Brussels, 09/01/2012 (Agence Europe) - Will the ruling handed down by the Court of Justice of the EU (CJEU) on 21 December 2011 (see EUROPE 10522) on returning asylum seekers from one country to the member state which has competence under the terms of the Dublin regulation change the way member states operate? Or, indeed, will it be reflected in the asylum package which makes provision for review of this regulation? Very much hoping so are the European associations which have been campaigning for years to have the regulation amended and, like the Commission, have been pushing to have brought into European law a clause that provides for transfers to be suspended if the member state which is responsible for handling asylum requests cannot meet its responsibilities and would consign asylum seekers to degrading conditions.
This call has been made since 2008 but member states have never been keen on such a clause, going as far as to cut it out of discussions on the asylum package in December of last year, preferring, rather, an early warning system to detect the difficulties that member states may be finding. For these associations, and for the European Commission, too, this latest development, coming as it does from the CJEU, cannot be allowed to pass unnoticed.
In 2011, eyes were largely on Greece, which was going through very difficult economic and financial times and also experiencing a crisis in its asylum system. The system was inefficient - most asylum requests were turned down - and could place asylum seekers in situations of danger. The European Court of Human Rights (ECHR) delivered a decision against Greece, and, in passing, Belgium, which had transferred an asylum seeker to Greece, in January 2011.
Since then, all member states, under a moral obligation to the ECHR, have in theory suspended transfers of asylum seekers to Greece. They will not resume transfers until such time as Greece has improved its system. But how can this be monitored and how can it be ensured that member states do not decide to resume transfers when it suits them? How can it be ensured that transfers of asylum seekers to Greece or elsewhere are carried out on the basis of objective criteria that afford a proper assessment of the situation on the ground and of the risks run by asylum seekers?
At European level, the Dublin regulation contains no criteria of this sort and the CJEU ruling opens up the whole issue for debate, say both the associations, such as the European Council on Refugees and Exiles (ECRE), and the Commission. In general, ECRE says, member states are content just to check the fingerprint data, discover that the asylum seeker arrived in the EU by another country and simply send him/her back to that country, without even bothering to find out why the asylum request was submitted in that member state. There is no requirement to interview the candidate and neither is it certain that asylum seekers enjoy an effective right of appeal everywhere if they wish to challenge the transfer decision. The review of the Dublin II regulation in 2008 made provision for this opportunity to appeal, which would have the effect of suspending the transfer, a Commission spokeswoman said, but here again member states did not want the passage to be included.
For member states, the latest Court of Justice ruling, which made it clear that, before transferring an asylum seeker to another country, member states must first carefully assess the situation in that country, should not change much or have an impact on the asylum package and discussions on revision of the Dublin regulation. “The Court has not called the principle of transfers into question”, said a spokesman for one of the large member states, but it may perhaps make it “a little more difficult to return asylum seekers in practice”, he acknowledged. For Belgium, the rhetoric is the same: “the Dublin regulation is working well”, so there is no reason to change it or for any further discussion of a suspension clause. It is no longer even an issue, Belgium says, since “there are no more transfers to Greece”.
Member states already have a sovereignty clause in the Dublin regulation, anyway, which allows them to handle a request for asylum when the country to which the transfer is intended fails to respond. This is the clause that member states brought into play in 2011 after the ECRE rulings. Member states take the view, therefore, that, as this clause already exists, there is no need for any addition suspension clauses in the Dublin regulation.
Some believe that the CJEU recommendations may be taken on board by national governments. This could very well be the case in Belgium, for example, which might discuss possible criteria within the context of the bills being drafted on asylum policies and as part of the preparation of lists of countries of origin that may deemed as being safe. However, if there is to be any impact, it will only be felt at national level, and most probably not in the Dublin regulation.
This is not a situation that greatly enthuses the associations which regret that this sovereignty clause is under-used and which, as ECRE says, are waiting for the Commission, working alongside the new Malta-based Asylum Support Office, to become involved in the debate on the criteria that will ensure that asylum seekers in the EU can be transferred safely. (SP/transl.rt)