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.

Rwandan refugees reluctant to repatriate

(IRIN) – Rwandans who fled the 1994 genocide and sought asylum in other countries will lose their refugee status by the end of June 2012 if the countries hosting them follow a recommendation by the UN Refugee Agency (UNHCR).

This report online: http://www.irinnews.org/report.aspx?reportID=94029

Search for refugees who came to the UK in the 1960’s

Do you know any refugees who came to the UK in the 1960’s?

The Refugee Council is looking for someone who may be willing to take part in a short film we are making for our 60^th Anniversary year and to commemorate the 60^th Anniversary of the UN Convention for Refugees.   We are looking for someone who came here as a refugee in the 1960’s and settled here.

In practical terms it will involve a couple of hours of a person’s time at a location convenient to them.

It would involve talking about the person’s experience of coming to the UK, and how the person was able to rebuild their life here thanks to the UN Convention for Refugees.  The actual camera time will be very short because this is only a short film.

The main aim of our film is to highlight the lives saved by the UN Convention over the last 60 years and in the future, as well as to highlight the work of the Refugee Council. We plan to raise awareness’ and to help us build support for the important work we do.

Please email us as soon as possible if you can help!

US$7m spent on refugees

The cash-strapped government of Zimbabwe has asked for US$7 million to cater for asylum seekers at its Tongogara Refugee Camp in Chipinge, the United Nations High Commissioner for Refugees (UNHCR), has confirmed

Read more

Source: The Zimbabwean

UNHCR concerned over allegations of Somali mercenaries

(IRIN) – The UN Refugee Agency (UNHCR) says it is concerned by opposition media reports alleging the Yemen government is recruiting Somali refugees as mercenaries to help put down a growing protest movement demanding the resignation of President Ali Abdullah Saleh.

Read report online

UNHCR concerned for safety of asylum seekers, refugees in Libya

UNHCR is increasingly concerned about dangers for civilians and especially for asylum-seekers and refugees in Libya. Many may inadvertently be caught up in the violence, UNHCR said.

“We have no access at this time to the refugee community. Over the past months we have been trying to regularize our presence in Libya, and this has constrained our work. Some of the reports we are getting from third-party sources are very worrying. A journalist has passed information to us from Somalis in Tripoli who say they are being hunted on suspicion of being mercenaries. He says they feel trapped and are frightened to go out, even though there is little or no food at home,” UNHCR spokesperson Melissa Fleming said.

She added: “Prior to the current unrest UNHCR had registered over 8,000 refugees in Libya, with a further 3,000 asylum-seekers having pending cases. The main places of origin are Palestine, Sudan, Iraq, Eritrea, Somalia and Chad. We ask all countries to recognize the humanitarian needs at this time of all people fleeing targeted violence, threats, and other human rights abuses in Libya.”

Refugee Council conference agenda confirmed – 23 March 2011

The morning session of the conference will focus on the work of five refugee organisations from around the UK who have developed and delivered inspiring projects for the benefit of refugees and asylum seekers in their local communities. Participants include RAMFEL, NILE African Development Organisation, Manchester Refugee Support Network, Churches Together Network and the Gateway protection programme. This will be followed by a panel discussion. Following the networking lunch, where delegates are invited to bring literature for display on the information stand, delegates will hear from the Keynote Speaker Roland Schilling, UNHCR Representative in London. This will be followed by a question and answer session to discuss challenges facing the sector and how to work more effectively together to protect refugees and asylum seekers. The panel will comprise Donna Covey, Chief Executive, Refugee Council, Roland Schilling, and Mike Kaye, Advocacy Manager, Still Human Still Here.

Please follow this link to book a place on the conference: http://www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/eventsAndtraining/Conference%202011%20booking%20form.doc?dm_i=I6P,D3L0,31R5LZ,11A6G,1

Refugee Week 2011 – coordination meeting

20th June every year is Refugee Day, and the week in which it falls is Refugee Week – this year running from: Monday 20th June to Sunday 26th June.

This year is also the 60th anniversary of the approval of the United Nations Convention Relating to the Status of Refugees, the international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum.

Refugee Week is a UK-wide programme of arts, cultural, educational and community events that celebrate the contribution of refugees to the UK, and encourage a better understanding between communities.

If you are interested in organising an event, or in getting involved in something organised by another organisation, then please come along to a ‘coordination meeting’ so we can hear your ideas, and so we can try to avoid having different events happening at the same time.

When: Wednesday 9th February 2011, 2pm
Where: Refugee Action: Chancery House, 7 Millstone Lane, Leicester LE1 5JN

If you are interested in getting involved but can’t make the meeting please let me know, and we’ll let you know when the next meeting is!

Gill
Development Worker

0116 2616222 / 07716 073403

[email protected]
[email protected]

Council of Europe: Protecting Refugees

The Protecting Refugees information pack, produced in 2010, is a joint initiative by the Council of Europe and the Office of the United Nations High Commissioner for Refugees (UNHCR).

This pack demonstrates not only the need to protect the rights of refugees, as millions continue to be forced from their homelands, but also the partnership between the Council of Europe and UNHCR and the role we can play, together, to help the refugees. It covers a range of important topics, such as asylum-seekers and detention, refugees and social and economic inclusion, refugees and violence, and stateless persons.

Click here for link

Refugees want to return, says UNHCR

(IRIN) – The number of Sri Lankan refugees wanting to return home since the end of the conflict in 2009 is increasing significantly, the UN Refugee Agency (UNHCR) says.

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