Brussels, 22/12/2011 (Agence Europe) - An asylum seeker must not be transferred to a member state where he risks being subjected to inhuman treatment, the Court of Justice ruled on Wednesday 21 December (Cases C-411/10 and C-493/10). Moreover, it found that EU law does not permit a “conclusive presumption” that member states observe the fundamental rights conferred on asylum seekers.
This ruling is important as it brings into question the Dublin II regulation- Regulation (EC) 343/2003 which states that, when an asylum seeker enters the EU, the member state responsible for examining the asylum application is the one by which the asylum seeker entered. In these cases, the court was to rule on Afghan, Iranian and Algerian asylum seekers arrested in the United Kingdom and in Ireland after illegally entering the EU through Greece. In line with the regulation, the authorities of these two countries transferred foreign nationals to Greece, which has competence in hearing their asylum applications. The foreign nationals appeal claiming that their fundamental rights had not been respected, and the Court found in their favour.
The Court said that member states must not transfer an asylum seeker to the member state indicated as responsible “where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment”. It added that, subject to the right itself to examine the application, the member state which should transfer the applicant to the member state responsible under the regulation and which finds it is impossible to do so, must examine the other criteria set out in the regulation, “in order to establish whether one of the following criteria enables another member state to be identified as responsible for the examination of the asylum application”. In that regard, it must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed and, if necessary, it must itself examine the application. (FG/transl.rt)