Top EU court prohibits asylum transfers that risk rights violations

[JURIST] The European Court of Justice (ECJ) [official website] ruled [judgment text; press release, PDF] Wednesday that an asylum seeker may not be transferred to a member state if there is a risk he will be subjected to inhumane treatment. In so ruling, the ECJ rebutted the presumption that member states observe the fundamental rights of asylum seekers. The ruling was the result of multiple cases brought before the court from individuals that were arrested in Greece for illegal entry without applying for asylum. Upon release, one traveled to the UK, while five others traveled to Ireland, where they were informed that they would be returned to Greece. However, fearing that their fundamental rights would be not be respected in Greece, they all resisted their return. The courts in the UK and Ireland then asked the ECJ to determine whether member states must first make sure that the state where those seeking asylum will be transferred actually observes fundamental rights. The ECJ ruled that they must, holding that:

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.
The court also stated that a member state that is not able to transfer an asylum seeker due to the possibility of infringement of their rights, may, in certain circumstances, be required to examine the application for asylum, which would normally be the responsibility of the state to which individuals are transferred. All of the transfers at issue would normally be allowed under an agreement called Dublin II [text], which allows countries to deport an asylum seeker back to the country where they first set foot.

Greece is not the only country whose asylum policies have been questioned. In May, the UN High Commissioner for Human Rights Navi Pillay [official profile] rebuked [JURIST report] Australia for its political, rather than human rights based approach to indigenous people and asylum-seekers. Although she criticized some of the nation's practices, she had considerable praise for "a strong history of commitment to human rights at the international level, and also of course a robust system of democratic institutions." Nonetheless, she believes improvements are necessary in the realm of treatment of Aborigines and immigrants. On the topic of asylum-seekers, Pillay described situations where refugees wait in immigration centers for months or years. She recommended greater communication with both groups, a revamp of how the Aborigine Northern Territory is handled, and for political leaders to quit "demonizing" refugees and immigrants.

 

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