Within the international and EU legal sources regarding asylum, the Geneva Convention and Protocol on the Status of Refugees contains the international definition of “refugee” and regulates the obligations of Contracting States. Moreover, the Convention establishes the fundamental and general (however not absolute) principle of non-refoulement. The Convention is also an essential element of the EU asylum framework as shown by Article 78 TFEU, according to which EU legislation must be in compliance with the Convention. However, broadly speaking, the Geneva Convention does not regulate the issue of responsibility for examining applications for refugee status, which is instead dealt with by the Dublin III Regulation. The basic purpose of the Dublin III Regulation is, in fact, to prevent multiple applications and ensure a swift handling of applications. Where an application is made in a Member State that is not responsible by virtue of the Regulation, it may ask the Member State that is responsible to take charge of or to take back the applicant. In principle, the responsible Member State must accept this responsibility, with some exceptions enshrined in Article 3(2) of the Regulation related to the risk of inhuman or degrading treatment (see judgments of the European Court of Justice NS of 2011, C-411/10, and CK of 2017, C-578/16 PPU). However, since all Member States can be considered safe countries, the EU system appears to be consistent with the prohibition of refoulement contained in the Geneva Convention also where Article 3(3) of the Dublin III Regulation allows Member States to refuse to examine an application and return the applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU. In this regard, in the light of Article 4 of the Charter of Fundamental Rights of the European Union, the ECJ, recalling the case law of the European Court of Human Rights, has recently specified that a third country national, who in the past has been tortured by the authorities of his country of origin, cannot be expelled if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, even though the applicant no longer faces a risk of being tortured if returned to that country (case M.P. of 2018, C-353/16). In this legal framework, the effect of the withdrawal of the UK on the Dublin system in cases involving the UK has to be investigated. In particular, three different scenarios can be drawn. In the first place, it should be clarified the operation of the Dublin system in cases where the UK is involved prior to the withdrawal. In this scenario, a distinction has to be made between the situation where UK, before the departure, makes a request to another Member State, in which the Dublin III Regulation will continue to apply, and the situation where another Member State asks the UK to take charge or to take back an applicant. The European Court of Justice has dealt with this precise question in the case MA of 2019 (C-661/17) and, by interpreting Article 17(1) of the Dublin III Regulation, established that the fact that a Member State, designated as ‘responsible’ within the meaning of that Regulation, has notified its intention to withdraw from the European Union does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue. It is possible to notice how the conclusions drawn by the Court within the immigration policy resembles the one adopted in the case RO of 2018 regarding the European Arrest Warrant (C-327/18 PPU), which rules that a detained person can be surrendered to the UK while it is still a Member State. In fact, a Member State’s notification of its intention to withdraw from the European Union does not have the effect of suspending the application of EU law and, consequently, that law continues in full force and effect in that Member State until the time of its actual withdrawal from the European Union. Notwithstanding the clarity of the case law of the ECJ, some questions remain open. For instance, it is still not clear what happens when a request to take charge (either an outgoing request by the UK or an incoming request to the UK) has been made prior to the UK withdrawal but the transfer itself has not. Neither is it clear which is the relevant date to consider the UK still a Member State, whether the date of the lodging of the request, the acceptance of responsibility by the requested State, the exhaustion of remedies in the requesting State or, finally, the transfer itself. The second scenario regards the period following the withdrawal of the UK, provided that, in a situation that is still very uncertain in this regard, the withdrawal agreement enters into force. This scenario is highly hypothetical since this agreement has so far been rejected by the British Parliament. In reality, the withdrawal agreement (which would come into force after the transitional period has expired unless longer-term arrangements enter into force straightaway) contains no specific provisions regarding the Dublin III Regulation, unlike (just to stay in line with the comparison made above) the withdrawal provisions on the European Arrest Warrant, which are instead very precise. In this context, the Dublin system will presumably be extended with respect to the UK until the expiry of the 21 months (or longer) transitional period established in the agreement, whereas, as to future relationship, the third scenario comes into consideration. The third and last scenario regards, in fact, the long-term future relationship between the UK and the EU27, in relation to which different options can be raised. First, a revival of the Dublin Convention, which was replaced by the Regulation and has not been denounced, could be assumed. Alternatively, a specific agreement between the EU27 and the UK could be negotiated with a view of continuing to apply the Regulation and, perhaps, other aspects of the asylum acquis. The last and worst option is the one where no specific action is taken given the comparatively small number of Dublin transfers to and from the UK (according to the AIDA ECRE Country Report on United Kingdom, 2018 Update, the net “gain/loss” was less that 1.000 transfers in 2018). However, should this last hypothesis happen, it must not be underestimated that, as a common law legal order, the case law created around the Dublin III Regulation will continue to apply, at least if its provision will be confirmed at a domestic level and in so far as the protection of fundamental rights is concerned, whereas the collaboration between the UK and EU Member States would be interrupted. This last consequence would be particularly serious considering that, regardless the number of transfers, the UK replaced Austria as the fifth main receiving country and the proportion of applicants in the main receiving countries, in particular Italy, France, Greece, the UK and Sweden, almost doubled between 2016 and 2017 (Annual Report on the Situation of Asylum in the EU in 2017).
The future of the Common European Asylum System in the light of Brexit: is there still a role to play for EU immigration law?
FRATEA
2021-01-01
Abstract
Within the international and EU legal sources regarding asylum, the Geneva Convention and Protocol on the Status of Refugees contains the international definition of “refugee” and regulates the obligations of Contracting States. Moreover, the Convention establishes the fundamental and general (however not absolute) principle of non-refoulement. The Convention is also an essential element of the EU asylum framework as shown by Article 78 TFEU, according to which EU legislation must be in compliance with the Convention. However, broadly speaking, the Geneva Convention does not regulate the issue of responsibility for examining applications for refugee status, which is instead dealt with by the Dublin III Regulation. The basic purpose of the Dublin III Regulation is, in fact, to prevent multiple applications and ensure a swift handling of applications. Where an application is made in a Member State that is not responsible by virtue of the Regulation, it may ask the Member State that is responsible to take charge of or to take back the applicant. In principle, the responsible Member State must accept this responsibility, with some exceptions enshrined in Article 3(2) of the Regulation related to the risk of inhuman or degrading treatment (see judgments of the European Court of Justice NS of 2011, C-411/10, and CK of 2017, C-578/16 PPU). However, since all Member States can be considered safe countries, the EU system appears to be consistent with the prohibition of refoulement contained in the Geneva Convention also where Article 3(3) of the Dublin III Regulation allows Member States to refuse to examine an application and return the applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU. In this regard, in the light of Article 4 of the Charter of Fundamental Rights of the European Union, the ECJ, recalling the case law of the European Court of Human Rights, has recently specified that a third country national, who in the past has been tortured by the authorities of his country of origin, cannot be expelled if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, even though the applicant no longer faces a risk of being tortured if returned to that country (case M.P. of 2018, C-353/16). In this legal framework, the effect of the withdrawal of the UK on the Dublin system in cases involving the UK has to be investigated. In particular, three different scenarios can be drawn. In the first place, it should be clarified the operation of the Dublin system in cases where the UK is involved prior to the withdrawal. In this scenario, a distinction has to be made between the situation where UK, before the departure, makes a request to another Member State, in which the Dublin III Regulation will continue to apply, and the situation where another Member State asks the UK to take charge or to take back an applicant. The European Court of Justice has dealt with this precise question in the case MA of 2019 (C-661/17) and, by interpreting Article 17(1) of the Dublin III Regulation, established that the fact that a Member State, designated as ‘responsible’ within the meaning of that Regulation, has notified its intention to withdraw from the European Union does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue. It is possible to notice how the conclusions drawn by the Court within the immigration policy resembles the one adopted in the case RO of 2018 regarding the European Arrest Warrant (C-327/18 PPU), which rules that a detained person can be surrendered to the UK while it is still a Member State. In fact, a Member State’s notification of its intention to withdraw from the European Union does not have the effect of suspending the application of EU law and, consequently, that law continues in full force and effect in that Member State until the time of its actual withdrawal from the European Union. Notwithstanding the clarity of the case law of the ECJ, some questions remain open. For instance, it is still not clear what happens when a request to take charge (either an outgoing request by the UK or an incoming request to the UK) has been made prior to the UK withdrawal but the transfer itself has not. Neither is it clear which is the relevant date to consider the UK still a Member State, whether the date of the lodging of the request, the acceptance of responsibility by the requested State, the exhaustion of remedies in the requesting State or, finally, the transfer itself. The second scenario regards the period following the withdrawal of the UK, provided that, in a situation that is still very uncertain in this regard, the withdrawal agreement enters into force. This scenario is highly hypothetical since this agreement has so far been rejected by the British Parliament. In reality, the withdrawal agreement (which would come into force after the transitional period has expired unless longer-term arrangements enter into force straightaway) contains no specific provisions regarding the Dublin III Regulation, unlike (just to stay in line with the comparison made above) the withdrawal provisions on the European Arrest Warrant, which are instead very precise. In this context, the Dublin system will presumably be extended with respect to the UK until the expiry of the 21 months (or longer) transitional period established in the agreement, whereas, as to future relationship, the third scenario comes into consideration. The third and last scenario regards, in fact, the long-term future relationship between the UK and the EU27, in relation to which different options can be raised. First, a revival of the Dublin Convention, which was replaced by the Regulation and has not been denounced, could be assumed. Alternatively, a specific agreement between the EU27 and the UK could be negotiated with a view of continuing to apply the Regulation and, perhaps, other aspects of the asylum acquis. The last and worst option is the one where no specific action is taken given the comparatively small number of Dublin transfers to and from the UK (according to the AIDA ECRE Country Report on United Kingdom, 2018 Update, the net “gain/loss” was less that 1.000 transfers in 2018). However, should this last hypothesis happen, it must not be underestimated that, as a common law legal order, the case law created around the Dublin III Regulation will continue to apply, at least if its provision will be confirmed at a domestic level and in so far as the protection of fundamental rights is concerned, whereas the collaboration between the UK and EU Member States would be interrupted. This last consequence would be particularly serious considering that, regardless the number of transfers, the UK replaced Austria as the fifth main receiving country and the proportion of applicants in the main receiving countries, in particular Italy, France, Greece, the UK and Sweden, almost doubled between 2016 and 2017 (Annual Report on the Situation of Asylum in the EU in 2017).
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