Blog post written by Paolo Biondi, a RLI Research Affiliate and current PhD student at the School of Advanced Study, University of London.
This blog post analyses the recent approach of the European and national courts in interpreting the Dublin Regulation (DR) in the context of protection of fundamental rights. Starting from the case law on non-return cases and considering the emerging jurisprudence on the “entry” human rights principle, it suggests that practical and effective compliance with human rights has become a prerequisite for responsibility allocation.
The post reflects on the nature of the negative and positive obligations implicit in respect for fundamental rights and how they can challenge the current allocation of responsibility in the EU. It argues that a change in the vertical State-refugee relation, dictated by compliance with the fundamental rights (through the suspension of transfer or the duty to admit) can change the horizontal relation State-State and the way in which allocation of responsibility for refugee protection takes place.
- From Negative to Positive Obligations
The presumption of ‘equivalent protection’ among the EU countries is at the heart of the DR. This presumption makes it possible to determine and allocate responsibility for protection determination. However, after the M.S.S, N.S/ME and Tarakhel cases, a conclusive presumption of compliance is no more permissible.
The so-called “exit” human rights principle means that the discretion to allocate responsibility, by returning an applicant to another Member State under the DR, is subject to compliance with the Charter of Fundamental Rights of the European Union (Charter) and the European Convention on Human Rights (ECHR), in particular Articles 3 and 8 ECHR. In fact, both the Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECtHR) confirmed that Member States’ power to allocate responsibility for processing asylum claims under the secondary legislation is premised on the requirement that such decisions should not expose the applicants to a real risk of violation of the rights enshrined in the Charter or the ECHR.
However, recently it has also been suggested, drawing on the positive and preventive obligations intrinsic in the non-refoulement principle (Paposhvili, [175, 186, 193]; M.S.S. [357-59]; Tarakhel, [104-05]), Art. 3 ECHR (M.S.S. [55-56 and 332]), the respect of the Best Interest of the Child (BIC) and the right to family unity, that such State’s discretion can also be limited when regulating admission from one Member State to another. In the DR context this may result in the possibility to rebut the EU presumption of equivalent protection on entry; by either bypassing the DR initial procedure to promote a swift family reunification or to request the compulsory application of a DR provision on humanitarian grounds.
This positive obligation inherent in the soi-disant “entry” human rights principle, that was first established in the ZAT case, derives from the application by analogy of the jurisprudence relative to the non-return cases. In other words, the refusal to admit must not expose the applicant to a real risk of violation of the rights enshrined in the Charter or the ECHR, in particular Article 3 and 8 ECHR, and the substance and procedural machinations of the Regulation must adhere to Charter and the EU primary law. Therefore, both the exit and the entry human rights principles suggest that the allocation of responsibility can be outweighed by rights under the ECHR/ Charter/1951 Convention to guaranteed the practical and effective enjoyment of those rights.
- Access to Territory and the Emergence of the Entry Human Rights Principle
On the entry matter, the landmark ZAT case established that the qualified right to family unity in Article 8 ECHR operates in a manner which permits a total or partial circumvention of the DR procedures and mechanisms when there is a risk of violation of this right.
Interestingly, in respect of the presumption of equivalent protection on entry, in ZAT Art. 3 ECHR has been used to ascertain some risk related to the refusal to admit. In particular, the risk of trafficking as a result of the refusal to admit or the risk of ill-treatment due to poor reception conditions in the country of presence. This suggests a possible independent use of Art. 3 ECHR in view of its absolute nature. In ZAT, instead, Art. 3 ECHR has been used to prove that those risks can disproportionately interfere with Art. 8 ECHR, leaving vulnerable individuals in dangerous, degrading or humiliating conditions while awaiting family reunification. A similar interpretation has been followed recently in UK – AT and another (trafficking) and RSM (self-harm).
Hence from ZAT, the “entry human rights principle” emerged as a term of art, but it has also been now endorsed in other decisions. The entry human rights principle considers international protection in a way that limits the State’s margin of appreciation in restricting admission. It does so by regulating access to protection proportionally to the procedural and/or material conditions prevailing in a country or the risk the applicant must undergo to access effective and timely protection and family unity.
- The Jurisprudential Doctrine Descending from the ZAT Case
Following the ZAT case, the BIC tipped the scale towards family unity in several other cases. In UK – AT and another the UK Upper Tribunal found that by virtue of international law (UNCRC) and Art. 24 of the Charter, States must have regard to the BIC in family unity decisions on admission, even when children are not in their territory.
The decision in SA & AA, with reference to ZAT, established that the children’s mental health, the risk of self-harm or suicide and the speed at which the DR process is capable of providing the ultimate goal of family reunification, required an expeditious reunification through the duty to admit.
In ZAT, as well as the other cases, entry has been allowed on the basis of Art. 8 ECHR, alone or in conjunction with Art. 2 or 3 ECHR. Therefore, Article 2 or 3 ECHR may be used for the proportionality test relevant to Article 8 ECHR to reinforce the right to family unity which, contrary to the common practice, should be protected the same way in relation to removal as with entry. Nevertheless, in consideration of its absolute nature, AG Megozzi stressed in the PPU X. and X. v. État Belge opinion  that Art. 3 ECHR can also be used independently.
Accordingly, the jurisprudence demonstrates that use of the DR as a responsibility allocation mechanism is conditional upon the respect of fundamental rights, in particular Art. 3 ECHR. Otherwise, an alternative allocation of responsibility must take place in order to safeguard fundamental rights. Hence, the failure of a Member State’s asylum system is not opportune, but even less the lack of shared responsibility, as in such cases the responsibility is shared among fewer countries. In fact, in this case allocation of responsibility takes place only among the countries with functional systems and through Convention rights rather than the DR criteria.
- The Solidarity Discourse
Regarding shared-responsibility, in another recent landmark case RSM, while it has been ordered an expeditious family reunification again, it was also clarified that Art. 17 DR is a justiciable right. Accordingly, it should be particularly relied upon in circumstances where one of the overarching values of the DR, namely expedition, is not being fulfilled in the procedures of the host Member State. Most importantly, however, the court stressed that the interpretation of Article 17 DRIII must be compatible with the broader construction of the DR to favour the principles of solidarity and mutual trust with the possibility to impose positive obligations which reduce the State’s margin of discretion when requested to make use of Art. 17 DR III.
In the past, the CJEU in NS/ME  had already made clear that the power conferred by DR must be exercised in accordance with the EU primary law. Hence, Member States must exercise discretion on the allocation of responsibility complying with the Charter’s fundamental rights, the rules of the 1951 Convention and the principle of solidarity entrenched in Art. 80 TFEU. Doing otherwise will result in the collapse of an increased number of asylum systems and the impossibility to allocate responsibility to the corresponding countries.
in June 2017 a very similar concern was expressed by the AG Sharpston in her timely opinion in the cases C-490/16 and C-646/16. The AG suggested that the DRIII, as it now stands, is not aimed at ensuring a sustainable sharing of responsibility in response to an exceptional inflow of persons. In such circumstances, secondary movements, including from countries under pressure, should be tolerated by actively facilitating both entry into and transit across territories to promote a more equitable distribution rather than concentration in few border countries. Therefore, in such exceptional circumstances, Member States should be able to derogate to the Schengen Borders Code to allow borders crossing on humanitarian grounds or because of international obligations.
The AG reiterated that the unprecedented inflow of persons into the Western Balkans, and the absence of any derogation to the existing criterion in the DRIII to cover such situations, means that border countries are deemed to be responsible for an excessive burden with a resulting risk that they will simply be unable to cope with the situation to comply with their obligations under EU and international law. Accordingly, those applications should be examined by the first Member State in which those applications are lodged, as provided in Article 3(2) of the DR III. A similar principle has been recognised in the N.S/M.E case [97, 98, 108] and, even if in a different context, in MA, BT, DA for unaccompanied children.
This interpretation is consistent with both the exit and entry jurisprudence which require that, when the respect of fundamental rights cannot be granted, certain DR provisions must be derogated from to favour others. Like in the Tarakhel case, where the application of Article 3(2) of DII became compulsory in relation to Art. 3 and 8 ECHR; or in K v. Bundesasylamt and RSM where the DRIII discretionary clause has become a compulsory criterion for the assignment of responsibility derogating to the standard criteria.
Therefore, under both the exit and entry human rights principles the allocation of responsibility is conditional upon the respect of fundamental rights. As a consequence, when in the country of return or presence there is a risk of violation of the applicant’s rights, other Member States must be instead responsible for processing the asylum claim.
The interpretation and implementation of the DR can generate a system that leads to imperfect solutions, undermining its very existence and scope. In this context, the European and national courts have reminded us that the DR’s implementation must be respectful of individual’s rights, and to do so, facilitate a fairer distribution even if a legal obligation of solidarity does not exist. Because, as this analysis evidenced, fairness cannot be ignored in a society of inter-dependent States.
The DR can be used as an instrument of responsibility allocation only when it is respectful of the norms of IRL and IHRL. The emergence of the new jurisprudence on the entry human rights principle, similarly to the case law on exit, is challenging the EU and the Member States’ margin of appreciation in migration control again. Such situation might lead to a de facto right to perform secondary movements or enforce an obligation to share responsibility through the existing EU law and international obligations unless appropriate reforms and measures are undertaken.
Photographs: 1) Djtm at the German language Wikipedia, CC BY-SA 3.0, 2) Joachim Seidler, CC BY 2.0.
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