Tuesday, September 27, 2011

A test case for Europe's creaking asylum system

by Cian Murphy


September 27, 2011

The state of Greece's economy is not the only issue that is causing a problem for other European states. In late 2008, Saeedi, an Afghan asylum seeker, arrived in the EU via Greece before making his way to the UK to seek refuge. Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return Saeedi to Greece. Saeedi challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions.

Given the human rights claim, Saeedi's case also affords the European court of justice the opportunity to decide on the legal status of the EU charter of fundamental rights in the UK. If the ECJ follows the lead of its advocate general, Verica Trstenjak, whose opinion was handed down last week, Europe's creaking asylum system will be put under critical pressure.

The legal dispute turns on how a member state may exercise its discretion under EU law. While the Dublin Regulation dictates which state must process an asylum claim, EU law allows a state to take it upon itself to process any particular application should it decide to do so. Saeedi argued that the UK was obliged to consider his application because Greece would be unable to. The advocate general considered the position of the Greek asylum system, and concluded that transfer to Greece would give rise to a real risk of violation of Saeedi's fundamental rights. Though the UK was ordinarily free to assume other member states would comply with human rights requirements, it was open to an asylum seeker to rebut that presumption – as Saeedi had. As a result the UK should be obliged to protect him against that risk by processing his asylum claim.