AG’S OPINION THAT RETURNS TO GREECE RISK BREACHING FUNDAMENTAL RIGHTS

Advocate General Verina Trstenjak last week issued an opinion in a Preliminary Reference Case C-493/10 from the Irish courts regarding the transfer of asylum seekers from Ireland to Greece. The case mirrors the issues determined by the European Court of Human Rights in MSS v Belgium and Greece, which we discussed in our previous posting. The cases essentially concern whether return of an asylum applicant to Greece from a transferring Member State under the Dublin Two Regulations  risks breaching the applicant’s fundamental rights and whether such a transfer would be contrary to EU law. 

The recent reference from Ireland (arising out of M. E. and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform) to the Court of Justice concerns five asylum applicants from Afghanistan, Iran and Algeria who had entered and travelled through Greece as illegal entrants but who had not claimed asylum there. The principal issue to be determined by the Court and that is considered by Advocate General Trstenjak in her opinion is whether the transfer of these asylum seekers to Greece may constitute a risk of a serious breach of their fundamental rights.

You may recall, in the case, M.S.S. v Belgium and Greece, an Afghan asylum seeker entered the EU through Greece en route to Belgium where he claimed asylum. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights.

In her opinion, the Advocate General Trstenjak considers under what conditions it might be appropriate, or even obligatory, under EU law, for Ireland and the United Kingdom (who also made a reference and the cases were joined), notwithstanding the primary responsibility of Greece for the applications, themselves to undertake the examination of those asylum applications. 

The Advocate General opines that the transferring Member State when determining whether to examine an asylum application for which it is not responsible, is required to have regard for the provisions of the Charter of Fundamental Rights.

The Advocate General notes that the Greek asylum system is considerably overburdened and can no longer guarantee that asylum applications will be dealt with in compliance with EU law. She therefore argues that it cannot be ruled out that asylum seekers who are transferred to Greece may, following their transfer, be treated in a manner which is incompatible with the provisions of the Charter of Fundamental Rights.^. 

The AG's opinion concludes therefore that the transferring Member States, the United Kingdom and Ireland, are obliged to assume responsibility under Regulation No 343/2003 and must themselves examine the asylum application. 

It may also be of interest to note that the AIRE Centre and Amnesty International are third party interveners in this case and have issued a press release summarising the key findings in the opinion of Advocate General Trstenjak. 

Brophy Solicitors

26.09.11