Open University of the Netherlands
Alongside the current discussion on the relocation of unaccompanied minor migrants from Greece to other EU Member States, another dialogue is ongoing: restarting ‘Dublin transfers’ from the other Member States to Greece.
In principle, the Dublin Regulation (No. 604/2013) would require the first Member State where someone submits an application for international protection to be responsible for that application, based on the principle of mutual trust. The principle of mutual trust between the EU Member States requires them to trust one another in complying with EU law and recognizing decisions made in their civil and criminal justice systems, asylum law and family law. However, Dublin transfers to Greece had been suspended since 2011 because of possible violations of Article 4 of the EU Charter of Fundamental Rights, i.e. the prohibition of torture and inhuman or degrading treatment or punishment. In practice, this meant that the Member State in which someone submitted an asylum application was responsible for that application instead of Greece, even if the person had previously applied for asylum in Greece.
However, in 2016, the European Commission recommended that the Member States consider resuming Dublin transfers to Greece. The Commission Recommendation formulated modalities for the resumption of transfers, such as individual assurances concerning the circumstances the asylum seeker would find herself in and advice against transferring vulnerable asylum seekers. Based on this Recommendation, some Member States attempted restarting Dublin transfers to Greece, which in turn led to appeals by asylum seekers and thus domestic case law.
This blog studies Dutch and Belgian case law on Dublin transfers to Greece. In doing so, I will show that while the outcomes of their judgments may differ, the Belgian and Dutch approaches are actually quite similar from a legal point of view. Lastly, I will uncover a possible oversight in the studied case law concerning the assessment of possible violations of the ‘core’ of fundamental rights other than Article 4 of the EU Charter of Fundamental Rights.
Dutch case law
In the Netherlands, the decision-making authorities (Immigratie- en Naturalisatiedienst) first started submitting Dublin transfer requests to Greece in 2018 but, to the best of my knowledge, have not succeeded in doing so. For example, in 2019, the Netherlands submitted 74 requests but none proceeded.
A landmark case was brought before the Dutch Council of State in 2019, which ultimately decided that Dublin transfers could not proceed. The Dutch authorities had sufficiently investigated the living conditions and reception conditions awaiting transfers in Greece. Moreover, they had received adequate individual guarantees from the Greek authorities about the treatment of transferred asylum seekers. However, the Council decided on the basis of the investigation into the functioning of the general asylum procedure in Greece that it did not fulfill the requirements of Article 4 of the Charter, particularly regarding the access to an effective remedy and legal assistance.
As a result, the transfer of this asylum seeker to Greece was not allowed. At the same time, the Council of State seems to keep open the option of future Dublin transfers to Greece, if the quality of the legal assistance in Greece can be assured through a thorough investigation by the decision-making authorities, and in conjunction with individual guarantees from Greek authorities.
Belgian case law
The Belgian Council for Alien Law Litigation (CALL) seems a little less cautious and has allowed the Belgian decision-making authorities (Dienst Vreemdelingenzaken) to restart Dublin transfers of asylum applicants to Greece. The CALL considered in a 2018 case that even if some deficiencies in the asylum procedure and reception conditions still exist, these can no longer be qualified as systematic deficiencies. Therefore, the Council concluded that the general suspension of Dublin transfers to Greece was no longer necessary. The CALL has, however, formulated several restraints. In line with the Commission Recommendation, no unaccompanied minors should be transferred, and Greek authorities must provide individual ‘assurances’ concerning inter alia the reception facility the asylum seeker concerned will be transferred to.
This line of case law was confirmed by the CALL later that year and thus Dublin transfers from Belgium to Greece have recommenced, albeit slowly. In 2019, four Dublin transfers to Greece took place (out of 926 requests).
Different outcomes, similar approaches
The Dutch and Belgian case law on Dublin transfers to Greece differ in their appreciation of the level of fundamental rights protection for asylum seekers in Greece. This leads to a different outcome: Belgian judges have given Dublin transfers to Greece the green light if certain criteria concerning vulnerability and individual assurances are met, whereas the Dutch case law has prevented transfers – for the time being.
While differences exist, there is also a common core to the judicial attitudes of Belgian and Dutch judges. Both the Dutch Council of State and the Belgian CALL have used the 2016 Commission Recommendation as the framework for their assessment. While the Recommendation could serve as a useful starting point – ensuring some consistency throughout EU Member State case law – I find it unsuitable as a legal framework. The different outcomes revealed in the Dutch and Belgian cases make this evident. Instead, the EU Charter of Fundamental Rights, as a piece of binding legislation, should lie at the basis and forefront of such judgments in light of mutual trust.
Fundamental rights and the Dublin system: a balancing exercise
Perhaps with the perception of Dutch and Belgian decision-making authorities that the situation for asylum seekers in Greece is slightly improving, not all transfers would amount to a violation of Article 4 of the Charter like in the M.S.S. judgment of the Strasbourg Court and the N.S. judgment of the Luxembourg Court. Similarly, Belgian and Dutch judges seem to have reasoned that only a violation of inhuman or degrading treatment could prevent a Dublin transfer, though they are not aligned in how strictly they apply this criterion.
However, regardless of which criteria are applied, I believe the Dublin transfer should not proceed without further assessment, even if there is no apparent violation of Article 4 of the Charter. I argue here that national judges should conduct a balancing exercise between protecting fundamental rights (all of those protected by the Charter, not just Article 4) for the individual asylum seeker, on the one hand, and ensuring the effectiveness of EU law and the Dublin system through mutual trust, on the other. In my opinion, it would improve the credibility of the Dublin system if judges were to actually acknowledge that they are ‘tightrope dancing’, i.e. seeking a delicate balance between the effectiveness of EU law and fundamental rights protection.
In line with the Luxembourg Court judgment in L.M. (a European Arrest Warrant case), this balancing exercise would tilt in favor of fundamental rights only when it concerns the ‘core’ of a fundamental right. This implies a link to one of the values enshrined in Article 2 of the Treaty of the European Union, such as the rule of law. If the foreseen violation does not concern the ‘core’ of a fundamental right, the balance tilts in favor of the effectiveness of the Dublin system and EU law as a whole, and the transfer may take place. National judges would then have to investigate in the context of Dublin transfers to Greece if the asylum seeker claimed, for example, that the reception conditions in Greece would violate the core of the right to liberty (Article 6) or the right to education (Article 12). Last but not least, it is important to note that whenever a transfer would be deemed in violation of Article 4 of the Charter it should always be suspended, as Article 4 constitutes an absolute fundamental right. This would be in line with previous European case law.
In this contribution, I argued that even though the Dutch Council of State may have put a (temporary) halt to transfers, and while the Belgian CALL has given the green light, their judicial attitudes are similar. They both use the Commission Recommendation as their framework. However, the EU Charter of Fundamental Rights is the preferred legal framework, because the latter is binding whereas the former is not. In addition, a possible oversight was brought to light; national judges confronted with appeals against Dublin transfers to Greece should not only look at possible violations of Article 4, but also at violations of the ‘core’ of other fundamental rights protected by the Charter.
Lynn Hillary is a PhD Candidate at the Open University of the Netherlands. Her PhD research concerns the principle of mutual trust and external European asylum law.