To trust or not to trust? New dilemmas in the case of a risk of indirect refoulement following a Dublin procedure for transfer of asylum seekers

By Marcella Ferri

The protection of fundamental rights under the Dublin system has been a very challenging issue in the European Court of Justice (ECJ) jurisprudence which, for that matter, has fruitfully benefited of the dialogue with national courts and the European Court of Human Rights. Beginning with the seminal judgement in N.S., the Court of Justice has strived to ensure a difficult balance between mutual trust and protection against torture and inhuman or degrading treatment. Following two requests for preliminary ruling issued in April and May 2021 by two Italian Courts, the ECJ must now address new dilemmas. Both requests concern the possible suspension of the Dublin procedure where, after the transfer of the asylum seeker to the competent Member State which has already denied his asylum request, he is likely to be deported to his country of origin in which he would run a real risk of torture or inhuman or degrading treatment. Once again, the suspension of the Dublin mechanism to ensure fundamental rights, namely protection against indirect refoulement, is at the heart of the issue. And, once again, mutual trust and the lack of a uniform implementation of EU law among Member States are the elephants in the room.

Introduction

Thanks to judicial interaction, the European Court of Justice (ECJ) has developed a very prolific jurisprudence on mutual trust in EU asylum law, particularly on the Dublin cooperation. Notably, the interplay between fundamental rights and mutual trust has been widely discussed by the ECJ, following national courts’ requests for preliminary ruling and taking into due account the European Court of Human Rights (ECtHR) jurisprudence.

Under the Dublin system, which is currently governed by the Regulation No 604/2013 (Dublin III Regulation), allocation of responsibility for examining asylum requests is based upon some objective criteria. It follows that where the asylum applicant is present in a Member State which, according to the Dublin criteria, is not competent to examine his request, a transfer procedure to the competent Member State can be carried out. Pursuant to the principle of mutual trust (Opinion 2/13 of the ECJ), the transferring State must presume that the competent Member State will treat the asylum request in compliance with EU law, and particularly with the fundamental rights guaranteed by the EU Charter of Fundamental Rights (CFR).

However, reality does not always correspond to principles, and the transfer to the competent Member State may turn out to be contrary to the asylum seeker’s fundamental rights. That is why since 2011, the ECJ has identified some fundamental rights exceptions to the Dublin procedure. Notably, in its seminal case N.S., the ECJ stated that the Dublin transfer — which at that time was ruled by the Dublin II Regulation — may not be carried out where «there are substantial grounds for believing» that in the competent Member State «there are systemic flaws» affecting the asylum procedure and reception conditions for asylum applicants which result in inhuman or degrading treatment, within the meaning of Article 4 CFR (point 86).

However, the requirement of systemic deficiencies preventing the transfer, as defined in N.S. and later codified in Article 3(2) of the Dublin III Regulation, is very narrow and unable to take into account the applicant’s individual conditions. Such a high threshold provoked the reaction of the ECtHR (Tarakhel v. Switzerland) and of some national courts (see Moraru) which led the ECJ to move away from the systemic flaws requirement. Then, the ECJ identified some circumstances where, due to the applicant’s particular vulnerability, the transfer in itself (C.K.), the asylum procedure or even the situation which the applicant would experience in the event of asylum being granted (Jawo) would expose him to a risk of ill-treatment. In such situations, even if the systemic deficiencies requirement is not fulfilled, the absolute nature of Article 4 CFR prevents from carrying out the transfer (for a more detailed analysis, see, among others, Brouwer and Anagnostaras).

The issue of the interplay between mutual trust and fundamental rights in the asylum field is far from being resolved. Following two requests for preliminary ruling issued in April and May 2021 by two Italian Courts, namely the Court of Rome (C-254/21) and the Court of Florence (C-297/21), the ECJ is now seized with new and very challenging dilemmas.

The risk of indirect refoulement following a Dublin procedure in front of the ECJ

The factual backgrounds at the origin of the two requests for preliminary ruling are very similar. The cases concern two Afghan nationals who submitted an asylum request to the competent Member States, respectively, Sweden and Germany; after their applications were rejected, they travelled to Italy, where they submitted a second request. However, since according to the Dublin criteria Italy was not competent to examine their applications, the Italian administrative authority ordered their transfer to the competent States. The asylum applicants challenged these transfer decisions before the referring courts, claiming that, following their transfer, they were likely to be deported to their country of origin where they would run a real risk of torture or inhuman or degrading treatment. In other words, they argue that the execution of the Dublin procedure would expose them to a risk of indirect refoulement, in violation of Article 4 CFR — and of Articles 2 and 3 of the European Convention of Human Rights. Therefore, they invoked the application of the sovereignty clauseset out by Article 17(1) of the Dublin III Regulation, which stipulates that every Member State may decide to examine an asylum request that is lodged with them, even if it is not responsible for its examination according to the Dublin criteria.

Clearly, the risk of indirect refoulement significantly differs from the risk scrutinised by the ECJ in N.S. and its progeny, because it stems neither from the systemic flaws in the competent Member State (N.S.; Article 3(2) of the Dublin Regulation) nor from the applicant’s particular vulnerability (C.K. and Jawo), but from the further deportation to the country of origin.

Moreover, this new challenge affecting mutual trust is rooted in the different recognition rates for some nationalities, particularly the Afghan one (see ECRE Policy Note 17, 2019). Notably, according to the national authorities of some Member States, some areas of Afghanistan could be considered as an internal protection alternative, within the meaning of Article 8 of the Qualification Directive. Needless to say, that scenario profoundly changed after Kabul falling to the Taliban last summer (see Querton). Despite that, the two preliminary rulings keep to be relevant because the issue of risk of indirect refoulement may also arise in relation to other third-country nationals, such as the Pakistanis (see Court of Rome, decision n. 15369 of 10 May 2019 on the transfer of a Pakistani national to Austria where his application has already been rejected).

The request for preliminary ruling addressed by the Court of Rome focuses on the relationship between mutual trust and the Dublin system. Notably, the Court of Rome doubts whether the national judge seized of an action for the annulment of a transfer decision, under Article 27 of the Dublin III Regulation, must assess the existence of a risk of indirect refoulement, in compliance with Articles 4 and 19 CFR, and then must apply the sovereignty clause. Particularly, it stresses that in the case of the risk of indirect refoulement, the judge of the transferring Member State would not examine the situation existing in the competent Member State (like in N.S., C.K. and Jawo), but rather on the risk of ill treatments in the country of origin. It entails that such a judicial assessment would result in a fresh examination of the asylum request which has been already examined by the competent Member State, according to its legitimate interpretation of the information on the security situation in the country of origin, in compliance with the Qualification Directive.

Against this background, the Court of Rome asks to the ECJ, among others, to determine whether the right to effective judicial protection (Article 47 CFR) must be interpreted as meaning that Articles 4 and 19 CFR ensure the protection against the risk of indirect refoulement following the transfer to the competent Member State which has already examined and rejected the application.

The Court of Rome, aware that the suspension of the Dublin procedure due to the risk of indirect refoulement might seriously compromise the principle of mutual trust, also asks the ECJ whether the judicial authority, seized of an action against the transfer decision under Article 27 of the Dublin Regulation, «must assess» the existence of the risk of indirect refoulement when the competent Member State has already given a different interpretation to the notion of internal protection, within the meaning of Article 8 of the Qualification Directive, and excluded such a risk. Moreover, the referring Court inquires whether the assessment of the indirect refoulement, resulting from the different interpretation given by different Member States to the notion of internal protection, is compatible with the general principle preventing third-country nationals from choosing the Member State in which to make their application. Finally, in the event that the ECJ recognised that the risk of indirect refoulement must be assessed by the national judge asked to annul the transfer decision, the Court of Rome asks to the ECJ to determine which criteria must be applied by that judge to assess the said risk — given that this latter has been already excluded by the “first” Member State — and whether, after finding the existence of such a risk, the judge of the transferring Member State is obliged to apply the sovereignty clause.

The preliminary ruling issued by the Court of Florence adopts a different perspective taking note that two lines of interpretation coexist in the Italian case-law on the Dublin transfer in case of a risk of indirect refoulement.

Pursuant the first line of interpretation, the national judge seized of an action under Article 27 of the Regulation, must ensure the respect of the absolute prohibition of inhuman and degrading treatment, as recognised by Article 4 CFR and Article 3 ECHR. Therefore, if after the transfer the competent Member State is likely to deport the applicant to his country of origin where he would run a real risk of inhuman or degrading treatment, the judge of the transferring Member State must apply the sovereignty clause and declare that this latter State must retain responsibility for examining the applicant’s request.

According to the second line of interpretation, held by the Italian Supreme Court of Cassation (see, among others, order 23724/20), the discretion conferred on Member States by the sovereignty clause entails that such a clause can be applied only by the administrative authority and cannot be subject to judicial review. Therefore, the national judge seized of an action for the annulment of a transfer decision cannot apply the said clause and exercise the discretion which is left only to the administration.

The referring Court upholds the first line of interpretation. Firstly, it stresses that the sovereignty clause allows the judicial authority to strike a balance between the protection of fundamental rights and the necessity to rapidly determine the Member State responsible for examining the application. And, as recognised by the ECJ in C.K., even where the Member State primarily designated as responsible is not affected by systemic flaws in the asylum procedure and in the reception conditions, it cannot a priori be excluded that the transfer will not expose the applicant to a real risk of violation of Articles 4 and 19 CFR. Secondly, the sovereignty clause makes it possible to implement the EU law in compliance with the constitutional national identity (Article 4(2) TEU) and the constitutional national tradition (Article 6(3) TEU). As part of the constitutional national identity, the Court of Florence refers to the right to asylum enshrined in Article 10(3) of the Italian Constitution which has a broader scope of application than the international protection defined by the EU law (on the right to asylum in Italian Constitution, see Moraru and Lambert, Messineo, Tiedemann).

Against such a background, the referring court asks the ECJ whether Article 17(1) of the Dublin III Regulation, read in conjunction with Articles 19 and 47 CFR and Article 27 of the Regulation, must be interpreted as meaning that, where there is a real risk of indirect refoulment, the national judge asked to annul the transfer decision may declare that the transferring Member State is competent to examine the asylum request. In the alternative, if the ECJ’s answered to the first question in the negative, the referring Court notes that, as stated by the ECJ in C.K., Article 3(2) of the Dublin III Regulation may also be applied where the existence of a real risk of inhuman or degrading treatment does not result from systemic flaws in the competent Member State. Then, the Court of Florence wonders whether the protection against the risk of indirect refoulment may be ensured by applying Article 3(2) of the Regulation.

Concluding remarks

It is not the purpose here to carry out an in-depth analysis of the possible solutions which might be adopted by the ECJ. However, it is necessary to stress some key points which can enrich the debate on such a sensitive issue.

First of all, Articles 4 and 19(2) CFR ensure protection against indirect refoulement, as well. According to a well-established case-law of the ECtHR, which must be taken into account in compliance with Article 52(3) CFR, the indirect refoulement is an essential component of the prohibition of torture, enshrined in Article 3 ECHR (see, among others, ECtHR, Ilias and Ahmed v. Hungary).

Secondly, on several occasions, the ECJ stressed the optional nature of the sovereignty clause which confers an «absolute discretion» to the Member States (M.A. and others, para. 58). It follows that the risk of fundamental rights breaches following the transfer in itself does not oblige the transferring Member State to apply the clause.

Thirdly, according to the Preamble of the Dublin III Regulation, the remedies set out by Article 27 thereof — which reaffirms the right to effective judicial protection enshrined in Article 47 CFR — must cover «both the examination of the application» of the Regulation and «of the legal and factual situation» in the competent Member State (recital 19). It follows that, as stated by the ECJ in its well-established case-law, the said remedies have a very broad scope (v. Sharpston) and can also cover the application of the sovereignty clause (see, particularly, N.S. and M.A. and others).

Finally, the specificities of the principles of mutual trust and mutual recognition under the Dublin system deserve to be stressed. It is important to remark that, where an asylum applicant is present in a Member State which is not competent to examine his application according to the Dublin criteria, the transferring Member State is not bound by an obligation to transfer him to the competent Member State. By contrast, it does have only a possibility to request and carry out the transfer procedure; otherwise, it may apply the sovereignty clause. Such a possibility characterises also the very peculiar situation where the application has been already examined and rejected by the competent Member State. It follows that it is the Regulation itself that makes it possible for a “second” examination by the transferring Member State, where this latter decides to apply the sovereignty clause.

Marcella Ferri is post-doctoral researcher of EU Law at the University of Florence (marcella.ferri@unifi.it). The topic analysed in this post was discussed during the transnational workshop Rule of Law Challenges to Judicial Cooperation in the Field of European Asylum Law, organized by the University of Florence on 3–4 June 2021 within the European Commission’s funded project “TRIIAL — TRust, Independence, Impartiality and Accountability of judges and arbitrators safeguarding the rule of Law under the EU Charter” (Horizon 2020, project no. 853832, JUST-JTRA-EJTR-AG-2018).

Suggested citation: Marcella Ferri, ‘To trust or not to trust? New dilemmas in the case of a risk of indirect refoulement following a Dublin procedure for transfer of asylum seekers’, CJC blogpost 2021/11/01, https://medium.com/@centreforjudicialcooperation/to-trust-or-not-to-trust-82cbebbac2e

This project has received funding from the European Union’s Justice Programme (2014–2020) under G.A. no. 853832. The European Commission does not accept any responsibility for use that may be made of the information it contains.