According to several judgements delivered on Tuesday 19 March (Cases C-163/17, C-297/17, C-318/17, C-319/17, C-438/17) by the Court of Justice of the European Union, an asylum seeker may be transferred to the Member State which is normally responsible for processing their application (or who has already granted them subsidiary protection) unless they is exposed to a foreseeable situation of extreme deprivation.
Case C-163/17. Mr Jawo, from Gambia, made his first asylum application in Italy, which was valid by way of his sea-borne entry. Having continued his journey, he made another asylum application in Germany, before German authorities ordered his removal to Italy.
According to Mr Jawo, such removal would be unlawful because there are systemic deficiencies in the Italian asylum procedure, the way in which asylum seekers are received, and the living conditions of persons enjoying international protection.
In 2016, the Swiss Refugee Aid Organisation warned specifically of the risk that refugees in the Italian peninsula faced, as they lived on the margins of society, were homeless, and were in poverty.
German courts have referred to the Court of Justice of the European Union about the interpretation of the so-called Dublin III Regulation (604/2013) and the prohibition of inhuman or degrading treatment enshrined in the Charter of Fundamental Rights.
In its judgment, the Court is of the opinion that it must be presumed that any treatment given by a Member State in respect of asylum seekers complies with the requirements of the Charter, the Geneva Convention, and the European Convention on Human Rights. However, the fact cannot be completely excluded that there might exist in a Member State a serious risk that the persons in questions may be subjected to inhuman or degrading treatment (cases C-411/10 and C-493/10, see EUROPE 10522/26).
The Court therefore considers that where a court hearing an appeal against a decision for transfer has evidence – produced by the applicant – whereby the existence of the risk of inhuman treatment in the other Member State can be established, it must assess the reality of failures, whether they be systemic or affecting certain groups of persons.
Such failures are only contrary to the prohibition of inhuman or degrading treatment when this reaches a particularly high threshold of severity. According to the Court, this threshold would, moreover, be reached when a person entirely dependent on public assistance is unable to meet their most basic needs such as food, water, and shelter and finds themselves in a situation that thus affects their physical or mental health.
The opinion of the European judge in respect of the present case, however, is that the mere fact that social protection and/or living conditions are more favourable in Germany than in Italy – the country responsible for Mr Jawo's asylum application – does not allow the conclusion to be drawn that the complainant would be exposed in Italy to a risk of inhuman or degrading treatment.
Cases C-297/17 and C-318/17. In these cases, stateless Palestinians who have resided in Syria were granted subsidiary protection in Bulgaria. Their asylum applications, which were subsequently lodged in Germany, were rejected.
The Court follows a similar reasoning to the first case.
In its view, the very fact that persons do not receive any subsistence benefit in the Member State that granted them subsidiary protection (or are recipients of such a benefit to a far lesser extent than in other Member States, but are not treated differently from nationals of that Member State), would lead to the finding that the applicant runs a real risk of inhuman or degrading treatment only if they are facing a situation of extreme material deprivation beyond their control. (Original version in French by Mathieu Bion)