Vulnerability, the Right to Asylum and the Dublin System

By Maria Hennessy

Legal Officer at the Irish Refugee Council  Independent Law Centre . Previously a Senior Legal Officer at the European Council on Refugees & Exiles. 

Recent jurisprudence from the European Court of Human Rights has called into question the compatibility of the Dublin system with the rights of inherently vulnerable individuals, in particular children seeking asylum. On November 4, 2014, the Grand Chamber issued its seminal decision in Tarakhel v. Switzerland, which examined Switzerland’s compliance with the European Convention on Human Rights (ECHR). The decision focused on the transfer of a family seeking international protection from Switzerland to Italy under the Dublin II Regulation for and the examination of their protection applications.

The case of Tarakhel

The case concerns an Afghan couple and their six minor children. The family alleged that their removal to Italy would result in a violation of Article 3, Article 8, and Article 13 (which, in this case, necessarily engages Article 3) of the ECHR , because they would be subjected to inhuman and degrading treatment due to the systemic deficiencies in the Italian reception system. The Grand Chamber found that there would be a violation of Article 3 of the ECHR if the family were returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the family would be cared for “in a manner adapted to the age of the children” and “kept together.”[1] The Court noted that evidence concerning the Italian reception system raised serious doubts about the country’s capacity to provide adequate facilities for asylum seekers and suggested many asylum seekers returned to Italy “may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions.”[2] The Court found that this evidence could not be dismissed as unfounded. Thus, the Court held that the Swiss authorities were obliged to obtain individual guarantees from their Italian counterparts that the family would be received in facilities and in conditions adapted to the their special circumstances upon their arrival in Italy.

In coming to its conclusion, the Court affirmed the finding in M.S.S. v. Belgium & Greece that “considerable importance should be attached to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection”. The Tarakhel Court placed a special focus on the children concerned and held that:

[I]t is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant…Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum seeker status.[3]

The Court also noted that under the Convention on the Rights of the Child (CRC), children seeking asylum should enjoy special protection and humanitarian assistance, irrespective of whether they are accompanied. Furthermore, the Court affirmed that the correct standard in assessing the risk upon transfer to the responsible Member State is the Soering v the United Kingdom standard, “where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment.” The Court also clarified that the source of the risk does nothing to alter the level of protection guaranteed under the Convention, or Convention obligations, thereby rejecting the test of “systemic deficiencies” set out in the leading CJEU decision of NS/ME. Such an approach is in line with the UK Supreme Court decision in R (on the application of EM (Eritrea) v. SSHD. In Tarakhel, the Court emphasized the requirement for a thorough and individualized examination of the situation of the person concerned and the obligation to suspend removal if there are arguable grounds of a risk of inhuman or degrading treatment in the responsible Member State.

Case commentary with respect to vulnerable persons

Before examining the ruling’s impact on the operation of the Dublin system, it is important to note two observations on the Court’s analysis. The Court, without reason, passed over the opportunity to engage Article 8 ECHR rights concerning family life.[4] Therefore, the ambit of protection provided for private and family life rights under Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights still needs to be clarified by the Court. The Court also failed to elaborate on the obligations of Member States with respect to the CRC. Instead, the Court merely observed that the CRC encourages States to take appropriate measures for children seeking asylum. This is in contrast with other Strasbourg jurisprudence, like Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, where the Court explicitly referred to the best interests of the child under Article 3 of the CRC.

Although the ruling addresses family and children, it is useful to consider its implications with respect to vulnerable persons more generally. It should be noted that individuals with other vulnerabilities will also be similarly affected in terms of requiring adapted reception facilities. The reasoning of the Court has a broader application beyond people with related profiles to the family in this case. Since the ruling, the Court revisited the issue of Dublin transfers to Italy in the context of a young, single man and found his complaint under Article 3 of the ECHR inadmissible due to a number of factors. These included his individual circumstances as an able, young man with no dependents.[5] It therefore stands that the specific vulnerabilities of an individual and their personal circumstances are central to determining which Member State is responsible for a person’s international protection applications, as well as, the conditions in the responsible Member State.

What, then, is meant by “vulnerable persons,” considering the fact that the court in M.S.S. v. Belgium & Greece deemed all asylum seekers to be vulnerable and in need of special protection? The recast Reception Conditions Directive states the term “vulnerable persons” includes, but is not limited to minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation.[6]

In order to take into account the specific situation of vulnerable persons, Member States have a duty under the recast Reception Conditions Directive and recast Asylum Procedures Directive to conduct an individual evaluation of the vulnerabilities of individuals in terms of their special reception needs and procedural needs.[7] Therefore, Member States must take active steps to assess the individual needs of asylum seekers and cannot rely solely on an asylum seeker’s self-identification to effectively guarantee her rights under EU law. Additionally, when an individual does raise a specific vulnerability, national authorities are required to pay due attention to their submissions and to examine carefully and impartially all the relevant aspects of her case in accordance with the EU legal principle of the right to be heard.[8] The recast provisions in both the Asylum Procedures Directive and the Reception Conditions Directive require Member States to conduct an assessment of applicants’ special individual procedural and reception needs, but the method of assessment is left to the discretion of Member States.

Once a person has been identified as vulnerable, the transferring Member State must then assess the conditions in the responsible Member State with respect to that person’s individual circumstances. Should arguable grounds for a risk of a violation of her rights arise with respect to the responsible Member State, then the authorities should seek individual guarantees from the receiving State that the reception conditions and procedure will be adapted in a manner which respects her special needs or otherwise suspend removal. Such an approach applies regardless of the source of the risk, as the Tarakhel Court clarified when it held that although systemic deficiencies in the asylum procedure or reception system are relevant, they are not determinative factors in assessing whether there is a real risk of inhuman or degrading treatment under Article 3 of the ECHR. This accords with jurisprudence on the Charter of Fundamental Rights, where, for example, the Court of Justice of the European Union has held that the Reception Conditions Directive must be applied in full observance of fundamental rights, including, in particular, Article 1 of the Charter whereby the individual’s right to human dignity must be respected and protected throughout the examination of the person’s claim for international protection.[9] Similarly, the reception system must be adapted to preserve family unity and respect the best interests of the child as held by the Court of Justice in Saciri and Others.

The Future?

This ruling will have a significant impact on the practical operation of the Dublin system insofar as it prohibits the mechanical application of the Regulation when arguable grounds of human rights violations in the responsible Member State are raised. National authorities will have to conduct a thorough, independent, and individualized assessment of the personal circumstances of the asylum seeker concerned as well as the conditions in the responsible Member State. Where there are substantial grounds for believing that an individual faces a risk of ill-treatment, the transferring Member State will have the duty of obtaining individual guarantees from the receiving Member State regarding the way in which that individual will be received and how the reception system will be adapted to her specific needs; failure to seek and obtain such assurances equals a violation of a human right. Therefore, a fundamental change of practice is required in terms of the assignment of Member State responsibility and the conduct of transfers. In this context, it is noted that Article 32 of the recast Dublin Regulation contains provisions on the exchange of medical data before a transfer is conducted for the sole purpose of ensuring the continued delivery of medical care or treatment.[10] However, this applies once the responsible Member State has been identified and determined and transfer is actually taking place at a designated time and location. The effect of Tarakhel is that prior to a transfer decision, there needs to be an individual assessment and communication sought on individual assurances prior to determining the responsible Member State in line with the hierarchy of criteria. Such an approach of seeking assurances prior to transfer decision has recently been adopted by the Swiss Federal Administrative Court in the case of E-6629.

Since the Tarakhel ruling, there have been varied responses at the national level from Courts and administrative authorities. For example, the German Minister of Interior has temporarily suspended all transfers to Italy for families with minor children until individual assurances are provided by the Italian authorities[11] whilst in the UK the upper Tribunal has held that the Strasbourg Court in Tarakhel was “not purporting to promulgate a general rule or principle that a sending State is required to secure specific assurances from the destination State as to the accommodation and the like”.[12] Overall, the Tarakhel ruling demonstrates the conflict between respect for the rights of individuals within the Dublin system and the insistence by some Member States to rely upon mutual trust, however rebuttable that trust might be since NS/ME. The Strasbourg Court is clear in holding that individual rights must take precedence and that there must be an individualized and thorough examination of persons’ individual circumstances within the Dublin system.[13] This marks a stark departure from Member States’ previous practice of automatic removals and it also calls into question, once again, whether there should be a fundamental reconception and overhaul of this system of assigning Member State responsibility to ensure respect for the right to asylum as guaranteed under Article 18 of the the Charter of Fundamental Rights.

 

[1] Tarakhel, Application no. 29217/12 at [122]

[2] Id. at [115].

[3] Id. at [99].

[4] In paragraph 55 of the judgment the Court merely stated that, “the Court, as master of the characterisation to be given in law to the facts of the case[..] considers it more appropriate to examine the complaint concerning the applicants’ reception conditions in Italy solely from the standpoint of Article 3 of the Convention.”

[5] ECtHR Admissibility Decision, A.M.E. v. the Netherlands, Application no. 51428/10, 13 January 2015.

[6] Article 21 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L180/96, 29.6.2013.

[7] Article 22 of the recast Reception Conditions Directive and Article 24 of the recast the Asylum Procedures Directive.

[8] CJEU, Case C-277/11, M.M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney-General, 22 November 2012 Para 88.

[9] CJEU, C-179/11, <a href="http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd908f24c427704dc3a46cbdc2512f3345 look at these guys.e34KaxiLc3qMb40Rch0SaxuPbxf0?text=&docid=127563&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=165913″>Cimade, Gisti v. Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration, 27 September 2012.

[10] Article 32, Exchange of health data before a transfer is carried out, Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)).

[11] ELENA Weekly Legal Update, German Ministry of Interior temporarily suspends transfers to Italy for all families with children, 5 December 2014.

[12] R (on the application of Weldegaber) v Secretary of State for the Home Department (Dublin Returns – Italy) IJR [2015] UKUT 70 (IAC).

[13] Id. at [11].

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