New body of case law prohibiting Dublin 2 returns to certain Member States

Since the Court of Justice judgements in the “Greek Transfer” cases (see NS and Others v SSHD (C-411/10) and in MSS v Belgium and Greece) in 2011, Members States are now effectively prohibited from applying the Dublin 2 Regulations in order to return asylum seekers to Greece. Following on from these judgements, it is not surprising that a body of case law is now developing to challenge Dublin 2 returns to other Member States with poor records in respect of the treatment of asylum applicants.

In December 2011, we blogged about the Austrian Courts prohibiting Dublin 2 returns to Hungary due to the potential risks of a breach of Article 4 of the Charter of Fundamental Rights – which prohibits torture and inhuman or degrading treatment or punishment.  Relying on these judgements we have been able to secure an undertaking from the Department of Justice not to deport a client of this office to Hungary.

We now wish to highlight some further decisions coming from the Belgian courts which suspend Dublin 2 returns to Malta for similar reasons. The Belgian Court’s decision, of the 6^th  January 2012, found that the applicant, of Somali nationality, had demonstrated an arguable claim based on Article 3 of the ECHR that he would be subject to inhuman treatment were he to be returned to Malta and thus suspended the execution of the State Secretary’s decision.  The judgement is written in Dutch and summarized briefly in English by the UNHCR. 

Summary of Belgian court’s judgement;

The applicant had previously applied for asylum in the Netherlands, but had been returned by that country to Malta in 2010 pursuant to the Dublin Regulation.  He alleged that in Malta, he was left homeless and that, due to his failure to be provided with legal aid, his asylum request had not been properly considered.  The applicant then requested asylum in Belgium on 27 October 2011, which the State Secretary for Asylum and Migration, Social Integration and Poverty Reduction refused to examine and then ordered his renewed transfer to Malta on 21 December 2011. The applicant, who was detained and scheduled to be transferred on 9 January 2012, requested suspension of the execution of the State Secretary’s decision under extremely urgent procedure on 5 January 2012. 

Citing the report of Mr Thomas Hammarburg  - Commissioner for Human Rights of the Council of Europe – dated 9^th June 2011, the Belgian Court found that there were significant deficiencies with Malta’s detention policy regarding asylum-seekers and the living conditions in the detention centres, as well as clear shortcomings with respect to Malta’s asylum proceedings concerning legal aid and the asylum proceedings, partly caused by the detention policy. The Court found that the Belgian authorities should have been aware of these shortcomings and taken them into consideration in their decision to refuse to consider the applicant’s asylum request and transfer him back to Malta and which they failed to disprove in written pleadings.

Mr Thomas Hammarburg’s report identifies many concerns regarding Malta’s policies in respect of asylum seekers. 

Brophy Solictors

24.02.12 

Hungary - potentially the next member state to be found unfit to return asylum seekers to?

Last week we prepared for an urgent injunction application to prevent a Somali client’s deportation to Hungary. Instead, we obtained a last minute undertaking from the Department of Justice that the  deportation would not be carried out at least until mid January. 

The case is somewhat unusual as it is not yet in the public domain that asylum seekers and refugees returned/deported to Hungary  risk destitution. The case also highlights the potential for a second waive of cases similiar to the "Greek Transfer" cases , but this time in respect of Hungary . 

Our client is a Somali national against whom a deportation order has recently been issued on the basis that he had previously been granted refugee status in Hungary. However, on obtaining status in Hungary, out client received no accommodation or social assistance in any form. Unable to speak Hungarian, he found no possibility of gaining employment. This, coupled with no access to welfare support led him to become destitute and homeless. He had no means to pay for accommodation, food or other basic subsistence requirements. He, along with other Somali nationals, slept rough on the streets, and relied on local mosques in Budapest to supply food and blankets. Due to this lifestyle and particularly in such a climate as Hungary, he became very ill. The situation was so dire that he felt forced to return to Somalia at the end of 2006 and was able to do so due to his family’s assistance.

As the situation in Somalia worsened in 2007 and 2008, and our client and his family were subjected to many attacks by the local militia, he was tortured and most of his immediate family were murdered.  He thus fled Somalia again, and entered Ireland to claim asylum.  Three years later, he now faces deportation back to Hungary. We are currently urgently seeking an injunction to stay any deportation which may occur. We do so appealing to protection grounds pursuant to the Refugee Act 1996, the UN Convention Against Torture, the European Convention of Human Rights and humanitarian grounds of the Immigration Act 1999.

In particular, we are relying on a 2012 UNHCR Report called “Refugee Homelessness in Hungary” details the dire situation ongoing for Somali refugees in Hungary. This report corroborates fully the fear of our client that he would again be rendered destitute if returned to Hungary. Of particular relevance to our particular client, the report outlines those refugees who have continued onto other EU Member States and who were forcibly returned as those at greatest risk. Furthermore, the report identifies Somali nationals as the group at most risk of homelessness in Hungary.

“Caught in a vicious circle of hopelessness and without any examples of successful integration among Somali refugees in Hungary, most research respondents opt for onward movement to other European counties. Inadvertedly punished with homlessness and hunger as a result of exercising freedom of movement and without access to an adequate level of community based-support services in Budapest, a number declared their intention to engage in repeat onward movement…” (Ch.3 Para.2)

We consider the above report to be of substantial weight as it has recently been relied upon in Austrian Courts to prohibit the state from returning refugees and asylum seekers alike to Hungary.  

The denial of any welfare service to asylum seekers, thus causing a situation of destitution was found to amount to a breach of Article 3 of the ECHR in the UK decision of R (Limbuela) v Home Secretary Of State for the Home Department [2006].

Similarly in M.S.S. V Belgium and Greece [2011] the Grand Chamber of the European Court of Human Rights determined that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, thus any transfer to Greece would effect a breach of the Applicant’s rights under Article 3. This judgement was ground breaking, in that it was the first time a Member State of the EU has been found to be actively operating an asylum system that amounts is effectively  “Inhumane and degrading treatment” for asylum seekers. The consequence of the M.S.S. case was a large amount of injunctions being granted by various courts with the Member States to prohibit “Greek transfers”.

The situation concerning refugees in Hungary, particularly returning Somalis, is such to mirror the situation decided upon in Greece. 

Brophy Solicitors

19.12.11