European court rules that asylum seekers cannot be removed to other EU countries if they risk being treated 'inhumanely'
A hotel housing asylum seekers in Croydon. The court ruled EU states may not transfer asylum seekers if they risk suffering inhuman or degrading treatment. Photograph: Antonio Zazueta Olmos/ Antonio Olmos
The Home Office has lost a key legal battle over the right to send asylum seekers back to the first European country they enter. The European court of justice ruled on Wednesday that asylum seekers cannot be removed to other EU countries if they risk being treated "inhumanely" there.
The man at the centre of the test case, known only as NS, claimed asylum in the UK in 2009 after travelling through Greece. Under an EU law known as the Dublin regulation, asylum seekers must apply in the first EU country they enter and can be sent back there if they travel to other countries. But removals to Greece have been suspended across much of Europe since January, when the European court of human rights judged that conditions for asylum seekers there were inhumane and degrading.
The Home Office argued it should be able to assume that all EU countries operate an asylum system that protects individuals' rights. But the judgment says no government can make this presumption. It says member states may not transfer asylum seekers when there are "substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment".
Sonal Ghelani from Islington Law Centre, who has been representing NS, said: "Around 90% of people trying to get [overland] into the EU came through Greece and they couldn't cope. The UK government knew that there was a massive problem, it can't be said they were unaware. And now we know that once they are aware, they have to apply the EU fundamental charter of human rights."
But asylum seekers would have to show very serious failings in the EU countries to which they were being sent. "They are EU countries so the presumption is strong that they will respect fundamental rights. It would have to be shown that there is a systemic failure, something quite significant."
A Home Office statement said: "We will consider the detail of this judgment carefully, but we are pleased that the decision supports the operation of the Dublin regulation as a simple way of determining which state is responsible for asylum seekers in Europe."
The case is one of a series of legal challenges to the Dublin system in courts across Europe. A high court decision on the removal of asylum seekers to Italy from the UK was deferred pending Wednesday's verdict.
In October, the Guardian reported that asylum seekers returned to Italy from the UK were sleeping rough on the streets of Rome. The Italian immigration minister, Sonia Viale, said other EU countries were not giving her country enough support. Italy, Greece and Malta have been pushing at the European council for a suspension mechanism in the Dublin law for times when migrant flows increase into particular countries.
Disagreement over reform of the Dublin regulations is holding up progress towards a common European asylum policy, due by the end of 2012. The policy is intended to create minimum standards for processing claims across the EU. The UK has so far opted out of all binding elements of the law.
Cecilia Malmström, the European commissioner for home affairs, told the Guardian that reforming Dublin was proving challenging and that countries had blocked a suspension mechanism. "It is one of the key elements in the asylum package but it has turned out to be one of the most difficult ones. We have been struggling with it for some time. "The commission proposed a suspension mechanism and we worked for a year to see if we could formulate that, but it has no support in the council."
The UK has been leading resistance to such reforms. The council is now looking at a compromise to send money and technical support to countries that are under pressure. The council is meeting in January to discuss the issue.
Malmström said she still believed a deal could be agreed, but it would be difficult. "In my business you have to be optimistic, but the challenges are so bad, the issues are emotional and full of controversy," she said.
"We have witnessed dramatic changes in our neighbourhood, with people asking for justice and democracy. We can't say 'it's great you threw out your dictator but stay where you are'. And this clashes with the biggest economic crisis in Europe for a generation. Times are difficult and the mood in member states is focused on other priorities."
The man at the centre of the test case, known only as NS, claimed asylum in the UK in 2009 after travelling through Greece. Under an EU law known as the Dublin regulation, asylum seekers must apply in the first EU country they enter and can be sent back there if they travel to other countries. But removals to Greece have been suspended across much of Europe since January, when the European court of human rights judged that conditions for asylum seekers there were inhumane and degrading.
The Home Office argued it should be able to assume that all EU countries operate an asylum system that protects individuals' rights. But the judgment says no government can make this presumption. It says member states may not transfer asylum seekers when there are "substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment".
Sonal Ghelani from Islington Law Centre, who has been representing NS, said: "Around 90% of people trying to get [overland] into the EU came through Greece and they couldn't cope. The UK government knew that there was a massive problem, it can't be said they were unaware. And now we know that once they are aware, they have to apply the EU fundamental charter of human rights."
But asylum seekers would have to show very serious failings in the EU countries to which they were being sent. "They are EU countries so the presumption is strong that they will respect fundamental rights. It would have to be shown that there is a systemic failure, something quite significant."
A Home Office statement said: "We will consider the detail of this judgment carefully, but we are pleased that the decision supports the operation of the Dublin regulation as a simple way of determining which state is responsible for asylum seekers in Europe."
The case is one of a series of legal challenges to the Dublin system in courts across Europe. A high court decision on the removal of asylum seekers to Italy from the UK was deferred pending Wednesday's verdict.
In October, the Guardian reported that asylum seekers returned to Italy from the UK were sleeping rough on the streets of Rome. The Italian immigration minister, Sonia Viale, said other EU countries were not giving her country enough support. Italy, Greece and Malta have been pushing at the European council for a suspension mechanism in the Dublin law for times when migrant flows increase into particular countries.
Disagreement over reform of the Dublin regulations is holding up progress towards a common European asylum policy, due by the end of 2012. The policy is intended to create minimum standards for processing claims across the EU. The UK has so far opted out of all binding elements of the law.
Cecilia Malmström, the European commissioner for home affairs, told the Guardian that reforming Dublin was proving challenging and that countries had blocked a suspension mechanism. "It is one of the key elements in the asylum package but it has turned out to be one of the most difficult ones. We have been struggling with it for some time. "The commission proposed a suspension mechanism and we worked for a year to see if we could formulate that, but it has no support in the council."
The UK has been leading resistance to such reforms. The council is now looking at a compromise to send money and technical support to countries that are under pressure. The council is meeting in January to discuss the issue.
Malmström said she still believed a deal could be agreed, but it would be difficult. "In my business you have to be optimistic, but the challenges are so bad, the issues are emotional and full of controversy," she said.
"We have witnessed dramatic changes in our neighbourhood, with people asking for justice and democracy. We can't say 'it's great you threw out your dictator but stay where you are'. And this clashes with the biggest economic crisis in Europe for a generation. Times are difficult and the mood in member states is focused on other priorities."
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