An asylum appeals case in Ireland that has been referred to Europe’s highest court, to test the legality of transferring asylum seekers between member states, may force the EU’s hand in changing its controversial rules.
In a ruling that may have far-reaching consequences, Ireland’s High Court made a preliminary reference to the European Court of Justice after five asylum seekers contested a decision by the Irish government to send them back to Greece under EU rules.
The asylum seekers from Afghanistan, Iran and Algeria were issued with transfer orders under the Dublin II regulation – an EU law that stipulates an asylum application should be decided in the EU state where the migrant first sets foot.
Although the asylum seekers are not contesting the fact that they entered the EU through Greece, they are alleging their human rights would be infringed if they were returned to Greece as it does not operate a fair or humane asylum system.
EU sources said this week’s unprecedented case could have serious implications for the future implementation of the EU’s Dublin regulations, particularly with countries like Malta that are associated with receiving high numbers of asylum applications.
“It is a fact that the EU does not yet have a common asylum policy, meaning individual member states are adopting their own rules which differ from one another,” the sources said.
“These are now being challenged through this case and if the ECJ upholds the Irish request it will mean asylum seekers could start refusing to abide by the current EU rules, pushing member states to agree to changes.”
Greece was recently harshly criticised on the way it dealt with asylum claims and this was instantly used by the asylum seekers involved in this case.
The critical legal point, expected to be at the centre of the ECJ deliberations, relates to the discretion each member state has to determine whether to send an asylum seeker back under the Dublin II regulation.
The UN High Commissioner for Refugees argues EU states must consider if a person’s rights are breached if they are returned to a state that does not have a functioning asylum system.
However, the Irish government and several other EU states – that are likely to join the ECJ case – argue the discretion not to issue transfer orders should be severely limited.
The Commission has already proposed the Dublin II regulations should change but is facing strong resistance from various member states, particularly northern countries.
The Maltese government believes the Dublin II rules place an unfair burden on Malta and similar southern member states, which due to their geographical proximity to Africa receive more asylum applications than other countries.
Apart from receiving more than 10,000 illegal immigrants since it joined the EU in 2004, with the majority applying for asylum, Malta had to accept another 300 deported from EU member states after they were found to be on EU territory illegally and identified as having first entered the EU through Malta.
Following Malta’s persistent claims for change, the Commission had issued a set of proposals back in December 2008. This included the possibility of suspending the Dublin rules in EU countries such as Malta, which faced a disproportionate burden as a result of their geographic and demographic situation.
In May 2009, the European Parliament gave its consent to these proposals but the amendments are still pending as various EU governments are opposing them claiming they will have a negative effect on their asylum policies. On its part the Commission has been accusing member states of lack of solidarity with member states like Malta, Cyprus and Italy.
“The proposals are currently blocked as not all member states agree with them. The Irish case referred to the ECJ might eventually unblock the situation,” Commission sources told The Times.
Although asylum applicants in Malta are normally hosted in detention or open centres, some still find a way of escaping and continuing their journey to mainland Europe.