No duty to snitch on another EU country’s asylum conditions

Medhanye, R(on the application of ) v Secretary of State for the Home Department [2012] EWHC 1799 (Admin) (02 July 2012)  - read judgment

EU law is based on a central principle of mutual confidence. It therefore flies in the face of this trust to impose a legal duty on one member state to monitor whether another Member State was complying with its obligations under that law, including its obligation to respect fundamental human rights.

Background facts

The claimant, an Eritrean national, sought asylum in the UK, having previously claimed asylum in Italy. The secretary of state decided to remove him to Italy under Regulation 343/2003 (Dublin II). The claimant challenged the Secretary of State’s decision to certify as “clearly unfounded” his claim that removing him to Italy would breach his rights under the European Convention on Human Rights (“ECHR”). His application for judicial review was refused.

Reasons behind the judgment

Under the provisions of the Dublin II Regulation, EU member states are entitled to assume that conditions in the first EU state where an individual seeks asylum are such that returning them to that country will not breach their human rights. This assumption of compliance with international obligations can be rebutted by the “regular and unanimous” reports from international NGOs recording systemic breaches resulting in inhuman and degrading treatment ( NS v Secretary of State for the Home Department). But the CJEU expressly stated in NS that not every infringement of fundamental rights was sufficient to preclude removal.

The claimant sought to distinguish NS from his own position in that NS did not rule out the possibility that, in a case where the contemplated treatment by the receiving State did not amount to inhuman or degrading treatment in breach of Article 4 of the Charter of Fundamental Rights, the transferring State had to nonetheless satisfy itself that the treatment would not violate his right to dignity under Article 1.  But in Kenneth Parker J’s view, this submission  rested upon “a fundamental misreading” of what NS has decided. In that case it was decided that the removal of the applicant to Greece would risk exposing him to degrading treatment contrary to Article 4 of the Charter. But as far as other Charter (and Convention) rights are concerned, the principle of mutual respect should prevail:

The European Union aspires to be a close union, if not a federal system: it is far more, especially at this stage of its development, than a collection of nation states bound together by treaty (as is the case under the ECHR, which of course does not purport to represent any system of political union). The central principle of such a union is that member states of the union have mutual trust and confidence in each other, particularly mutual trust and confidence that each state will faithfully comply with binding provisions of union law, including, most importantly, provisions of union law protecting fundamental human rights. In that context, it might be thought that it would be inconsistent with the principle of mutual trust and confidence to impose a legal duty on one member state in effect to monitor whether another member state was complying with its obligations under union law, including its obligation to respect fundamental human rights.

Taking the United States as ” the paradigm of a mature federal union”, the judge continued, it would be surprising if constitutional or federal law in the United States could legitimately  require one state of the Union, before, for example, extraditing a citizen to another State of the Union, to satisfy itself that the sister State would not treat the citizen inconsistently with his or her rights under the Constitution.

It might be assumed that the public authorities, including the judicial branch, of the sister State would, compliant with a solemn and binding obligation under the Constitution, ensure that the fundamental rights of the citizen were respected in their territory, and that it would run counter to the principle of mutual trust and confidence if other States were under any obligation, or even had a discretion, to investigate whether there was a systemic failure to discharge that duty.

This might well have been the case in the European Union, had the CJEU not taken the “novel” and perhaps “controversial” view that in the asylum context, one member state could be obliged to determine whether another member state was complying with its legal duties under EU law. Nonetheless, with due regard to the “raison d’être” of the EU, the CJEU “very carefully and with great precision” delineated precisely the nature and scope of the legal duty of the transferring Member State, in paragraph 86 of NS:

 if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.

That duty so specified “simply excludes” the independent operation of Article 1 of the Charter, which in fact that CJEU said expressly later in NS  it stated that Articles 1, 18 (right to asylum) and 47 (fair trial) of the Charter do not lead to a different answer.

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