The European Court of Human Rights has ruled that Belgium was wrong to deport an asylum-seeker back to Greece – because it judges the Greek asylum system to be deficient.
The judges’ verdict, given on 21 January, is the court’s first ruling on the European Union’s regulation known as Dublin II, which allows member states to deport people seeking asylum to the member state by which they first entered the Union, without hearing their applications.
The judgment could have far-reaching consequences because close to 1,000 similar cases, most of them concerning transfers to Greece, are currently pending before the court in Strasbourg, and Greece is the EU’s main entry point for asylum-seekers and undocumented migrants.
At least half a million asylum-seekers are thought to be living in Greece without any legal status. In the opinion of the United Nations High Commissioner for Refugees (UNHCR), the Greek asylum system has “collapsed”.
The European Court of Human Rights has ordered the temporary suspension of transfer orders in 531 cases, which affect Belgium, Finland, France, the Netherlands and the United Kingdom. Even before the ruling, Belgium, Sweden and the UK had suspended transfers to Greece, with Germany doing the same two days before the ruling. Iceland and Norway, which are not members of the EU but apply the Dublin II regulation, have also suspended returns to Greece. Around 7,000 asylum-seekers are thought to have been facing return to Greece in 2010 under the Dublin II mechanism.
The European Commission proposed at the end of 2008 some revisions of the regulation as part of its work toward a Common European Asylum System. Under the changes put forward at that time, the Commission would be able to propose the suspension of returns to a particular member state. But several EU member states – including France, Germany, the Netherlands, Sweden and the UK – object to the proposal, fearing that countries such as Greece would no longer have an incentive to reform their asylum systems.
“The proposal would create some breathing-space for member states that are overwhelmed by applications,” a diplomat said, “but it would also create perverse incentives.
“The failure of one member state should not put the entire system in question,” he said.
Cecilia Malmström, the European commissioner for home affairs, called on member states and MEPs to work toward “a balanced compromise” on the Commission’s proposal.
“An emergency mechanism for suspending transfers in cases of particular pressure on the asylum system would contribute to build more trust and genuine support between the Dublin partners,” she said. A spokesperson for Malmström said: “We haven’t seen the progress we consider necessary in the discussions at the Council.”
Andrew Geddes, a professor at the University of Sheffield who specialises in research on the EU’s migration policy, said that the ruling was “highly significant” because it “begins to pave the way for a common system with increased standards”.
“We are now seeing greater scope for courts to intervene, which will challenge the race to the bottom that has been evident in the implementation of EU asylum policy,” he said.
In Friday’s ruling, the court found Belgium and Greece to have violated Articles 3 and 13 of the European Convention on Human Rights, which deal with the prohibition of inhuman or degrading treatment or punishment and the right to an effective remedy.
Detention conditions in Greece and deficiencies in its asylum procedure were judged to be in violation of the convention. Belgium was deemed to have violated it by exposing the plaintiff – an Afghan national – to such conditions and by denying the applicant an effective remedy against his expulsion order.
Malmström said after the ruling: “The European Commission is aware of the efforts already put in place by the Greek authorities and will continue to support Greece’s actions to manage the unprecedented flows of migrants and asylum-seekers.”
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