Judgment of European Court of Justice reinforces our obligation to have respect for fundamental rights, says Irish Refugee Council

Posted On: 22 December 2011

In a judgment of significant consequence for Ireland and other Member States, the European Court of Justice has ruled that asylum seekers cannot be sent back to other European countries pursuant to the Dublin II Regulation if they are at risk of being treated inhumanely there.

Jacqueline Kelly, Managing Solicitor at the Irish Refugee Council Independent Law Centre, says:   “ We welcome the judgment of the European Court of Justice, which affirms the importance of respect for fundamental rights, and reinforces our obligation to read secondary legislation in a manner which is compliant with fundamental rights and the Charter of Fundamental Rights of the European Union.”


Further information

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Notes to the Editor

Summary of the case

In summary, the High Court of Ireland and the UK Court of Appeal raised questions to the Court of Justice regarding whether

–          the authorities of a Member State which should transfer an asylum applicant to Greece pursuant to the Dublin II Regulation must first check whether that State actually observes fundamental rights and

–          if the receiving State does not actually observe fundamental rights, the authorities of the Member State are bound to assume responsibility for examining the asylum application themselves.

The Irish case concerned five unrelated appellants, from Afghanistan, Iran and Algeria who had each travelled to Ireland via Greece.  They were arrested for illegal entry on arrival in Greece and did not claim asylum there before travelling to Ireland.  They were later identified as having travelled through Greece by the EURODAC system and the Irish authorities sought to return them to Greece.   At the time, it was recognised that Greece was the point of entry for almost 90% of illegal immigrants to the EU and, in practice, the Greek authorities were unable to manage this situation.  The appellants, represented by the Refugee Legal Service, challenged the decision to transfer them back to Greece in the High Court on the basis that their fundamental rights would infringed.  The High Court subsequently made a request for a Preliminary Reference to the European Court of Justice.

In response to that reference, and a reference made by the UK Court of Appeal, the European Court of Justice held that while the Dublin II Regulation was conceived in the context of a Common European Asylum System in which participating States could have confidence that other Member States observed fundamental rights, EU law precludes a conclusive presumption to that effect.

The Court of Justice further held that Member States may not transfer an asylum seeker where “they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers .. amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment” within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.

Press Release of ECJ  http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110140en.pdf


Full Judgment http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=204019