The two referring Courts, the Court of Appeal of England and Wales, and the Irish High Court referred a number of questions relating to ‘Greek transfers’ under the Dublin Regulation to the Court of Justice. The first question considered by the Court of Justice was, essentially, whether a decision adopted by a Member State on the basis of Article 3(2) of the Dublin Regulation to examine a claim for asylum which is not its responsibility under the criteria in the Dublin Regulation falls within the scope of EU law, and Article 51 of the Charter. The Court replied, inter alia, that the discretionary power conferred on the Member States by Article 3(2) forms part of the mechanism for determining the Member State responsible for an asylum application, and that a Member State exercising that discretionary power must be considered as implementing EU law within the meaning of Article 6 TEU and Article 51(1) of the Charter. The second set of questions related to, inter alia; (a) whether Member State is obliged to assess compliance of a receiving Member State with EU fundamental rights; (b) whether a conclusive presumption that a receiving Member State will observe fundamental rights is precluded; (c) whether a host Member State is obliged to accept responsibility for examining an asylum claim where a responsible State is found not to be in compliance with fundamental rights; and (d) whether national ‘safe country’ provisions are compatible with Article 47 of the Charter. The Court considered these matters together. The Court stated, inter alia, that Member States must make sure that they do not rely on an interpretation of secondary legislation which would be in conflict with the fundamental rights protected by the EU.
The Court stated that it must be assumed that the treatment of asylum seekers in all Member States complies with the Charter, the Geneva Convention, and the ECHR, but that it is not inconceivable that the system may experience major operational problems. The Court said it would not be compatible with the aims of the Dublin Regulation were the slightest infringement of secondary EU law to to prevent the transfer of an asylum seeker. It went on to state, however, that if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in a Member State, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, transfer to such a State would be incompatible with the Charter. Accordingly, the Court found that the presumption that Member States comply with the Charter, Geneva Convention, and ECHR must be regarded as rebuttable, and that a conclusive presumption that a Member State responsible under the Dublin Regulation observes fundamental rights is precluded under EU law.
The Court ruled that Article 4 of the Charter must be interpreted as meaning that a Member State may not transfer an asylum seeker under the Dublin Regulation where it cannot be unaware that systematic deficiencies in the asylum procedure and reception conditions in a receiving Member State amount to substantial grounds for believing that the asylum seeker would face
International Protection, Including Asylum | 83 a real risk of being subjected to inhuman or degrading treatment under Article
4. The Court further ruled that, subject to Article 3(2) of the Dublin Regulation, where a Member State finds that it is impossible to transfer an applicant to another Member State under the Dublin Regulation, the Member State must continue to examine the criteria in Chapter III of the Dublin Regulation in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.
Finally, in respect of the second set of questions, the Court ruled that the Member State in which the applicant is present must ensure that it does not worsen a situation where an applicant’s fundamental rights have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time, and that, if necessary, the Member State where the applicant is present must examine the application under Article 3(2) of the Regulation. In respect of Greece, the Court found that the extent of the infringement of fundamental rights described in M.S.S. v. Belgium and Greece, unreported, ECtHR, 21 January 2011, shows that there existed in Greece a systemic deficiency in the asylum procedure and reception conditions. The Court noted that information such as that cited by the ECtHR regarding relevant risks to which asylum seekers would be exposed enables Member States to assess the functioning of the Member States’ asylum systems, making it possible to evaluate risks.
7.2.4.2
Reliance on Article 7 of the Dublin Regulation Should be
Timely
Aslam v. Minister for Justice and Equality, Unreported, High Court, Hogan J, 29 December 2011
This judgment of the Irish High Court dealt with three issues. Firstly, considering that Islamic marriages by proxy are not necessarily considered valid in Ireland, the question arose whether the applicant’s case fell within the scope of Art. 7 of the Dublin Regulation. The Court opined that while the marriage presented some ‘unusual features’, and while discrepancies were found in the marriage certificate, the ‘conflict of law rules should be open-minded, tolerant, flexible and accommodating of different legal cultures and traditions’. Moreover, the Court observed that the Irish legislation dealing with family reunification does not require the marriage to be recognisable as valid in Irish law. Accordingly, the Court decided that the applicant should be regarded as married for the purposes of the application of Article 7.
The second issue was whether it was too late for the applicant to rely on the terms of Article 7 in challenging the validity of the transfer order. The Court held that the language of Article 7 makes it clear that the applicant has to choose the enjoyment of the right set forth in it ‘at the appropriate time and place’. The applicant, however, did not disclose information regarding her
marriage at the relevant time. Not only did she state she was single in her asylum claim, but she also failed to avail of the right of appealing the initial transfer order. Hence, in the view of the Court, the applicant ‘elected to have her asylum application dealt with on the basis that she was single and unmarried’ and it was therefore now too late for her to invoke Article 7 of the Regulation.
The third issue related to the applicant’s medical condition. As a transfer back to the UK by boat or plane was deemed to be unnecessarily harmful for the applicant and her unborn child, the Court granted an interlocutory injunction restraining her transfer by either sea or by air to the UK. However, the Court decided not to restrain the Minister from transferring the applicant by road to Northern Ireland on the understanding that she would not be removed from the island pending the birth of her child.