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The Refugee Crisis and Human Rights: Where Are We Now?

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About The Author

Miranda Yihan Xu (Guest Contributor)

Yihan has recently completed a Graduate Diploma in Law, while taking an internship in immigration and human rights law. Her main interests include refugee laws, nationality law and statelessness. She is currently working as a regulatory analyst in finance. Outside work and study, she enjoys theatres and Sudoku.

Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us—except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.

Khaled Hosseini

The play The Jungle in the Playhouse Theatre in London has touched audiences, functioning as a stark reminder of a period at the height of the refugee crisis in Europe back in 2016, where the French Authority cleared what was known as the ‘Calais Jungle’ refugee camp, once occupied by a large number of refugees fleeing to Europe via the Mediterranean Sea seeking a safer life.

Countries across the European Union have reacted differently to the refugee crisis. While there are national laws and policies in place, the EU has aimed to create a Common European Asylum System (CEAS), similar to what it has done with many other matters, such as border control and trade competition. Among the regulations passed, Regulation No. 604/2013 (the Dublin Regulation) functions to determine which EU member state is responsible for examining individual asylum cases. Questions of practicality, efficiency of the transfer system, and human rights compatibility have quickly arisen, especially during the period of high refugee influx in 2015/16. 

The Aim of the Dublin Regulation

The aim of the Dublin Regulation is not to better distribute asylum cases in the EU, but to quickly locate responsibility and achieve a common approach throughout all Member States. The practical application of the waterfall criterion in Chapter III of the Dublin Regulation allows one Member State to apply to transfer the asylum applicant to another Member State deemed responsible for looking at the application (the Recipient Member State). In most cases, the latter Member State will be the one into which the applicants first enter when they cross the border into the European Union illegally. The decision taken on the asylum application by the responsible State will then be recognised by the other Member States.

Although a few amendments have been made to the Dublin Regulation over the years to prioritise family unity – for example, by first looking to make the Recipient Member State that Member State in which the asylum applicants have relatives – the heavy burden of examining applications still falls on the Member States on the periphery of the EU, where it borders with the rest of the world. As such, many academics and policy makers have criticised the the Dublin Regulation as being more effective in causing slowness and inefficiency – especially during the crisis period – than achieving harmony.

For example, Dr Blanca Garcés-Mascareñas has argued that the Dublin Regulation does not work because it lacks fairness and efficiency: all the asylum applicants are transferred to a small number of countries at the border. Furthermore, she observes that transfers under the Dublin Regulation have in many cases infringed the wellbeing and fundamental human rights of the refugee applicants, on the grounds that not all Member States have equivalently adequate asylum procedures and different conditions of the applicants’. 

The Case Law

Despite the Dublin Regulation being a product of EU law, it is unsurprising that removal or transfer cases often cross paths with the European Convention on Human Rights (ECHR).

The ECHR safeguards fundamental human rights across 47 countries in Europe, and it covers all individuals within these jurisdictions, regardless of their nationalities. Legislation developed in the EU also affords protection of fundamental human rights and is compatible with the ECHR. Cases decided in the European Court of Human Rights (ECtHR) provide guidance to policy makers and implementers on the rights protections afforded by the articles of the Convention.  This guidance has included the way refugee transfers should be carried out under the Dublin Regulation. However, seeking protection from the Court is a lengthy and difficult process. Articles 34 and 35 outline the criteria that an individual must fulfil in order to bring an admissible claim under the Convention. Additionally, for an individual to make a claim to the European Court of Human Rights they must have already suffered harm in some way: the Court can then offer redress for the breach of their rights as enshrined under the Convention. In relation to the Dublin Regulation, the ECHR therefore offers a very limited opportunity to ensure that rights of asylum seekers continue to be safeguarded under the system implemented by the EU.  

A widely studied case concerning Dublin Regulation transfers in the ECtHR is M.S.S. v Belgium and Greece [2011]. The facts of this case attracted immediate attention: the applicant was returned to Greece by Belgian authorities but was not provided with basic living facilities, nor was he allowed to work. As later suggested by various reports, Greece was facing too large a number of refugees, and those refugees suffered destitution, homelessness and violence in Greece. Unfortunately, all these systematic failures by the Greek Authorities in dealing with asylum applicants were not considered by the requesting state prior to the Dublin Regulation transfers. In the European Court of Human Rights (ECtHR), the applicant argued that Greece had violated his rights under Article 3 ECHR. The other defendant, Belgium, was accused of exposing the applicant to such risks by returning him to Greece under the Dublin Regulation for the examination of his asylum application.

Dublin II v Dublin III

At the time of deciding M.S.S., the law in force was Dublin Regulation II, a previous version of the current regime.  In 2014, Dublin Regulation III (“Dublin III”) came in force, making a few changes to the responsibility waterfall. Dublin III emphasises the best interests of minors and family unity in making transfer decisions. It also provides the state with an opt-out opportunity, whereby the state can voluntarily examine the application regardless of where the responsibility resides under the Regulation. However, on the face of Dublin III, there is no requirement for a state to examine reception conditions in another state before requesting a transfer of asylum applicants. The default position, analogous to other fields such as trade or criminal law, is the idea of mutual trust. Member States assume that any other Member State will be a safe country for the asylum applicants, and that they will protect the applicants’ fundamental rights. Trusting the quality of each other’s national legal system is an important foundation for member states to cooperate and enable Dublin transfers. The actual practices of a Member State can therefore continue to go overlooked.

Mutual Trust and Rebuttal

Various EU Directives have been passed by the EU to further compliance with fundamental human rights: these set minimum requirements for granting or withdrawing international protection for asylum seekers (Directive 2013/32/EU) and reception conditions of protection seekers (Directive 2013/33/EU). Based on mutual trust, member states trust each other to have followed these requirements to an adequate standard. The European Court of Justice (ECJ) has shown support for this principle of ‘mutual trust’ as can be seen in Abdullahi v Dundesasylamt [2013].

However, without any further harmonisation of national asylum policies across the EU, implementation of those Directives relies largely on individual Member States. Prof. Spaventa notes that the mutual trust of human rights compliance is a legal fiction. This creates another question in implementing Dublin transfer mechanism – is the mutual trust presumption rebuttable and can transfer be prevented as a result? What has been observed earlier in the English law is that such presumption is irrebuttable. Even if noticing the flaw of this approach, the asylum procedures laid down by the national laws do not provide a simple way for the English court to assess if the receiving state is really safe.

To our relief, later developments establish the possibility of rebutting the mutual trust presumption, and resisting transfers if there is any human rights concern. Article 3 of the Dublin Regulation III has recognised that in cases where there are systemic deficiencies in dealing with asylum seekers within the receiving Member State, transfers should not take place. In 2011, N.S. v SSHD [2011] was referred to ECJ by the UK for an opinion; the Court confirmed that a blind trust is not desired and mutual trust should be a rebuttable presumption. – at least procedurally.However, the two courts – ECJ and ECtHR – still have different approaches when considering what would result in a rebuttal of the presumption. The Advocate General of the ECJ suggested that rebutting the mutual trust and suspending transfers will only take place when systematic deficiency is observed.

In contrast, in Tarakhel v Switzerland [2014], the ECtHR again expressed doubt over whether the Dublin Regulation transfer regime is compatible with human rights. A family of eight asylum seekers from Afghanistan was returned to Italy from Switzerland; the Court found they had experienced inhuman treatment because of the poor reception conditions in Italy. Though the situation in Italy was not systematically poor – unlike in Greece in M.S.S.– the Swiss authority was held to be in breach of Article 3 ECHR, as they failed to ensure that basic facilities were guaranteed to these individuals. The decision in this case therefore went a step further in challenging transfers under the Dublin Regulation: it is clearly now not necessary to establish systematic deficiencies in the receiving Member State’s asylum procedures in order to find that a transfer is in breach of Article 3 ECHR, and subsequently object to it.

Following Tarakhel, despite the Advocate General’s opinion on how mutual trust should operate, the ECJ gave the same opinion in line with the ECtHR in PPU C.K. and othersv Supreme Court of Republic Slovenia [2017]. It held that the same standard of human rights should be met when working within the Dublin Regulation system, and transfers should not take place even if only the particular circumstances create a real risk of inhuman or degrading treatment. In other words, transfers could still be prevented where there is no systematic deficiency but a real risk nevertheless exists. In PPU C.K., there were no obvious flaws in the asylum system of the receiving State, Croatia, and the risk was as a result of the applicants’ bad health. 

Cases like these make it clear that Member States need to identify whether a real risk of inhumane or degrading treatment exists on an individual basis before sending asylum seekers to another Member State. However, relying on Convention rights to prevent inadequate transfers, where applicants could be exposed to inhumane or degrading treatment, undermines the very efficiency that the Dublin regulations sought to establish. As we have seen from the cases of Greece and Bulgaria, not all countries have the same reception conditions. A State’s assessment of whether an asylum applicant’s human rights will be safeguarded will often trigger lengthy appeals, with applicants trying to argue against the transfer, making the whole process complicated and time consuming. After all, there is no fast-track solution to a human rights problem. Individual assessments of whether human rights will be safeguarded also do not address the larger issue.  If the Dublin transfer system was designed with considerations such as the receiving capacity of a State and the burdens upon it in mind, allegations of the violation of human rights would occur less frequently. Both efficiency and effective human rights protection therefore demand that the burden borne by the States of first entry to be redistributed. The Dublin Regulation system was created to achieve unity and efficiency, but this aim seems to be largely defeated in practice.

Conclusion

It therefore seems that there is not much “mutual trust” between  Member States – the fundamental principle upon which the Dublin Regulation system initially intended to operate. In addition to reception conditions, different Member States who apply for transfers have different procedures for detention pending transfers, which increases the possibility of the risk to the rights of asylum seekers. Different Member States also have different policies on assessing the actual asylum applications.

Some of the countries on the border who are responsible for examining large numbers of applications under Dublin Regulation have greater difficulties in managing this process. Human Rights Watch has reported issues including prolonged detention in Greece and Hungary, applicants being returned to third countries without getting their cases examined in Croatia, high numbers of stateless people in Estonia and Latvia, the destruction of the Calais refugee camp on the French border ordered by the national court etc. (Human Rights Watch Report 2017) On the implementation front, Germany has suspended Dublin transfers of Syrian refugees in 2015, and by emphasising the guarantee of asylum standards they have practically suspended transfers to Hungary following the UNHCR’s finding of worsening conditions there in 2017.

In addition, fairness and equal share of responsibility should be put into the picture in order to reduce opposing and defensive responses within the Union. It is an interesting observation that the human rights jurisprudence could potentially re-distribute this responsibility, but it would be ideal if the system could integrate the human right concerns to achieve similar results before going to ECtHR. Asylum laws should therefore be harmonised at a national policy level, which would provide a solid base for mutual trust, improve corporation and reduce applicants’ suffering. The EU Parliament is pushing through proposals to reform the asylum system in the EU. Hopefully we will see a better Dublin system following those efforts.

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Tagged: European Union, Immigration, International Law, Rule of Law

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