Advocate General Trstenjak has issued her opinion in NS v SSHD. This is an important and interesting case raising issues about the application of the Charter of Fundamental Rights (CFR) in the UK, and the use of statutory presumptions about the safety of EU Member States. Of course, as with all AG opinions, the ECJ will be free to accept or reject the opinion in full or in part – the norm is that such opinions are followed.
Key issues in a nutshell
Asylum seekers are required to claim asylum in the first country that they enter. The Dublin II Regulation (DR) means that those asylum seekers who move on to another EU country can be returned to the initial EU Member state unless the second EU Member state agrees to examine their application. That framework is reflected in domestic law.
The key question in this case is whether an obligation arrises to refuse to return an asylum seeker, and actively consider their application in circumstances where a trasnfer to a Member State would lead to a risk of breach of fundamental rights under CFR, ECHR or the Refugee Convention. In addressing this question the AG also addresses the applicability of CFR to the UK.
Within the scope of community law?
AG Trstenjak starts of by considering whether a discretionary decision by a Member state as to whether to examine a claim for asylum which is not, according to the Dublin Convention, its responsibility is within the scope of EU law- if it is not, CFR does not come into play.
The AG finds that despite the discretion entailed, a decision to use the option to consider a claim is within the scope of Community law as it represents domestic implementation of EU rules. The effect of this is that CFR will apply to the decision.
A duty to assume responsibility for examination of cases where there is a risk of violation of fundamental rights?
The AG takes the view that Dublin framework is consistent with CFR, ECHR and RC. She however goes on to discuss Greece and its overloaded asylum system in the light of recent judgments such as M.S.S. v Belgium and Greece . She notes that the actual evidence shows that Greece cannot guarantee that asylum seekers will be treated in accordance with the relevant European Directives. It cannot ultimately therefore therefore comply with its wider obligations stemming from CFR and international law.
Given that Article 63(1) EC, the recital to DR , and settled case-law establish that DR must be interpreted in way that is consistent with fundamental rights, she takes the the view that Member states are obliged to assume responsibility for the examination of asylum claims under DR where there is a risk to the asylum seekers fundamental rights arising from their transfer to the original Member state.
The use of presumptions
Given the above, Advocate General Trstenjak concludes that it cannot be presumed that all of the minimum standards laid down in the Directives above will be observed in a Member State upon transfer under DR. Further, Article 47 of CFR grants everyone whose rights are guaranteed by EU law the right to an effective remedy before a tribunal in accordance with the conditions laid down comes into play. Its effect is to render any law that courts must proceed from a conclusive presumption that Member states will not expel asylum seekers to another state in contravention of the ECHR or RC incompatible this.
It should be noted however that this does not bar Member States from proceeding from a rebuttable presumption that an asylum seeker’s human rights and fundamental rights will be observed upon return to a Member State. However where rebuttable presumptions are applied the AG notes:
134. … they must observe the principle of effectiveness, according to which the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult. (60)
What about other serious infringements of asylum Directives?
AG Trstenjak takes the view that serious risks of infringements of individual provisions of the Directives 2003/9/2004/83 and 2005/85 which do not also constitute a violation of fundamental rights as per CFR are not sufficient to create an obligation to assume responsibility for examining asylum claims under the DR.
The reasoning behind the above would appear to be that a finding to the contrary would potentially result in the overstepping the correct limits of the Court. It would effectively result in the creation of a ‘new, far- reaching exclusion criteria’ in addition to that laid down in the DR which would undermine the purposes of the European system put in place.
Relationship between the protection of asylum seekers under CFR and those under ECHR
In the light of M.S.S. v Belgium the the AG does not specifically consider whether Articles 1, 18 and 47 CFR offer wider protection than Article 3 ECHR. She simply notes that protection guaranteed by the CFR which overlaps with the ECHR must be no less than the ECHR in the light of the aim of Article 52(3) of CFR.
Protocol No. 30. An opt out of the CFR?
Advocate General Trstenjak concludes that she does not regard Protocol 30 as a general opt out of CFR. In relation to Article 1(1) of the Protocol (no extension of powers of court) this simply reaffirms the the principle in Article 51 of CFR that there is no extension of EU powers.
Further, Article 1(2) of the Protocol (no new social rights derived from Article 27-38) is not relevant ,since the since the case does not revolve around this
Finally, the AG also observes that Article 2 of Protocol 30 applies only to provisions of CFR which make reference to national laws and practices- this is not the case with provisions of CFR relevant to this case. It is only the case with the social rights referred to above.
Whilst some have been critical of the AG’s approach in relation to individualised breaches of the relevant Directives, this is broadly a welcome opinion which emphasizes the importance of the observance of funamental rights whilst also bringing some clarity to the issue of the applicability of CFR in the UK. We’ll just have to wait for the ruling of the ECJ however for a more final determination of the issue.