Brussels, 14/11/2013 (Agence Europe) - Where a member state may not transfer an asylum seeker to the state competent to examine his application because of a risk of infringement of his fundamental rights, the member state is required to identify another member state as responsible for the examination. It can also examine the application itself but it is not obliged to do so.
This is the main thrust of the ruling delivered on Thursday 14 November by the European Court of Justice (case C-4/11) in response to a request for interpretation of the Dublin II regulation (Ed: Regulation 343/2003 - appointing the relevant member state for examining a request for asylum) from the Hesse Regional Administrative Court (Germany). This court was hearing an appeal by Iranian asylum seeker who had been sent by the German authorities to Greece (the country in which he entered the EU and, under the regulation, the only appropriate authority for examining his asylum application) and then sent back to Germany, following a legal decision recognising the risks to the asylum seeker's fundamental rights and his right to have his request for asylum examined in Germany. The German court asked the European Court of Justice whether Dublin II gives the asylum seeker the right to demand that the member state examines his application if that state cannot transfer him, because of a risk of infringement of his fundamental rights.
In its judgment, the Court notes, first of all, that a member state is required not to transfer an asylum seeker to the member state initially identified as responsible if there are “substantial grounds” for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment. In the case of Greece, these grounds are the “systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers”. Thus, the Court points out, faced with such a situation, a member state (Germany) may decide, in accordance with the regulation, to examine the application itself. However, the Court makes clear that, if that state does not wish to avail itself of that right, it is not, in principle, required to do so. In this case, it will have to identify the member state responsible for examining the asylum application, in compliance with the criteria in the regulation. If it does not succeed in so doing, the first member state with which the application was lodged is to be responsible for examining it. Lastly, the Court states that the member state in which the asylum seeker is located must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the member state responsible which takes an unreasonable length of time. Accordingly, if necessary, it must itself examine the application.
The Commission spokesperson indicated that, in connection with this judgment, it would not be amending the Dublin II asylum mechanism, given that the regulation already covered the transfer of a refugee from one member state to another so that the latter could examine the request, “in full respect of human rights”. The spokesperson acknowledged the Commission's concern about the conditions affecting the admission of refugees into Greece and pointed out that an infringement procedure had been opened for that reason against the country and that the Commission and Greek state were working to develop a genuine asylum system, “starting almost from scratch”, with a whole raft of measures (funding reception centres, legal and administrative cooperation, etc.). (FG/transl.fl)