Good news from Strasbourg: the European Court of Human Rights (ECtHR) has again allowed asylum seekers in Europe to challenge their removals within the EU under the Dublin regulation.
The decision in Tarakhel v. Switzerland involves a family from Afghanistan that originally sought asylum in Italy in 2011. After several days in an Italian center for asylum seekers, the family left Italy, claiming asylum again in Austria and then again in Switzerland a few months later. But Switzerland moved to send the family back to Italy under the Dublin regulation, which controls where asylum claims are examined. In most cases under the Dublin system, this is the first EU member state asylum seekers reach. If they claim asylum in a second member state, this second country may deport them back to the first for their claim’s adjudication. (For more on Dublin II in the Bulgarian context, see Colson Lin’s post on this blog).
Tarakhel argued that removing the family back to Italy, where they might be split up and made to wait for a long period before a decision, would subject them to inhuman treatment. Such treatment would violate their rights under Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and degrading and inhuman treatment, as well as Article 13 rights to an effective remedy.
The court rejected the Article 13 claim. But it held, given the deficiencies in parts of the Italian asylum system, that Swiss authorities would violate Article 3 were they to send the Tarakhels back to Italy without guarantees that special consideration would be given to the children and the family’s wellbeing.
The decision joins a growing body of case law from the Strasbourg court regarding the Dublin system. In 2011, in M.S.S. v. Belgium and Greece, the court held that Belgium should not return an Afghan national to Greece under the Dublin regulation. It found that Greece had violated the applicant’s Article 3 and 13 due to the risk he’d be deported back to Afghanistan without a serious adjudication of the merits of his claim. And if Belgium sent the individual back to Greece, the court said, it would violate his Article 3 rights in light of concerns raised by the UNHCR and others about the lack of effective protection measures in Greece.
The court in this case did not go as far as M.S.S., saying that Italy’s asylum facilities are much more robust than those in Greece and “the most extreme poverty” did not exist on a large scale among asylum seekers in Italy. Still, the court argued that young asylum seekers demand “special protection” and that facilities must be adapted to take into account the age of the children, their specific needs, as well as their extreme vulnerability. In this particular case, therefore, the court concluded that Swiss authorities should not return the family without first receiving “individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.” Without these assurances, the Swiss government might be violating Tarakhel’s Article 3 rights.
The underlying presumption of the Dublin system is that, despite differences in form and procedure, EU member states can each protect equally the rights of asylum seekers. It is not an idle consideration: with grant rates, reception conditions and support levels varying greatly among EU member states, the location where applicants make an asylum claim can greatly affect its result.
But the court is closely watching the Dublin approach. In this case, building on the M.S.S. decision, the court held that “the presumption that a State participating in the ‘Dublin’ system will respect the fundamental rights laid down by the [ECHR] is not irrebuttable.”
By implicitly linking failures of individual member state’s asylum procedures and reception conditions with one of the most fundamental protections in the ECHR, the Tarakhel decision clearly demonstrates that where — and how — asylum applications are adjudicated constitutes a fundamental rights issue. In so doing, the court appears willing to provide an important avenue for asylum seekers to challenge any rote implementation of the Dublin regulation without regard to its effects on substantive rights.