Court limits right of EU states to send asylum seekers to state of first entry


AN ASYLUM seeker may not be sent back to the first EU member state he landed in from outside the EU if he risks being subjected to inhuman treatment there, the European Court of Justice (ECJ) has ruled.

This means asylum seekers in Ireland who landed first in Greece from outside the EU cannot be sent back there.

Under the “Dublin II” regulation, the state in which the asylum seeker first arrived was considered responsible for dealing with their asylum application, and in practice this meant Ireland could send asylum seekers back to states along the EU’s eastern and southern borders that were most commonly the first in which they arrived.

Earlier this year the ECJ ruled that Belgium was wrong to send an asylum seeker back to Greece where he had already suffered mistreatment in the asylum process, as Greece could not guarantee his human rights would not be infringed.

Following this, the court was asked by Ireland and the UK to rule on two cases where asylum seekers had arrived from Greece and resisted being sent back there on the basis that the procedures and conditions for asylum seekers were inadequate.

In the UK case, an Afghan asylum seeker had been arrested in Greece before making an asylum application and expelled to Turkey, where he was held in appalling conditions for two months. He escaped from his place of detention in Turkey and travelled to the United Kingdom, where he arrived in January 2009 and lodged an asylum application.

There he was told he would be transferred to Greece under the “Dublin II” regulation.

The Irish case concerned five people, unconnected with each other, originating from Afghanistan, Iran and Algeria. Each of them travelled via Greece where they were arrested for illegal entry without applying for asylum. They then travelled to Ireland, where they claimed asylum. They resisted their return to Greece and claimed the procedures for asylum seekers there were inadequate.

Both the court of appeal of England and Wales and the Irish High Court asked the ECJ whether, before transferring an applicant, the member state should first check whether the state to which the applicant is being transferred observes applicants’ fundamental rights. They also asked that if that state does not observe fundamental rights, the states receiving the asylum application were bound to assume responsibility for examining the application themselves.

The ECJ stated in its judgment, delivered yesterday, that EU law does not mean a state can presume that member states observe asylum seekers’ fundamental rights, especially if they have good reasons for considering that these rights are not observed.

It points out that in 2010 Greece was the point of entry in the European Union of almost 90 per cent of illegal immigrants, resulting in a disproportionate burden being borne by that state. This meant the Greek authorities were unable to cope with the situation, leading to the denial of fundamental rights of asylum seekers.