Abstract
On the basis of a comparative analysis of a series of key asylum cases (most of which decided around the time of or after the entry into force of the ToL), this section seeks to critically examine the jurisprudence of the ECJ and the ECtHR in the field of asylum vis-à-vis the ECHR and the EU Charter, in consideration of the fact that in Europe these two courts have gradually established themselves as the two key “regional refugee law courts.
Many of the ideas developed in this section are the result of collaborative research with Dr Ippolito conducted during my Visiting Professorship at the University of Cagliari, School of Law, Italy (March–August 2012).
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Notes
- 1.
See Ref. [1] who demonstrate how institutional change does not necessarily trigger policy change.
- 2.
See Ref. [2], p. 54.
- 3.
This important concept is examined in the next section.
- 4.
- 5.
- 6.
See Ref. [8].
- 7.
See Ref. [9].
- 8.
See Case C-571/10, Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others, Judgment of the Court (Grand Chamber) of 24 April 2012, nyr, at paras 62–63.
- 9.
Article 6(3) TEU provides that: ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’
- 10.
The autonomy of the Union’s legal system has been most notoriously emphasized in the Kadi ruling, see Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.
- 11.
See Ref. [10], at 335.
- 12.
Asylum cases also concern other Convention rights. Specifically, Article 2 ECHR (right to life), Article 4 ECHR (prohibition of slavery, servitude, and compulsory labour), Article 5 ECHR (right to liberty and security of the person), Article 6 ECHR (right to a fair trial), Article 7 ECHR (prohibition on retroactive criminal punishment), Article 8 ECHR (right to respect for family and private life), Article 9 ECHR (right to freedom of thought, conscience, and religion), Article 10 ECHR (freedom of expression), Article 11 ECHR (freedom of assembly and association), Article 13 ECHR (right to an effective remedy), Article 14 ECHR (prohibition of discrimination in the enjoyment of Convention rights), Article 4 of Protocol No. 4 (collective expulsion of aliens), Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens), Article 3 of Protocol No. 7 (exclusion of own nationals), Article 4 of Protocol No. 7 (prohibition on double jeopardy), Article 1 of Protocol No. 12 (general prohibition on discrimination); see further Refs. [11, 12]; Council of Europe and European Union Agency for Fundamental Rights (2013), Handbook on European Law relating to asylum, borders and immigration (Luxembourg: Publications Office of the European Union); on Article 13 ECHR and asylum, see Ref. [13].
- 13.
See e.g. Salah Sheekh v. the Netherlands, Application No. 1948/04, judgment of 11 January 2007 at para 135; Cruz Varas and others v. Sweden, Application No. 15576/89, judgment of 20 March 1991; Vilvarajah and others v. the United Kingdom, Application nos. 13163/87, 13164/87 and 13165/87, judgment of 30 October 1991; Chahal v. the United Kingdom, Application No. 22414/93, judgment of 15 November 1996 and Amuur v. France, Application No. 19776/92, judgment of 25 June 1996; Saadi v. Italy, Application No. 37201/06, judgment of 28 February 2008.
- 14.
As held by the former European Commission of Human Rights in CFDT v European Community, Application 8030/77, decision of 10 July 1978. EU accession to the ECHR is beyond the scope of this investigation. It has been debated and examined for over 30 years and is well-documented, see e.g. Article 6(2) TEU, Protocol (No. 8) relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, [2007] OJ C306/155; Protocol 14 to the European Convention of Human Rights and Fundamental Freedoms, amending the Control System of the Convention, of 13 May 2004, ETS 194, specifically Article 59(2) ECHR in order to allow a non-state entity such as the EU to accede to the ECHR; [38]; [14–18]. For further information, visit the Council of Europe dedicated webpage on EU accession, http://hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention.
- 15.
See e.g. Matthews v United Kingdom, Application No. 24833/94, Judgment of 18 February 1999, at paras 32–33.
- 16.
See e.g. M & Co. v. Federal Republic of Germany, Application No. 13258/87, Decision of 9 February 1990.
- 17.
See Bosphorus v. Ireland, (Application N° 45036/98), Judgment of 30 June 2005, at paras 155–157.
- 18.
See K.R.S. v. United Kingdom, Application no. 32733/08, 2 December 2008, where the ECtHR held that the system so created ‘protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance.’
- 19.
- 20.
See MSS, at para 300.
- 21.
See MSS, para 160.
- 22.
See SD v Greece, Application No. 53541/07, Judgment of 11 June 2009; Tabesh v Greece, Application No. 8256/07, Judgment of 26 November 2009; AA v Greece, Application No. 12186/08, Judgment of 22 July 2010.
- 23.
See Maiani and Hruschka (2011), see footnote 8 in Chap. 3, at 15, who write: ‘la Cour fait méticuleusement la différence entre le Sollen-ce qui est prévu par la législation nationale-et le Sein-la situation sur le terrain.’
- 24.
The non-refoulement obligation under Article 3 ECHR includes also the so-called “indirect” refoulement which entails return to a country from where there is a risk of onward return to ill-treatment, see T.I. v. United Kingdom, Appl. No. 43844/98, 7 March 2000, p. 15; see also Salah Sheekh v. The Netherlands, 11 Jan. 2007, para 141; in K.R.S. v. UK, Application No. 32733/08, admissibility decision, 2 Dec. 2008, p. 16; and in Abdolkhani and Karimnia v. Turkey, Appl. No. 30471/08, 22 Sept. 2009, at paras 88–89.
- 25.
Now Article 17(1) of the Dublin III Regulation.
- 26.
This is an observation made by Ippolito [39].
- 27.
The Court stressed how such a needed on-going reform process of the CEAS’ instruments was aimed in particular, ‘at substantially strengthening the protection of the fundamental rights of asylum-seekers implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum-seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights’ (at para 350).
- 28.
See para 250; see also Budina v. Russia, Application No. 45603/05.
- 29.
See Ref. [22], at 768.
- 30.
See Ahmed v. the United Kingdom Application No. 31668/05, decision (inadmissible); see also N.A. v. the United Kingdom, Application No. 25904/07 judgment of 17 July 2008, where the ECtHR already held that its supervisory role under Article 19 was confined to examining alleged breaches of provisions of the ECHR (e.g. in that case, Article 3) and therefore any submissions on EU asylum law (concerning the Qualification Directive) fell outside its jurisdiction.
- 31.
See Sufi and Elmi v United Kingdom, Applications nos. 8319/07 and 11449/07, paras 225–226.
- 32.
See C-465/07 Elgafaji and Elgafaji v Staatssecretaris van Justitie ECR [2009] I-921.
- 33.
See Sufi and Elmi v United Kingdom, para 241.
- 34.
See Ippolito, in Ippolito and Velluti (2014), see footnote 26.
- 35.
See Hirsi Jamaa and Others v Italy, Application No. 27765/09, 23 February 2012. For critical analysis and case comment, see Ref. [23].
- 36.
The Court also considered the information provided by Mr Jacques Barrot, Vice-President of European Commission in a letter dated 15 May 2009 sent to the President of the European Parliament Committee on Civil Liberties, Justice and Home Affairs in response to a request for a legal opinion on the ‘return to Libya by sea of various groups of migrants by the Italian authorities.’ In the letter he stressed the importance of compliance with the principle of non-refoulement in the context of operations carried out on the high seas by Member States of the European Union; see Hirsi, at paras 135 with 34.
- 37.
Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation from Libya to countries where there is a risk of ill-treatment), a violation of Article 4 of Protocol No. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a domestic remedy for any arguable complaint of a violation of the Convention.
- 38.
See Vilvarajah and Others v United Kingdom Application nos. 13163/87, 13164/87 and 13165/87, Judgment of 30 October 1991.
- 39.
See Hirsi, at paras. 118 and 123.
- 40.
Ibidem, at para 136.
- 41.
For critical commentary and a detailed list of cases of the ECtHR, see Costello (2012), see footnote 177 in Chap. 3, at 278–281.
- 42.
See Chahal v. the United Kingdom, at para 112.
- 43.
See Čonka v. Belgium, at para 38.
- 44.
See Cornelisse (2011), see footnote 95 in Chap. 2, at p. 214.
- 45.
The notion of “arbitrariness” includes elements of inappropriateness, injustice, lack of predictability and due process of law.
- 46.
See Saadi v United Kingdom (Grand Chamber), 29 January 2008, Application No. 13229/03.
- 47.
Ibidem, at para 73. Emphasis added.
- 48.
See Costello (2012), see footnote 177 in Chap. 3, at 283.
- 49.
See Saadi v United Kingdom, at para 74.
- 50.
In Chahal the Court stated that deprivation of liberty will be justified only as long as deportation proceedings are in progress and if these proceedings are not carried out with due diligence, the detention will cease to be lawful under Article 5, see Chahal v. the United Kingdom, at para 113.
- 51.
See Saadi v United Kingdom, at para 79.
- 52.
Ibidem, at para 32.
- 53.
Ibidem, at para 34.
- 54.
Ibidem, at para 34.
- 55.
Ibidem, at paras 34–35.
- 56.
See Ref. [24]; see also the Explanatory Memorandum to the same document by the Rapporteur Mendonça, available at: http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=12435&Language=EN.
- 57.
See Lokpo and Touré v. Hungary, Application No. 10816/10, Judgment of 20 September 2011.
- 58.
See Lokpo and Touré, paras 23–24.
- 59.
See Cornelisse, see footnote 198 in Chap. 3, at p. 215.
- 60.
Ibidem, at p. 215 and 220.
- 61.
See Ippolito, in Ippolito and Velluti (2014), see footnote 26.
- 62.
See Ref. [25].
- 63.
See Ref. [26]
- 64.
In this sense, see Article 52(3) of the EU Charter which provides that in so far as it contains fundamental rights that correspond to those provided by the ECHR, the meaning and scope of the EU Charter’s rights shall be the same as those of the ECHR rights. Hence, the meaning and scope of those fundamental rights that are already guaranteed by the ECHR must necessarily comprise the ECtHR jurisprudence. However, Article 52(3) of the EU Charter does not prevent Union law from providing more extensive protection and consequently the ECHR constitutes a “floor” rather than a “ceiling” for EU human rights law; see further Refs. [27, 28];
- 65.
In a similar vein, see Weiss (2011), see footnote 64, who argues that the ToL has brought challenges to the substance and methodology of human rights protection in the EU.
- 66.
See C-465/07 Elgafaji and Elgafaji v Staatssecretaris van Justitie ECR [2009] I-921; see also Ref. [29]
- 67.
See Ippolito in Ippolito and Velluti (2014), see footnote 26 in this chapter.
- 68.
See Elgafaji, Opinion AG Maduro, at para 20.
- 69.
The Court stated that: ‘it is […] Article 15(b) which corresponds, in essence, to Article 3 of the ECHR,’ while Article 15(c) covers “more general risks of harm” than the “particular ones” Article 15(a) requires the applicant to be “specifically exposed’, see Elgafaji, at para 28.
- 70.
See Elgafaji, at para 43.
- 71.
Ibidem, at para 35.
- 72.
Ibidem, at para 39.
- 73.
Idem.
- 74.
See NA v. the United Kingdom, Application No. 25904/07, at para 115. In this case the ECtHR expressly considered its previous decision in Vilvarajah (Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87) and stated that Article 3 ECHR should not be interpreted so as to require an applicant to show the existence of special distinguishing features if he could otherwise show that the general situation of violence in the country of destination was of a sufficient level of intensity to create a real risk that any removal to that country would violate Article 3 ECHR. In any event, the Court would adopt such an approach only in the most extreme cases of general violence where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return; see also F.H. v. Sweden (Application no. 32621/06, 20 January 2009, at para 93 and Mawaka v. The Netherlands, Application no. 29031/04, 1 June 2010.
- 75.
See Elgafaji, at para 44.
- 76.
See Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration, Judgment of 28 July 2011, Unreported.
- 77.
According to AG Cruz Villalon ‘the right to effective judicial protection has, through being recognized as part of European Union law by virtue of Article 47, acquired a separate identity and substance under that Article which are not the mere sum of the provisions of Articles 6 and 13 of the ECHR. In other words, once the right to effective judicial protection is recognized and guaranteed by the European Union, that fundamental right goes on to acquire a content of its own. […] European Union law as a system of law has given rise to the development of its own set of defining principles.’ (at para 39).
- 78.
See Samba Diouf at para 34. Emphasis added.
- 79.
See Jabari v. Turkey, Application No 40035/98.
- 80.
See Ippolito in Ippolito and Velluti (2014), see footnote 26.
- 81.
See Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Salahadin Abdulla & Others, ECR [2009] I-1493; see Ref. [30].
- 82.
See Abdulla, at para 54.
- 83.
See Case C-31/09, Bolbol v Bevandorlasi es Allampolgarsagi Hivatal ECR [2010] I-5539; see Ref. [31].
- 84.
See Joined Cases C-57/09 and C-101/09, Germany v. B. and Germany v. D. and others, Unreported 17 June 2010, and Opinion of AG Mengozzi, 1 June 2010, at para 78.
- 85.
See Case C-31/09 Bolbol Opinion of AG Sharpston 4 March 2010, at para 38.
- 86.
See Germany v B and Germany v D, at paras. 94 and 96.
- 87.
Ibidem, at para 97.
- 88.
Ibidem, at para 108.
- 89.
- 90.
See Mellon, see footnote 89, at 661.
- 91.
See NS and ME, Opinion of AG Trstenjak, of 22 September 2011.
- 92.
See NS and ME, Opinion of AG Trstenjak, at para 148.
- 93.
See NS and ME, Opinion of AG Trstenjak, at para 146.
- 94.
See Application No. 32733/08.
- 95.
See Costello (2012), see footnote 11, at 327.
- 96.
See NS and ME, Opinion of AG Trstenjak, at para 146.
- 97.
On the content of the right to asylum in Article 18 of the EU Charter and the right to an effective remedy in Article 47 of the EU Charter, see UNHCR (2011), UNHCR Oral Submissions in Joined Cases of NS (C-411/10) and ME and Others (C-493/10) Hearing of the Court of Justice of the EU Luxembourg, 28 June 2011 available at: http://www.refworld.org/pdfid/4e1b10bc2.pdf. The Court did not use either the indicators for the determination of the breach’s seriousness developed by the UNHCR in its oral submission or the points on the impact of the breach on the individual.
- 98.
See NS and ME, at paras 84, 86, 94 and 106. On the contrary, “serious” risks of infringements of individual provisions of the Common European Asylum System Directives in the Member State primarily responsible are not sufficient to create an obligation on the part of the transferring state to assume responsibility for the asylum examination, provided these infringements do not also violate the Charter rights of the asylum-seeker to be transferred. This mirror’s the Opinion of the Adovate general (at para 127).
- 99.
On this point, see Costello (2012), see footnote 11, at 332.
- 100.
See NS and ME, at para 105.
- 101.
See Application No. 30696/09.
- 102.
See N.S. and M.E., at paras 86 and 94.
- 103.
See MSS, at paras 352 and 359. This was in line with the position of UNCAT, see Agiza v. Sweden (2005, at para 13.7); A.S. v. Sweden (2000, at para 8.6) and with the view of the UN Sub-Commission for the Promotion of Human Rights, namely that once a general risk situation is established, there is a ‘presumption’ that the person would face a real risk, see UN Sub-Commission on the Promotion and Protection of Human Rights (2005), Resolution 2005/12 on Transfer of Persons, 10 Aug. 2005, at para 4.
- 104.
In MSS the Grand Chamber of the European Court of Human Rights (ECtHR) attached “critical importance” to UNHCR’s views, see MSS at para 349.
- 105.
In MSS, the ECtHR mentioned the European Commission’s infringement procedures against Greece, in 2006 and 2008, regarding the country’s failure to apply the Reception Conditions Directive and to comply with its obligations under the Dublin Regulation by not adopting the laws, regulations and administrative measures necessary to ensure the examination of applications by asylum-seekers transferred back to Greece under the terms of the Regulation.
- 106.
This concept was first developed by the ECtHR outside EU asylum cases (see e.g. Soering v. United Kingdom, Application No. 14038/88) and has subsequently been applied to Dublin returns (see e.g. T.I. v. United Kingdom, Application No. 43844/98, K.R.S. v. United Kingdom, Application No. 32733/08 and MSS, Application No. 30696/09.
- 107.
See Ref. [35].
- 108.
See Joined Cases C-71/11 and C-99/11 Federal Republic of Germany v Y and Z Judgment of the Court (Grand Chamber) of 5 September 2012, nyr.
- 109.
See Joined Cases C-71/11 and C-99/11, Federal Republic of Germany v Y and Z, Judgment of the Court (Grand Chamber) of 5 September 2012, Unreported, Opinion of AG Bot, 23 April 2012.
- 110.
See Z and T v United Kingdom, Application No. 27034/05, 28 February 2006.
- 111.
Ibidem, at para 86.
- 112.
See Y and Z, at para 67.
- 113.
See Application No. 27034/05.
- 114.
See Y and Z, at paras. 58–66.
- 115.
Ibidem, at paras 68–71.
- 116.
Ibidem, at para 79.
- 117.
See Case C-245/11, K v Bundesasylamt, Judgment of the Court (Grand Chamber) of 6 November 2012, nyr.
- 118.
Ibidem, at para 48.
- 119.
Ibidem, at para 55.
- 120.
Ibidem, at para 52.
- 121.
Ibidem, at para 53.
- 122.
See Case C-528/11, Zuheyr Frayeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerskia savet, nyr, Judgment of 30 May 2013.
- 123.
See Halaf, at paras 40–42.
- 124.
See Case C-4/11, Federal Republic of Germany v Kaveh Puid pending, OJ C 95/3-4, 26 March 2011.
- 125.
See Puid Opinion of AG Jääskinen, 18 April 2013 at paras 57–58.
- 126.
Ibidem, at paras 3 and 39–45.
- 127.
Ibidem, at paras 61 and 63.
- 128.
Ibidem, at para 62. Emphasis added.
- 129.
See Case C-357/09 PPU, Said Shamilovich Kadzoev, [2009] ECR I-11189; there is also a case pending before the ECtHR concerning the lawfulness of his detention under the ECHR, see Kadzoev v Bulgaria, Application No. 56437/07, introduced on 20 December 2007.
- 130.
See European Parliament and Council of the European Union (2008) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98, 24.12.2008.
- 131.
See Chahal v. United Kingdom, Application No.22414/93, 23; Mikolenko v. Estonia, Application No. 10664/05.
- 132.
See Council of Europe (2005), ‘Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)—Twenty Guidelines on forced return’ available at: https://wcd.coe.int/ViewDoc.jsp?id=858071&Site=COE.
- 133.
See Kadzoev, at para 64.
- 134.
See Case C-61/11 PPU Hassen El Dridi alias Soufi Karim, Judgment of the Court (First Chamber) of 28 April 2011, nyr.
- 135.
In particular it cited Saadi, Application No. 13229/03.
- 136.
See Council of Europe (2005), footnote see footnote 131.
- 137.
See above, Sect. 4.2.
- 138.
See Costello (2012), see footnote 177 in Chap. 3, at 302.
- 139.
See Cornelisse, see footnote 95 in Chap. 2, at p. 221.
- 140.
See Article 6(1) TEU.
- 141.
Garlicki talks about “multidimensionality of constitutional protection of human rights” to refer to the growing phenomenon of overlapping legal regimes for the international protection of asylum-seekers and refugees, see Ref.[36], at 509; see also Costello who in relation to detention illustrates how different human rights bodies ‘speak with different voices […], a phenomenon that is […] explained by their different institutional contexts and decisional autonomy’, see Costello (2012), see footnote 177 in Chap. 3, at 260.
- 142.
On the consequences of incoherence, see further Ref. [37].
- 143.
See Praesidium of the European Convention (2007), see footnote 143 in Chap. 2.
- 144.
See Article 53 of the EU Charter equivalent to Article 53 ECHR.
- 145.
See Iglesias Sánchez, see footnote 136 in Chap. 2; see also Scheeck (2005), see footnote 5 and Scheeck (2009), see footnote 7.
- 146.
See Ippolito in Ippo lito and Velluti (2014), see footnote 26; on the concept of a “European ius commune”, see Ref.[40].
- 147.
See J. Callewaert (2008), see footnote 62, at p. 114.
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Velluti, S. (2014). The Role of the European Courts in Ensuring Adequate Standards of Asylum-Seekers’ Human Rights’ Protection in Europe After Lisbon. In: Reforming the Common European Asylum System — Legislative developments and judicial activism of the European Courts. SpringerBriefs in Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40267-8_4
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