practice, this means that removal will be unlawful in very limited circumstances. Only a real risk of a breach of Article 4 of the Charter will be sufficient to meet the test.  It is clear that even serious breaches of EU Directives which lay down minimum standards for the reception and treatment of asylum-seekers will not amount to grounds for resisting transfer under Dublin II unless they also constitute a breach of Article 4.

The CJEU ruled out the use of a conclusive presumption that an asylum seeker’s fundamental rights will be respected upon return to another Member State.  However, Member States are not prevented from operating a rebuttable presumption.  It appears that the burden of rebutting the presumption lies on the asylum-seeker.  It is less clear just what evidence the asylum-seeker must present in order successfully to rebut it.

The applicant in this case was assisted by the judgment of the European Court of Human Rights (ECtHR) in MSS v Belgium and Greece which held: (1) that the failing asylum system in Greece posed a real risk of refoulement, (2) that living and detention conditions for asylum-seekers in Greece amounted to inhuman and degrading treatment and (3) that because the Belgian authorities knew or ought to have known these facts, they breached Article 3 of the European Convention on Human Rights (equivalent to Article 4 of the Charter) by returning the applicant to Greece.

The CJEU points out the sources of evidence considered by the ECtHR in MSS v Belgium and Greece enable Member States to assess compliance with fundamental rights.  The CJEU specifically refers to Commission reports evaluating the Dublin system that are indirectly addressed to Member States through their participation in the Council of the European Union.  It also refers to correspondence between UNHCR and the responsible Belgian minister.  The sources referred to by the CJEU serve to hilight the disparity in information and resources available to asylum-seekers by comparison with Member States.  This is the problem posed by a rebuttable presumption of compliance with fundamental rights, where the burden of rebutting that presumption is placed on the asylum-seeker.

The decision in NS v UK tightly limits the circumstances in which transfer under the Dublin II regulation can be resisted.  Nonetheless, the impact of this decision will be considerable given the large numbers of asylum-seekers that enter the EU through Greece.  There is also evidence to suggest that the strict test laid down by the court may also be met by the asylum stuation in other EU border countries such as Italy and Cyprus, almost certainly reopening the litigation over removals to those countries.

The court is clear-eyed about the difficulty of establishing harmonised standards for asylum across the EU.  This may be one reason why the bar for challenging removals is set so high, despite the potentially serious impact on asylum-seekers when harmonising measures relating to their reception and treatment are breached.  Ultimately, the credibility of the Dublin system and of the Common European Asylum System itself is contingent upon harmonised substantive and procedural standards for asylum.  In reality, that this is far from being achieved is a significant cause behind the secondary movement of asylum-seekers within the EU; precisely the issue the Dublin II regulation seeks to address.

Asylum seeker fell from balcony after taunts

An asylum seeker, who climbed on to a balcony of a Nottingham tower block after his claim was refused, fell to his death after a ‘baying’ crowd urged him to jump, an inquest has heard.

Read more

Source: BBC News

Zimbabwean man jumped in front of train

A coroner’s court has been told how a failed Zimbabwean asylum seeker, Alexander Muchero, took his own life by jumping in front of a train in Birmingham.

Read more

Source: Birmingham Mail

Asylum seeker faces deportation despite rape allegations

A female asylum seeker, who is currently on suicide watch in Yarl’s Wood, faces deportation to Nigeria despite an ongoing police investigation into allegations that she was raped in the UK.

Read more

Source: Guardian

Asylum seeker faces deportation to war zone

A LIBYAN asylum seeker who has been living in Sheffield for nine years has been told he will be deported back to his homeland in the midst of a civil war.

Anti-Gaddafi activist Ali Bashir, aged 47, fled his country in 2002 after the Libyan regime targeted him for his views.

He says he had to bribe Libyan airport officials to allow him to board a flight after he learned his name was on a list of activists wanted by the government.

Full story

Source: The Star

Asylum seeker detained again

An asylum seeker who won a last-minute reprieve when he was due to be deported to Afghanistan in November has been detained again.

Reza Yosefi, 20, has lived in Sheffield for the past four years and claims he has never lived in Afghanistan, though his parents were born there.

The European Court of Human Rights had previously blocked his removal in November “until further notice”.

A spokesman for the UK Border Agency said that ruling had now been lifted.

The agency said Mr Yosefi was not in need of protection.

Mr Reza said he felt “confused and scared” after being detained.

Campaigner Marishka Van Steenbergen said he was held after signing on at the Home Office base at Vulcan House, Sheffield.

Read more

Deportee nearly smothered by UKBA

The 38-year-old Bienvenue Mbombo, who faced deportation to Nairobi, said the UK Border Agency guards held him down with a knee on his chest almost blocking his breathing as he refused to be sent back to his home country on a Kenya Airways flight.

Read more

Source: Press TV

My new year’s resolution

Reetha Suppiah, asylum seeker from Malaysia

My wish for 2011 is that we should not be deported. Earlier this year I was taken to Yarl’s Wood with my sons – aged 11 and 22 months at the time – and held for 18 days. My lawyer is now taking the government to court over their treatment. I wish that women and children who flee here for safety should be treated with respect. That is all I am asking for in 2011, a safe place for me and my boys.

As told to Natasha Walter, founder of Women for Refugee Women

Asylum seeker’s deportation halted after SA intervention

A Zimbabwean asylum-seeker, whose deportation from Britain was halted when his wrist was broken while he was being restrained by security guards, has been released from detention after intervention by the South African government.

Khuluza Mlotshwa, 31, claims he was assaulted by security guards in June when the UK Border Agency attempted to deport him on the grounds he was a South African citizen. A second deportation to South Africa was aborted last month after his allegations of abuse were reported by The Independent.

Read more

Source: The Independent

Two convicted for racial assault on asylum seeker

TWO St Budeaux men asked an Eritrean asylum seeker for money and attacked him when he didn’t pay up, a court heard.

The 27-year-old victim and a friend had collected a female friend from the bus station and were walking home through Mayflower Street at around 11pm on Sunday, February 7.

They were confronted by Michael Mooney, who asked the man for money, racially insulting him and punching him in the face when he didn’t pay.

Read more

Next Page »