Dublin System Challenged Again: Tarakhel v Switzerland

Introduction

Despite aiming for high human rights protection standards, the EU’s Dublin system, which assigns responsibility for each asylum-seeker to one Member State, has repeatedly encountered human rights issues. The recent European Court of Human Rights (‘ECtHR’) judgments in Tarakhel v Switzerland and Sharifi v Italy and Greece further highlight the difficulties in aligning this system with ECHR obligations. Notably, the Tarakhel judgment goes beyond previous rulings by demonstrating that the Court of Justice of the European Union’s (CJEU) interpretation of the Dublin rules also conflicts with the ECHR.

Background

Originating in the Schengen Convention, the Dublin rules were formalized in the 1990 Dublin Convention and later became the Dublin II Regulation in 2003. This was replaced by the Dublin III Regulation in 2013, applying to applications after January 1, 2014. These rules have also been extended to non-EU Schengen-associated countries through agreements with Norway, Iceland, Switzerland, and Liechtenstein.

Significant cases concerning the Dublin regime’s compatibility with human rights include the ECtHR’s 2011 MSS v Belgium and Greece judgment and the CJEU’s NS ruling from the same year. The ECtHR found that Greece had violated Article 3 of the ECHR (prohibiting torture and inhuman or degrading treatment) through its treatment of an Afghan asylum-seeker in detention, inadequate living conditions post-release, and flawed asylum process. Additionally, Belgium violated Article 3 by returning the asylum-seeker to Greece despite knowing the situation there and violated Article 13 (right to an effective remedy) by lacking sufficient case review mechanisms.

Consequently, the CJEU in NS determined that asylum-seekers could not be returned to Greece under the Dublin rules due to systematic deficiencies in its asylum system. Such removals would breach Article 4 of the EU Charter of Fundamental Rights. However, the court differentiated these major violations from minor infringements of refugee-related EU or international rules, which wouldn’t preclude applying the Dublin rules.

Prior to Tarakhel, the CJEU in its 2013 Abdullahi judgment emphasized the presumption of human rights protection in all EU Member States, citing the Common European Asylum System’s second-phase legislation. It viewed the Dublin rules as primarily governing inter-state relations, referencing the Dublin II Regulation’s ‘sovereignty’ and ‘humanitarian’ clauses and options for conciliation or bilateral arrangements. Consequently, when two Member States agreed on the responsible Member State for an asylum-seeker’s entry, challenging this decision was “only” possible by “pleading systemic deficiencies” in the assigned state’s asylum procedure and reception conditions.

The recent Sharifi judgment by the ECtHR established that Italy’s interception and forced return of asylum-seekers from Greece in the Adriatic violated Article 3 and the prohibition on collective expulsions in the ECHR’s Fourth Protocol. This affirmed a crucial aspect of MSS: Member States breach the ECHR by preventing asylum-seekers from fleeing an unsafe country by crossing their borders. While Schengen’s free movement rules for third-country nationals don’t grant asylum-seekers the right to move between Schengen states unless they possess a visa, residence permit, or visa waiver, the ECHR grants them freedom of movement between states in such circumstances. This right extends beyond the three-month limit for intra-Schengen travel, as asylum-seekers can stay until their claim is definitively rejected.

The Tarakhel Judgment

The Tarakhel case involved an Afghan family of eight entering the EU through Italy, making Italy responsible under the Dublin rules. However, finding their assigned reception center inadequate for families, they moved to Austria, prompting Austria to invoke the Dublin rules and request Italy to take charge. Italy agreed, but the family moved to Switzerland before the transfer, leading Switzerland to request Italy’s responsibility, which Italy tacitly accepted.

The family contested their removal to Italy, arguing that it would violate Articles 3 and 8 of the ECHR due to potential ill-treatment. Losing their case in Swiss courts, they appealed to the ECtHR, claiming their removal would breach Articles 3, 8 (right to family life), and 13.

The ECtHR dismissed the Article 13 claim on its merits, as Swiss courts had examined their legal arguments, and the family was allowed to remain in Switzerland. They deemed it unnecessary to address the Article 8 argument. Significantly, a 14-3 majority found a breach of Article 3.

However, unlike MSS, Tarakhel did not assert Italy’s asylum system’s complete collapse. It solely focused on living conditions in Italian detention centers, not flaws in procedures or detention practices.

The ECtHR reiterated its MSS case law regarding asylum-seekers’ reception conditions. While Article 3 doesn’t guarantee housing or financial aid, the court considered EU Member States’ specific obligations under the Reception Conditions Directive. They acknowledged asylum-seekers’ vulnerability and the potential for extreme poverty to raise Article 3 concerns. The court also cited prior case law emphasizing the need to ensure protection and humanitarian assistance for child asylum-seekers, given their extreme vulnerability.

The court reaffirmed the general rule that Article 3 prevents removal if “substantial grounds” indicate a “real risk” of Article 3-violating treatment in the destination state, a rule applicable to challenge the presumed safety of Dublin system countries. The ECtHR referenced the CJEU’s “systemic deficiencies” test from NS but omitted Abdullahi’s assertion that this was the “only” ground for challenging Dublin rule application. Notably, they acknowledged the UK Supreme Court’s recent EM judgment, which explicitly stated that “systemic deficiencies” were not the only basis for such challenges. The court concluded that these tests required examining “the applicant’s individual situation in light of the overall situation” in the destination state.

Applying these rules, the applicants’ complaints about the Italian reception system’s slow identification procedures were dismissed as unfounded, given their quick identification. Regarding insufficient accommodation, the court acknowledged the evidence. The UNHCR and the Council of Europe’s Human Rights Commissioner had identified issues within available facilities.

The court concluded that “Italy’s current situation cannot be compared to Greece’s during the MSS judgment,” where a small fraction of asylum-seekers could be accommodated, and “extreme poverty…existed on a large scale.” Therefore, a blanket ban on removing asylum-seekers to Italy wasn’t warranted. However, the court acknowledged the risk of asylum-seekers lacking accommodation or experiencing inadequate conditions.

The applicants’ individual circumstances differed from MSS. The Italian government promptly assisted the family, unlike the detention and subsequent abandonment in MSS. Nevertheless, the court expressed concern that, considering asylum-seekers’ and particularly children’s vulnerability, Italy offered no guaranteed (adequate) accommodation for asylum-seeking families. Consequently, Switzerland couldn’t return the family without sufficient assurances, constituting a breach of Article 3.

It’s noteworthy that the majority judgment omits the CJEU’s alternative solution from its recent Saciri judgment on the Reception Conditions Directive: asylum-seekers securing private family housing at the state’s expense.

Comments

With due respect, the CJEU’s judgment in Abdullahi suffers from numerous flaws. It conflates directly applicable regulations with conventions governing inter-state relations. It unduly relies on unutilized provisions of the Dublin II Regulation (conciliation) or those irrelevant to the case (bilateral arrangements). It disregards the CJEU’s jurisprudence on challenging Dublin II rule application concerning unaccompanied minors (MA), humanitarian grounds (K), or withdrawn applications (Kastrati). Its scope is ambiguous: Does it solely apply to irregular entry agreements or more broadly? Regardless, the Dublin III Regulation, expanding procedural rights for asylum-seekers in the Dublin context, necessitates revisiting this judgment.

The most significant flaw in Abdullahi lies in its assertion that, in some cases, the responsible Member State determination can “only” be challenged based on “systemic deficiencies” in that state’s asylum system. Does this hold true after Tarakhel?

The statement is undeniably flawed if the CJEU intended (as it seemed) that both the asylum procedure and reception conditions must fail before challenging a transfer. Tarakhel raises no concerns regarding Italy’s asylum procedure. Moreover, the Italian reception system hasn’t entirely collapsed: The Tarakhel family faces potential accommodation issues, not extreme poverty or inhumane detention. Consequently, Switzerland’s obligations are nuanced: Transfers aren’t banned, but they must make arrangements with Italian authorities.

It remains unclear whether Tarakhel rejects Abdullahi’s “systemic deficiencies” as the sole justification for challenging Dublin transfers or significantly modifies the concept, lowering the threshold. The first interpretation suggests “systemic deficiencies” are one instance where the presumed safety of another Dublin state can be refuted, with uncertainty about adequate reception conditions for families being another. However, this list can’t be exhaustive.

Alternatively, a “systemic deficiency” wouldn’t solely constitute a complete asylum system collapse but encompass instances where a specific aspect malfunctions regularly to some degree. Analogously, a car needs fixing not only when brakes fail entirely but also when windshield wipers intermittently malfunction. While the first scenario poses a higher risk, the second shouldn’t be disregarded. Similarly, Tarakhel’s issues shouldn’t be the sole trigger for addressing flaws before transferring asylum-seekers.

These two interpretations of Tarakhel differ marginally. While the first is more open-ended, it’s plausible to argue that any problem an asylum-seeker might encounter in the responsible Member State is “systematic” in this broad sense. The second interpretation allows the CJEU to backtrack from its rigid Abdullahi stance and claim this was its intended meaning of “systemic deficiencies.”

Given Abdullahi’s emphasis on the Dublin system’s efficiency, this wasn’t the court’s intended meaning. Yet, Tarakhel unequivocally conveys that a simple binary between halting all Dublin transfers or proceeding at full speed doesn’t exist. Like a traffic light, this judgment introduces an intermediate category requiring national administrations to exercise caution. This undoubtedly adds complexity and costs to the Dublin system’s administration but often represents the sole path towards effective human rights protection.

Barnard & Peers: chapter 9, chapter 26