22 December 2011
ECJ Judgment on Dublin II
On 21 December 2011, the European Court of Justice delivered its judgment in the joint cases of N.S. v Secretary of State for the Home Department and M.E. and others v. Refugee Applications Commissioner under the preliminary ruling procedure.
The Court found that Member States may not transfer asylum seekers to the Member State responsible for their application under the Dublin Regulation where they cannot be unaware that systemic flaws in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of ill-treatment within the meaning of the relevant provision of the Charter of Fundamental Rights. In such case the referring Member State is under an obligation to examine the application itself if no other Member State is responsible under the criteria set out in the Dublin Regulation and the Dublin procedure would take an unreasonably long time.
The Court also found that applying the Dublin Regulation on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State responsible is “incompatible with the duty of the Member States to interpret and apply Regulation No 343/2009 in a manner consistent with fundamental rights”. Therefore, the presumption underlying the Dublin Regulation must be regarded as rebuttable. Finally, the Court, while making explicit reference to the European Safe Third Country Concept in the Asylum Procedures Directive, also affirmed that the application of safe country concepts without an opportunity to rebut the presumption of safety, would be incompatible with EU law.