Effective Remedies under EU Law & ECtHR. EDAL Conference 2014 Dublin, 17 th, 18 th January 2014
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1 Effective Remedies under EU Law & ECtHR EDAL Conference 2014 Dublin, 17 th, 18 th January 2014
2 Two Supranational Courts
3 Sources: C Costello The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles in Baldaccini, Guild, Toner (eds) Whose Freedom, Security and Justice? EU immigration and asylum law after 1999 (Hart publishing, 2007), pp Available as UNHCR New Issues in Refugee Research Working Paper No 134, November 2006, at < >
4 Sources: C Costello, 'Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored ' (2012) Human Rights Law Review 287 C Costello, 'The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?' (2012) Asielen Migrantenrecht 83
5 Sources: FRA / ECtHR Handbook on European Law relating to asylum, borders and immigration (2013), Chapter 4 ook_asylum_eng.pdf
6 Key Distinctions ECHR Article 6 inapplicable Article normal source of effective remedy Fact-sensitive determinations CJEU General principles general scope Strong right to effective judicial protection National procedural autonomy subject to equivalence & effectiveness Harmonisation? EU PD, Recast PD
7 ACCESS TO PROTECTION
8 Access to Protection Strasbourg Hirsi and Others v. Italy, Application no /09 (access - jurisdiction) M.S.S. v. Belgium and Greece, June 2010, Application no /09 (access Dublin) Luxembourg EU jurisdiction without territory? Case C-411/10 NS C- 493/10 ME 21 December 2011 Case C-648/11 MA & Others v UK best interests (2013) Mirrors Strasbourg BUT Systemic Breach
9 Key question Has Luxembourg undermined the Strasbourg caselaw? CC: The CJEU test seems more difficult to meet that the ECtHR, if we read systemic deficiencies as an additional requirement to be met. However, I urge that such a reading be rejected. Luxembourg has no mandate to interpret Article 4 EUCFR in a manner that undermines Strasbourg s interpretation of Article 3 ECHR. Moreover, the CJEU itself in NS/ME was emphatic that it was faithful to MSS. Accordingly, we should adopt an interpretation of the Luxembourg test which does not treat systemic deficiency as an additional hurdle for applicants, but rather an element of the risk assessment.
10 UK Supreme Court (pending) Appeal from Court of Appeal ruling in EM (Eritrea) v SSHD [2012] EWCA Civ 1336
11 Hussein v Netherlands & Italy Application 27725/10, Mohammed Hussein et al. v NL + ITA (2 April 2013) Transfer to Italy Rule 39 granted Inadmissible MSS threshold not met See Para 78
12 Daytbegova v Austria (2013) Application 6198/12 Daytbegova v Austria, 4 June 2013 Rule 39 granted to stay return to Italy Para 66 Italian authorities aware of vulnerability and could assist
13 Halimi v Austria & Italy (2013) Application No 53852/11 Halimi v Austria & Italy 18 June 2013 Similar reasoning
14 Abubeker v Austria (2013) Application no /11 Abubeker v Austria, 18 June 2013
15 Mohammed v Austria (2013) Application 2283/12 Mohammed v Austria, 6 June 2013 Transfer to Hungary MSS threshold not met
16 Pending Grand Chamber Case Application No 29217/12 Tarakhel v Switzerland Rule 39 granted Grand Chamber Hearing: 12 February 2014 General situation in Italy + specific vulnerabilities Afghan couple + 5 children
17 C-394/12 Abdullahi Opinion of AG CRUZ VILLALÓN 11 July 2013
18 1. Article 19(2) - no individual right to have their applications examined by a particular Member State responsible in accordance with the Regulation. The scope of the appeals - Charter rights 2. Effects of first entry into the territory of the Union persist for three months 3. Member State with systemic deficiencies - exempted from the responsibility under the DR
19 CJEU: 11 December 2013 Article 10(1) Member State of the first entry is responsible - only way in which the applicant for asylum can call into question that criterion is by pleading systemic deficiencies = substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 EUCFR.
20 Critique, Maria Hennessy: rnal/dublin-system-and-right-effective- remedy%e2%80%93-case-c abdullahi
21 ASYLUM PROCEDURES
22 Asylum Procedures Strasbourg Articles Application No. 9152/09 IM v France 2 February 2012 Application No 33210/11 Singh and Others v Belgium 2 October 2012 Luxembourg Case C-69/10 Diouf, 5 February 2010 Case C-277/11 MM v Ireland, 22 November 2012 Case C-175/11 HID, BA v Ireland
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Field: BVerwGE: No. Professional press: Yes. Sources in law:
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