NO ESCAPE: ASYLUM SEEKING AND STATE TACTICS IN LIGHT OF RECENT INTERNATIONAL DECISIONS

1. NO ESCAPE: ASYLUM SEEKING AND STATE TACTICS IN LIGHT OF RECENT INTERNATIONAL DECISIONS Boldizsár Nagy’s presentation at the X. Nemzeti Ülés és Képzés a Migráció és a Menekültügy Uniós Vonatkozásairól Budapest, 17 October 2012,

2. Scheme of the talk The gap between the promises and the deeds The role of international courts in forming the MS’s practice No escape from responsibility: The (extended) limits to jurisdiction: Al Skeini v. UK No escape from the non-refoulement obligation by returning asylum seekers after interception on the high seas: Hirsi Jamaa v. Italy Dublin: not a pretext to escape the obligation to decide MSS v Belgium, C…. NS and ME v UK and Ireland Conclusion

3. WORDS AND DEEDSTHE GAP

4. The message of the Tampere European Council Conclusions (1999) • 2. ... The challenge of the Amsterdam Treaty is now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all. ... • 3. This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would bein contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead themjustifiably to seek access to our territory.This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related international crimes…..

5. The message of the Tampere European Council Conclusions (1999) • 4. The aim is an open and secure European Union, fully committed to the obligations of the Geneva Refugee Convention and other relevant human rights instruments, and able to respond to humanitarian needs on the basis of solidarity. A common approach must also be developed to ensure theintegration into our societies of those third country nationals who are lawfully resident in the Union.

6. THE STOCKHOLM PROGRAM PROGRAM, 2009 • The development of a Common Policy on Asylum should be based on a full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees and other relevant international treaties. THE ACTION PLAN IMPLEMENTING THE STOCKHOLM PROGRAMME, 2010 APRIL …the European Union has more than ever the duty to protect and project our valuesandto defend our interests. Respect for the human person and human dignity, freedom,equality,and solidarity are our everlasting values at a time of unrelenting societal and technological change. These values must therefore be at the heart of our endeavours.

7. Guardian, reporting on 8 May 2011 A boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted. All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days. "Every morning we would wake up and find more bodies, which we would leave for 24 hours and then throw overboard," said Abu Kurke, one of only nine survivors. "By the final days, we didn't know ourselves … everyone was either praying, or dying." Source_ http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants, visited 9 May 2011

8. The Berlin Wall 1961 – 1989 and the frontier around Europe • During the Wall's existence there were around 5,000 successful escapes into West Berlin. Varying reports claim that either 192 or 239 people were killed trying to cross and many more injured. http://en.wikipedia.org/wiki/Berlin_Wall visited 25 February 2006 Source: http://www.unitedagainstracism.org/pdfs/listofdeaths.pdfvisited 13 September 2012

9. THE ROLE OF THE COURTS

10. The role of the international courts European Court of Human Right European Convention on Human Rights, Preamble „Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” - common values („like minded”) - an imagined common political tradition (in fact working on it) - giving teeth (enforcement) - creating a shared judicial space of HR Court of Justice of the EU Full entitlement to adjudicate asylum and migration cases „Monopoly” of (final) interpretation of union law – decisions binding and to be followed not only in the affected state Source of innovation by stretching the law __________________________________________________________ Both courts are instruments counteracting „The political,” the shortsighted forces willing to sacrifice values for short term gain (political and economic)

11. FOUR LANDMARK DECISIONS

12. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM (Application no. 55721/07) JUDGMENT STRASBOURG 7 July 2011

13. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM Facts Six Iraqi nationals, all civilians, die in the period of 1 May 2003 to 28 June 2004 when the United Kingdom qualifies as „occupying power” British soldiers are involved in various ways (directly shooting them, being engaged in a fire exchange leading to civilian’s death, throwing one young man into the river, beating leading to death in British custody) On 26 March 2004, the Secretary of State for Defence decided, in connection with the deaths (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; (3) not to pay just satisfaction. British courts find that there was no jurisdiction (except in the case of the person held at the prison)

14. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM ECtHR applicants claim: Violation of Article 2 (right to life) by way of not investigating appropriately the cases (except in the prison-death case) Government: the Court has no jurisdiction as the victims were not within UK jurisdiction (except the prison-death case, where appropriate compensation had been paid – no longer victim status) The jurisdiction debate ECHR, Art. 1.: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The government’s argument: merely being affected by a Contracting state’s act does not create jurisdiction Banković and Others v. Belgium and Others, 2001 Jurisdiction is essentially territorial , limited to the Contracting States’ territory („The Convention’s legal space”) exceptions (extraterritorial jurisdiction) to be interpreted narrowly Northern Cyprus, Transdniestria: parts of contracting states where another contracting state exercised effective control as a consequence of military action UK was not exercising effective control in Iraq Being an occupying power does not necessarily mean effective control

15. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM The applicants: Two main arguments „State agent authority” - authorised agents of the State not only remain under its jurisdiction when abroad but bring any other persons or property 'within the jurisdiction' of that State, to the extent that they exercise authority over such persons or property. „effective control of an area” - occupying power has effective control (1907 Hague regulations ICJ in the Wallin the Occupied Palestinian territory opinion: the occupying power must apply international human rights law.

16. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM The Court: As to the state agent doctrine: §136 „… The Court does not consider that jurisdiction in the [reviewed] cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.

17. CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM The Court: As to the effective control doctrine: Extraterritorial jurisdiction is established „when, as a con-sequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside [the] national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces, or through a subordinate local administration” (§ 138) § 138 „detailed control” over the subordinate local administration is not required, the „fact that the local administration survives as a result of the Contracting State's military and other support entails that State's responsibility” § 142 Jurisdiction can exist outside the Convention’s juridical space (espace juridique) § 149 „United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security. … . the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.

18. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012

19. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Facts Eleven Somali nationals and thirteen Eritrean nationals left Libya aboard vessels with the aim of reaching the Italian coast. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento) they were intercepted by ships from the Italian Revenue Police and were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them. On arrival in the Port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships. The Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya, Between 6 and 10 May 2009, more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya

20. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Legal issues Jurisdiction Art. 3 treatment Jurisdiction Applicants’ claim Boarding the Italian vessels put them under the exclusive jurisdiction of Italy. According to Italian law vessels flying the flag of Italy fall within Italian jurisdiction The government’s claim Italy denied that it had exercised “absolute and exclusive control” over the applicants. The operation was a „rescue on the high seas of persons in distress” and not a maritime police operation. The rescue in itself did not create jurisdiction over the saved persons. As regards the applicants’ “rescue”, which in total had lasted no more than ten hours, the authorities had provided the parties concerned with the necessary humanitarian and medical assistance and had in no circumstances used violence; they had not boarded the boats of the immigrants and had not used weapons. Third party interveners (UNHCR HRW, AI, Aire centre and others together) Decisive is if under the authority and effective control of the state (not territory)

21. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 The Court General principles governing jurisdiction Rights and freedoms to be „secured” to everyone „within their jurisdiction” Jurisdiction is essentially territorial - but there are exceptions Lawful or unlawful military action Loizidou (but not if ”only an instantaneous extra-territorial act is at issue” (Banković) ) Whether exceptional circumstances exist leading to extra-territorial jurisdiction must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship State agents operating outside the state’s territory but exercising „control and authority over an individual „ = jurisdiction = an obligation to secure those right which are „relevant to the situation” In this sense Convention rights can be divided and tailored Application to the case The events at issue occurred on the high seas, on board military ships flying the Italian flag - even Italy admits that the ships were within Italian jurisdiction – that means exclusive jurisdiction of the flag state. The case was not an example of extra-territorial exercise of jurisdiction Italy cannot circumvent its “jurisdiction” under the Convention by describing the events at issue as rescue operation That the control exercised was allegedly minimal does not matter either Between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. … Accordingly, the events giving rise to the alleged violations fall within Italy’s “jurisdiction” within the meaning of Article 1 of the Convention.

22. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Article 3 issues Two claims of breaching art 3: - Treatment in Libya - Potential refoulement to Eritrea and Somalia Treatment in Libya Applicants (and third party interveners) : inhuman and degrading conditions in which irregular migrants, notably of Somali and Eritrean origin, were held in Libya and the precarious living conditions experienced by clandestine migrants in that country. Torture, physical violence, rape was widespread. Libya never granted any formal status to those whom UNHCR recognised in Libya as refugees Government: Could not sufficiently prove past treatment contrary to art 3. EU encouraged migration co-operation between Mediterranean countries As this was a rescue operation Italy was under no duty to identify potential refugees The applicants resistance to be handed over to Libyan authorities could not be interpreted as a request for asylum Libya was a safe host country (sic-BN) Although not a party to the 1951 Geneva Convention. It authorised UNHCR and IOM to operate in Tripoli UNHCR could recognise refugees in Tripoli – another proof that return to Libya did not entail danger

23. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 The Court General principles States control – subject to „their treaty obligations” – the entry, the residence and the expulsion of „aliens”. There is no right to asylum in the Convention If the person to be removed faces a real risk of being subjected to treatment contrary to Article 3 in the receiving country then states are obliged not to expel the individual to that country As the proscribed ill treatment would be the „direct consequence” of expulsion the Court must assess the situation in the receiving country (not party to the Convention) Assessment is based on material presented to it and on the basis of „material obtained proprio motu” The Court must examine the foreseeable consequences of the removal in the light of the general situation there as well as the affected individual’s personal circumstances

24. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Court, general principles (continued) Where an applicant alleges that a group is systematically exposed to a practice of ill-treatment, then Art. 3 applies when „there are substantial grounds for believing in the existence of the practice” in question and his or her membership of the group concerned Article 3 rights are absolute Danger of its violation may stem from non state agents („persons who are not public officials”) – then „ it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.” Decisive moment: the time of removal - risk = facts known or „ought to have been known” to the Contracting State (diligence standard!) Application to the case Difficulties of states forming the external border acknowledged, but that can not absolve the states of their obligations under Art 3 as they are absolute obligations Libya did not comply with the rules on protecting refugees. Asylum seekers and other irregular migrants were not distinguished

25. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Court, Application to the case (continued) Torture, poor hygiene lack of appropriate medical care and refoulement were reported The existence of domestic laws and international treaty obligations are not sufficient to ensure adequate protection where reliable sources have reported practices manifestly contrary to the principles of the Convention Italy can not evade its responsibility by relying on its obligations arising out of bilateral agreements with Libya UNHCR’s activity in Tripoli did not lead to any safety of the recognised persons Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention The national authorities have to find out what expects the returnees – it is immaterial whether they have applied for asylum or not. Neither recue at sea nor fight against illegal migration justify refoulement The Vice president of the Commission of the EU expressly warned against refoulement in the context of operations at high sea The fact that many were threatened with ill treatment in Libya „does not make the risk any less individual”

26. Hirsi Jamaa and others v. ItalyAppl. No. 27765/09 Grand Chamber judgment of 23 February 2012 Potential refoulement to Eritrea and Somalia Applicants and third party interveners: Breach of article 3 threatens in Eritrea and Somalia – many of them recognised as refugees by UNHCR Libya frequently conducted collective expulsions Government: According to their bilateral treaty Libya was bound by the principles of the UN Charter and the universal Declaration of Human Rights UNHCR could recognise refugees and they were not „arbitrarily expelled” The Court: Indirect removal of an alien leaves the responsibility of the Contracting State intact, and that State is required…to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation The returning state must ensure that the intermediary state „offers sufficient guarantees” against refoulement Individuals forcibly repatriated to Eritrea face being tortured and detained in inhuman conditions merely for having left the country irregularly.

27. THE DUBLIN SYSTEM - CONTEXT OF THE NEXT TWO JUDGMENTS

28. Purpose and philosophy of Dublin • Every asylum seeker should gain access to the procedure. There must be a MS to determine the case • Only one procedure should be conducted within the Union. A decision by any MS be taken in the name of others = no parallel or subsequent application should take place

29. The philosophy of Dublin: under what conditions is taking charge by another state –without investigation of the merits in the first state fair If the substantive law (the refugee definition) is identical If procedural rules guarantee equal level of protection at least in terms of legal remedies (appeals) access to legal representation physical conditions (support) during the procedure

30. The Dublin system as seen by the CJEU (NS and ME, para 79) Based on mutual confidence of MS NOT BURDEN SHARING ! Secondary aims

31.  CASE OF M.S.S. v. BELGIUM AND GREECE  (Application no. 30696/09)    GRAND CHAMBER JUDGMENT STRASBOURG  21 January 2011

32. M.S.S v. Belgium and Greece – main points Facts: The applicant is M.S.S. is an Afghan man, who worked as an interpreter in Afghanistan and chose Belgium as the destination country because of his contacts with Belgian troops in Kabul He travelled through Iran, Turkey Greece and France. He was caught in Greece in December 2008 but did not apply for asylum. On 10 February 2009 he arrived in Belgium, presented himself to the Aliens office and applied for asylum. Feared persecution: reprisal by the Taliban for his having worked as an interpreter for the international air force troops stationed in Kabul. He produced certificates confirming that he had worked as an interpreter. Belgian authorities denied appeal against transfer, ECtHR did not grant Rule 39 relief (provisional measure to halt transfer) 15 June 2009: M.S.S. was returned to Greece which was obliged to take charge (as it had remained silent for two months)

33. M.S.S v. Belgium and Greece – main points Facts continued 15-18 June 2009 detention of M.S.S. in Greece under harsh conditions §34: „locked up in a small space with 20 other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor.” After living in the park (and not reporting to the police) on 1 August 2009: attempt to leave Greece with a false Bulgarian passport second detention, expulsion order, later revoked due to the pending asylum procedure. The applicant contacted the police, had his residence card renewed twice for 6 months, but no accommodation was provided to him. August 2010: another attempt to leave Greece, towards Italy – caught again, almost expelled to Turkey His family back in Afghanistan, strongly advised him not to go home because the insecurity and the threat of reprisals had grown steadily worse The case was pending in the Court since 11 June 2009 Facts as to Greece: 88 % of illegal arrivals into Europe through Greece (in 2009) Recognition rates 0,04 % Convention status, 0,06 Subsidiary protection = 1 out of 10 000 at first instance Appeal: 25 Convention status and 11 subsid prot out of 12 905

34. M.S.S v. Belgium and Greece – Claims against Greece M. S. S. – the applicant’s claims A) Both periods of detention amounted to inhuman and degrading treatment. B) The state of extreme poverty in which he had lived since he arrived in Greece amounted to inhuman and degrading treatment C) He had no effective remedy concerning the above claims The issue of the detention (A) The Government The rooms were suitable equipped for a short stay + (in August 2009) on 110 m2 there were 9 rooms and two toilets +public phone and water fountain The Court General principles to be applied (as to detention) – the meaning of Article 3. „confinement of aliens, .. is acceptable only in order to enable States to prevent unlawful immigration while complying …. the 1951 Geneva Convention …. and the European Convention on Human Rights.” (§ 216) „ Article 3 of the Convention, … enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim's conduct”(§218)

35. M.S.S v. Belgium and Greece – Claims against Greece Ill treatment „must attain a certain level of severity” Severity is relative: duration, physical, mental effects, and sex, gender and age of the victim matter as well as his/her state of health (§ 219) Inhuman treatment = when it was “premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering” (§ 220) „Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance”. (ibid) „It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others.” The purpose f the treatment need not be humiliation.

36. M.S.S v. Belgium and Greece – Claims against Greece „Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured” (§ 221) Application of the principle to the present case – the Court’s dictum The Court acknowledges the increased hardship of external border states because of Dublin, but Art. 3 is absolute After return to Greece the authorities new, that M.S.S. did not „have the profile of an ‘illegal migrant’” 145 persons on 110 m2 usually locked up, without hygienic tools + the asylum seeker especially vulnerable --> „taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person's dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant's distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.” (§ 233) VIOLATION of Article 3 held UNANIMOUSLY

37. M.S.S v. Belgium and Greece – Claims against Greece The issue of the living (reception) conditions during the procedure (B) The government The applicant has not visited the police station as advised. After December 2009 when he showed up, efforts were made to find an accommodation bit M.S.S. had no address where to inform him. Homelessness is widespread in States, parties to the ECHR – it is not contrary to the Convention. The Court General principles: as above + There is no duty under Article 3 to provide home or financial assistance. Application to the present case The reception conditions directive binds Greece Asylum seekers constitute a special group in need of special protection The reception capacity of Greece is clearly inadequate, „an adult male asylum seeker has virtually no chance of getting a place in a reception centre”(§ 258) none of the Dublin returnees between February and April 2010 got one. The authorities have not informed M.S.S. of the available accommodation even when they saw him in June 2010 There was no realistic access to the job market due to administrative riddles

38. M.S.S v. Belgium and Greece – Claims against Greece .  ”..the Court considers that the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.” (§ 263) = VIOLATION OF ARTICLE 3. HELD 16 : 1

39. M.S.S v. Belgium and Greece – Claims against Greece The issue of effective remedies with respect to Articles 2 and 3 - claim (C) (Only protected from refoulement because of ECtHR interim measure, no serious examination of the merits of the asylum claim. The appeal to the Supreme Court would not have suspensive effect, practically nobody is recognised by the Greek authorities) The Government The applicant failed to cooperate, assumed different identities (when trying to leave Greece), had access to interpreter. The review by the Supreme Court is effective remedy, Asylum seekers were not entitled to a right to appeal under the ECHR and Article 6 (Right to a fair hearing) of the Convention did not apply to asylum cases, No danger to transfer to Turkey as the readmission agreement with Turkey does not cover returnees from other EU MS. The applicant did not appear at the hearing planned for 2 July = did not exhaust local remedies

40. M.S.S v. Belgium and Greece – Claims against Greece The Court General principles The remedy must be linked to a Convention right and must deal with the substanceof an arguable complaint It must be available in law and in practice It must grant appropriate relief and must not be of excessive duration „In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires …, independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 .., as well as a particularly prompt response In cases of Article 3 threat the remedy must have automatic suspensive effect

41. M.S.S v. Belgium and Greece – Claims against Greece Application to the present case The gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties - arguable claim(but the Court does not rule on the possible consequences of return only on whether there was an effective remedy against removal within Greece) (§§ 296 – 298) M.S.S. had not enough information and his non-appearance is the result of lack of reliable communication. Uncertainty about the hearing on 2 July – perhaps only told in Greek. „The Court is not convinced by the Greek Government's explanations concerning the policy of returns to Afghanistan organised on a voluntary basis. It cannot ignore the fact that forced returns by Greece to high-risk countries have regularly been denounced by the third-party interveners and several of the reports consulted by the Court” (314) His efforts to escape from Greece can not be held against him as he tried to escape Art 3 treatment. Conclusion: violation of Art 13 in conjunction with Article 3: „…because of the deficiencies in the Greek authorities' examination of the applicant's asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy. VIOLATION of Article 13 in conjunction with Article 3 held UNANIMOUSLY

42. M.S.S v. Belgium and Greece – Claims against Belgium M. S. S. – the applicant Sending him by Belgium to Greece exposes him to the risk of violating Article 2 and 3 by way of refoulement The application of the Dublin Regulation did not dispense the Belgian authorities from verifying whether sufficient guarantees against refoulement existed in Greece(and they were insufficient) Belgium When needed Belgium applied the sovereignty clause (§3 (2) ) of the Dublin regulation M.S.S did not complain about Greece, nor had he told that he had abandoned an asylum claim in Greece Greece assured that it would investigate the merits of the case In the K.R.S v. UK case Greece gave assurances that no refoulement would occur

43. M.S.S v. Belgium and Greece – Claims against Belgium Interveners The Netherlands: „It was for the Commission and the Greek authorities, with the logistical support of the other Member States, and not for the Court, to work towards bringing the Greek system into line with Community standards.”(§ 330) „In keeping with the Court's decision in K.R.S. (cited above), it was to be assumed that Greece would honour its international obligations and that transferees would be able to appeal to the domestic courts and subsequently, if necessary, to the Court. To reason otherwise would be tantamount to denying the principle of inter-State confidence on which the Dublin system was based…” (§ 330) UK: Dublin is to speed up the process – calling to account under § 3 ECHR would slow it down UNHCR:each Contracting State remained responsible under the Convention for not exposing people to treatment contrary to Article 3 through the automatic application of the Dublin system. AIRE Center and AI: transferring to a state violating Art 3 entails the responsibility of the transferring state

44. M.S.S v. Belgium and Greece – Claims against Belgium The Court Difference from the Bosphorus case: there sovereign powers were transferred to an organsiation which entailed protection of fundamental rights equivalent with the Convention protection. (Namely the EU legal order and the CJEU) and the state was obliged to act. Here Belgium could refrain from the transfer so it was not an international obligation (§ 340) Lessons from T.I and K.R.S.: „When they apply the Dublin Regulation, … the States must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.” „the Court rejected the argument that the fact that Germany was a party to the Convention absolved the United Kingdom from verifying the fate that awaited an asylum seeker” (ibid)  rejection was based on the fact that Germany had an adequate asylum procedure. In K.R.S the Court could assume that Greece was complying with the reception conditions directive and the asylum procedures directive , nor was a danger that a rule 39 intervention by the Court would not be observed.

45. M.S.S v. Belgium and Greece – Claims against Belgium The Court had to consider whether the Belgian authorities ought to have regarded as rebutted the presumption that the Greek authorities would respect their international obligations. The situation changed since December 2008 (K.R.S v UK decision) more and more reports about the conditions in Greece UNHCR’s letter to Belgium to suspend transfers Commissions proposal for Dublin recast – entailing a rule on suspension of transfers The Belgian Aliens Office Regulation left no possibility for the applicant to state the reasons militating against his transfer to Greece Adequate protection: existence of domestic laws and accession to treaties not enough when reliable sources report contrary practices Guarantee by the Greek Government was too general, not about the person „the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory” (§ 357)

46. M.S.S v. Belgium and Greece – Claims against Belgium The Courts conclusion on the application of Dublin The „Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.” (§ 358) „…it was in fact up to the Belgian authorities, …to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable.” (§ 359) VIOLATION OF ARTICLE 3. by the transfer and exposing him to the deficiencies of the asylum procedure (threat of refoulement) HELD 16 : 1 VIOLATION OF ARTICLE 3. by returning him to the Greek the detention and living conditions HELD 15 : 2

47. N. S. (C‑411/10) v Secretary of State for the Home Department (UK) and M. E. and others (C‑493/10) v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, (Ireland) CJEU judgment, 21 December 2011

48. N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined cases N. S. (C‑411/10) v Secretary of State for the Home Department (UK) and M. E. and others (C‑493/10) v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, (Ireland) CJEU judgment, 21 December 2011 Importance of the case: The Commission, UNHCR, Amnesty International (+other NGOs) and Austria, Belgium, the Czech Republic, Finland, Germany, Greece, France, Italy, The Netherlands, Poland, Slovenia and Switzerland submitted observations. Facts C-411/10 NS Afghan national arrested in Greece, Sept, 2008 - does not apply for asylum - order to leave – later expelled to Turkey (2 month in prison there) – 12 January arrival in UK – Request to Greece to take charge – silence- 18 June Greece deemed to have accepted responsibility – 30 July removal order without an appeal with suspensive effect as Greece „safe” according to the 2004 British Act on Asylum – NS seeks judicial review – granted – March 2010 High Court dismisses application but allows further appeal –Court of Appeal raises preliminary questions to the Court of the European Union

49. N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined cases Facts continued C-493/10 Five unconnected individuals from Afghanistan, Iran and Algeria – none apply for asylum in Greece – application in Ireland –Eurodac shows hit – no argument based on Art 3 ECHR – resistance to return based on claim that reception conditions and the asylum procedures in Greece are inadequate Questions, as grouped by the Court A ) Does a decision adopted by a Member State to apply the „sovereignty clause” (Article 3(2) of The Dublin II regulation /343/2003/) fall within the scope of European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter.

50. N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined cases B) Whether the transferring Member State Ba) is obliged to assess the compliance of the other Member State, with EU law Bb) may operate on the basis of a conclusive presumption that the responsible State will observe the claimant’s fundamental rights and the minimum standards imposed by the directives Bc) may maintain a provision of national law which requires a court to treat the responsible Member State as a ‘safe country’ as compatible with the rights set out in Article 47 of the Charter. Bd) is obliged to accept responsibility (must apply the sovereignty clause) if the responsible state is found not to be in compliance with fundamental rights C) Is the extent of protection offered by the Charter articles 1 (human dignity), 18 8Right to asylum), 47 (effective remedy) wider than that of Art 3 of the ECHR? D) Whether Protocol 30 to the Treaties on the application of the Charter to the UK (and Poland) qualifies the answers on the duty to assess the destination country’s circumstances and the on the applicability of the safe country presumption