- Third Country Removals - Greece & all Countries

According to Advocate General Trstenjak, asylum seekers may not be transferred to other Member States if they could there face a risk of serious breach of the fundamental rights which they are guaranteed under the Charter of Fundamental Rights

In this context, the transferring Member State may proceed on the assumption that those rights will be respected; if that assumption is shown to be misplaced, however, that Member State is under an obligation to exercise its right to assume responsibility for examining the asylum application itself

Opinions of the Advocate General in Joined Cases C-411/10 N.S. v Secretary of State for the Home Department and C-493/10 M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform

Update - Third Country Removals

NS (Saeedi) - Dublin returns to Greece (and other countries . . . . )

This briefing on the judgement (Case C 411-10 .doc attached) is reprinted by kind permission:

Migrants' Law Project at Islington Law Centre
http://themigrantslawproject.org/

Following the tragic demise of IAS in July, the Migrants' Law Project at Islington Law Centre has now taken conduct of NS (Saeedi), the lead case on returns under the Dublin Regulation and whether the EU Charter of Fundamental Rights could be relied on in the UK. The reference to the Court of Justice (CJEU) had been made by the Court of Appeal in July 2010. It asked about the effect of the UK and Polish Protocol (so-called 'opt out') to the EU Charter of fundamental Rights in Dublin cases, the circumstances in which a risk of a breach of the Charter or of the asylum directives (the Reception, Procedures and Qualification Directives) would preclude transfer under the Regulation, and the compatibility with fundamental rights of the UK's third country deeming provision.

The case was heard before the Grand Chamber of the CJEU in Luxembourg on 28 June. Mr Saeedi was represented at the hearing by Mark Henderson and Alison Pickup (counsel) and Sheona York (IAS). 12 Member States intervened in the case along with UNHCR, the Equality and Human Rights Commission, and Amnesty International/AIRE. It was heard with an Irish reference ME (C-493/10). On Thursday 22nd September 2011, Advocate General Trstenjak has delivered her opinion.

The opinion is really positive - the AG holds that Member States are bound by the Charter to take responsibility for examining asylum claims where there is a serious risk that the responsible state under Dublin (in this case Greece) would not comply with asylum seekers' fundamental rights under the relevant articles of the Charter. She also holds that the deeming provision in the 2004 Act is incompatible with Article 47 of the Charter. (In Nasseri, the Court of Appeal and House of Lords had reversed the declaration of incompatibility granted by the Admin Court under the HRA in relation to the deeming provision.)  She holds that the UK and Polish Protocol is not an 'opt out' from the Charter for these Member States, and in general simply reiterates the provisions of the Charter itself.

The CA had referred seven questions and in summary the AG's opinion is that:

- Member States are implementing EU law when they decide whether or not to transfer an asylum seeker under the Regulation, so are bound to comply with all aspects of EU law, including EU fundamental rights, when making such decisions (the SSHD had argued in the Court of Appeal that they were not implementing EU law).

- Member States are not entitled to apply a conclusive presumption that other EU Member States comply with EU fundamental rights or with their obligations under the Directives (again, an argument advanced by the SSHD in the Court of Appeal, although not maintained by the UK government in the CJEU).

- There is a presumption that other EU Member States comply with EU fundamental rights but it is rebuttable and asylum seekers must be given an effective opportunity to rebut it in national courts (subject to which, the procedure for such cases is a matter for the national legal orders).

- Where there is a serious risk that an asylum seeker's rights under the relevant articles of the Charter will be violated in the responsible Member state, transfer is prohibited by the Charter. That includes rights under Arts 1 (right to dignity), 4 (right not to be subject to torture or inhuman or degrading treatment), 18 (right to asylum) and 19(2) (right not to be sent to another country where there is a real risk of torture/inhuman and degrading treatment).

- A serious risk of a breach of provisions of the asylum directives that did not breach the relevant article of the Charter would not prevent transfer - if "even minor infringements" of the asylum Directives would preclude transfer this would undermine the effective operation of the Dublin Regulation

- The deeming provision in the 2004 Act (which conclusively presumes that other Member States will not refoule a person contrary to the Refugee Convention or the ECHR) is incompatible with the right to an effective remedy in EU law (Art 47 of the charter)

- The UK & Polish Protocol to the Charter is not an 'opt out'. It reaffirms the horizontal provisions of the Charter itself and makes no difference to ability to rely on the relevant articles of the Charter.

The decision in NS will affect the legal position on transfers to countries other than Greece, where these raise issues of compliance by the receiving Member state with Charter rights.

Migrants' Law Project at Islington Law Centre