A Major Blow to the Dublin System
The European Court of Human Rights rules that EU member
states cannot expel asylum seekers to Greece, so long as
its asylum system is below EU standards.
By Mary Kita and Philip Amaral, JRS-Europe
31 January 2011
On 21st
January 2011, the European Court of Human Rights struck
a major blow to the very foundations of the Dublin
system. In the case of M.S.S. v. Belgium and Greece,
the Court ruled that member states are not permitted to
expel asylum seekers to other member states whose asylum
systems are below EU legal standards. To do so would be
in violation of the European Convention of Human Rights
(ECHR). JRS-Europe welcomes the decision of the Court.
The Court
found Greece in violation of Article 3 of the ECHR
(prohibition of inhuman or degrading treatment or
punishment) due to the poor detention conditions
M.S.S. faced upon arrival, and to the poor living
conditions faced after being released from detention
into the streets. Greece was also found in violation of
Article 13 (right to effective remedy) due to the
numerous deficiencies in Greece’s asylum procedure.
Belgium was ruled to be in violation of Articles 3 and
13 as well: for having exposed M.S.S. to the
deficiencies in the Greek asylum system, and, for not
having provided M.S.S. with an effective legal
remedy to challenge the expulsion to Greece.
M.S.S. vs. Belgium and Greece
concerns an Afghan asylum seeker who entered the EU
through Greece in 2008, but continued onto Belgium
before applying for asylum. According to the Dublin
Regulation, M.S.S. would have to be transferred
back to Greece to apply for asylum. Despite an appeal
against the transfer, M.S.S. was returned to
Greece in June 2009, where he was forced to live on the
street without material, financial or legal support,
after first being detained for several days in appalling
conditions.
The decision of the court calls into question the legal
practice of other member states; for example, Germany
does not allow legal remedy of expulsion in any case.
According to Stefan Kessler, JRS-Europe Senior Policy
and Advocacy Officer, the decision behooves EU member
states to seek the improvement of asylum systems at the
border, rather than simply increasing border patrols.
Yet the most striking implication of the Court’s
decision is that it calls into question the fairness and
efficiency of the Dublin Regulation. JRS-Europe urges
member states to carefully review the asylum systems in
potential receiving states before undertaking Dublin
transfers.
Sweden, Belgium, Iceland, Norway,
Germany, the UK and the Netherlands have suspended
transfers of asylum seekers to Greece ahead of the
Court’s decision. EU member states must now continue to
refrain from sending asylum seekers to Greece as long as
its asylum system remains below EU standards.
