On November 6, the Grand Chamber issued an important judgment on the interpretation of the humanitarian clause of the Dublin Regulation. It found that a State is obliged to apply, of its own motion, the Regulation’s humanitarian clause where it would “bring together” dependent family members. That State must therefore assume responsibility for an asylum seeker who would otherwise be required to seek asylum elsewhere under the Regulation’s criteria.
Regulation 343/2003 (the ‘Dublin Regulation’) sets down criteria to determine which Member State is responsible for the examination of an asylum claim. The Regulation has, however, proved to be deeply flawed and “dysfunctional” in practice, best illustrated by the Greek asylum crisis. Regrettably, the long overdue proposal for a recast Dublin Regulation has failed to undertake “the fundamental re-think required” and the proposed text has been criticized as a “missed opportunity”.
Given the underwhelming political reforms, the task of remedying human rights violations suffered by refugees under the EU asylum rules has fallen to the judiciary. The Strasbourg Court has made great progress in refugee protection, culminating in the landmark MSS v Belgium and Greece decision.
The Luxembourg Court has begun – somewhat more tentatively – to follow suit. In the most recent example, the CJEU ruled yesterday (Case C-277/11 M.M.) that fundamental rights, specifically the right to be heard, must be respected where a State considers applications for subsidiary protection in a separate procedure from the refugee status determination (which has the effect of excluding the application of the Procedures Directive). In September, the Court condemned the French practice of denying social assistance to the so-called “Dublinés”, asylum seekers awaiting transfer to another State to have their asylum application examined, and ruled that the Reception Conditions Directive must apply to all asylum seekers (Case C-179/11 Cimade et GISTI).
Most importantly, in the NS & ME case (Case C-411/10 and C-493/10), decided in December 2011, the CJEU followed the ratio of MSS, holding that “Dublin” transfers must be suspended where the transferring State cannot be unaware of systemic deficiencies in the asylum system of the responsible State which give rise to substantial grounds for believing that the asylum seeker will face a real risk of being subjected to inhuman and degrading treatment contrary to Article 4 of the Charter. While we would have reservations about the Court’s reasoning (for an excellent analysis, see Cathryn Costello’s article) and might have hoped for a position closer to that adopted by AG Trstenjak, who posited that a State has a duty to take responsibility for the asylum seeker if a Dublin transfer would expose them to serious risk of violating (any) fundamental rights, its judgment represents important progress.
The K case continues in this line of jurisprudence and goes a step further by converting the discretion to promote family unity contained in the “humanitarian clause” into an automatic obligation.
Case C-245/11 involved the plight of a woman known as K. After entering Poland irregularly and applying for asylum in March 2008, she continued onwards to Austria to rejoin her adult son and his family and applied for asylum there in April 2008. Her son’s family had already been recognized in Austria as refugees.
Before long, K’s daughter-in-law became dependent on K’s presence. Prior to arriving in Austria, K’s daughter-in-law suffered a brutal and traumatic event which left her with serious health and psychological problems – the nature of the event was such that the Court declined to disclose it for fear of violent reprisals against her. Her illness rendered her unable to attend to her children and the State was threatening to remove them from her care. This threat was lifted when K arrived – she took care of the children and became the daughter-in-law’s “confidante and closest friend”.
Meanwhile, the Austrian authorities determined that they were not responsible for K’s asylum application – she would have to return to Poland to apply for asylum. Poland duly agreed to take her back. K appealed to the Asylgerichtshof, which referred two questions to the CJEU concerning the application of the Dublin Regulation’s so-called “sovereignty” and “humanitarian” clauses.
Article 3(2) of the Regulation, the “sovereignty clause”, simply provides that a State “may” take responsibility for an asylum application even if it would not otherwise be responsible. Article 15, the “humanitarian clause”, provides that a State may bring together “family members as well as other dependent relatives” on humanitarian grounds by taking responsibility for an asylum seeker that they would not otherwise be responsible for.
Article 15(2) provides that:
In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy of a new-born child, serious illness, severe handicap or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.
The referring court first asked whether Article 15(2) (considering it the lex specialis) signified that a State which is prima facie not responsible for the asylum seekers becomes automatically responsible on humanitarian grounds, in a situation of dependency such as the present. Moreover, must that State take responsibility even where the prima facie responsible State has not requested it to? Secondly, the referring court asked whether Article 3(2) signified that a State which is prima facie not responsible becomes automatically responsible if transfer back to the responsible State would result in a violation of the fundamental rights enshrined in Articles 3 and 8 ECHR or Articles 4 and 7 EUCFR (namely, the prohibition of inhuman and degrading treatment and the right to private and family life).
The Court ruled in the affirmative, finding that:
where the conditions stated in Article 15(2) were satisfied, the Member State… is obliged to take charge of an asylum seeker, becom[ing] the Member State responsible for the examination of the application for asylum.
The Court adopted a teleological reading of the provision, setting down broad interpretations of “dependency” and “family member”.
First, the Court addressed the argument that “dependency” referred only to situations where the asylum seeker was herself dependent on her family for assistance and not vice versa. This position found support in the AG’s conclusions, with AG Trstenjak ultimately finding that Article 15(2) did not apply for this reason. In contrast, the Court found that “dependency” must necessarily refer to both situations where the asylum seeker is dependent on the family and situations where a family member present in that State is dependent on the assistance of the asylum seeker. This interpretation complies with the objective of Article 15 of the Dublin Regulation, namely to all States to bring families together where necessary on humanitarian grounds.
Second, the Court found that “family”, for the purposes of Article 15, must necessarily have a wider meaning than the definition of “family members” under Article 2(i) of the Regulation. The definition under Article 2(i) – confined to spouses or long term partners, dependent minor children and parents if the asylum seeker is a minor child– has been the source of much criticism, severely restricting the notion of family unity for the purposes of the binding criteria in Articles 6-8. The Court held that a broader concept of family was inherent in Article 15, pointing to the reference, in the English language version of the Regulation, to the term “another relative”. Moreover, the Court considered that since the purpose of the humanitarian clause is:
to derogate from the criteria regarding sharing of competences between the Member States in order to facilitate the bringing together of family members where that is necessary on humanitarian grounds, [it] must be capable of applying to situations going beyond those which are the subject of Articles 6 to 8 of the Regulation, even though they concern persons who do not fall within the definition of ‘family members’ within the meaning of Article 2(i) of [the] Regulation.
Finally, the language of Article 15(2) speaks of “normally” keeping a family together – this, said the Court, must be understood as an obligation to take responsibility for an asylum seeker which cannot be derogated from, save in an exceptional situation.
Turning to the issue of whether a prior-request is required, the Court pointed to the obligation on national authorities to ensure the Dublin Regulation is carried out
in a manner which guarantees effective access to the procedures for determining refugee status and which does not compromise the objective of the rapid processing of an asylum application.
This “objective of speed” would be compromised if one had to wait for the responsible State to request that the other country take responsibility. Although Article 15(1) provides for such a request, the Court found that this would unnecessarily prolong the procedure and inhibit the “obligation to act speedily”. Therefore, where the authorities are satisfied that a situation of dependence within the meaning of Article 15(2) exists, they simply “cannot ignore the existence of that particular situation” and the making of a request “becomes redundant… Such a requirement would be purely formal in nature”.
In sum, since K’s family is dependent on her, Austria is responsible for the examination of her asylum request, and they must “assume the obligations which go along with that responsibility”. Austria should inform the State that was previously responsible (Poland) but it is not necessary for the latter to make a request in accordance with Article 15(1) of the Regulation.
Having come to this conclusion, the Court found it unnecessary to answer the (much more significant) second question, namely, whether Article 3(2), the sovereignty clause, creates an automatic obligation to take responsibility where fundamental rights will be placed in jeopardy. The referring court also enquired, cryptically, whether it may apply “more extensive notions of inhuman treatment or family at variance with the interpretation developed by the European Court of Human Rights”?
The importance and potential consequences of this question reach much further than the first – indeed, one can imagine that that is precisely why the Court avoided it. That the Court declined to comment on the second question reminds us to be circumspect about the impact of the Court’s holding – it is a narrow holding in so far as it is limited to the set of circumstances enumerated in Article 15(2) and, as the AG notes in her conclusions, the language suggests that there was little margin for discretion – the State must “normally” keep the family together. Moreover, the Court was not inclined to rely on or invoke human rights instruments.
That said, the decision is to be welcomed. The Court promoted and affirmed the importance of family unity for refugees and illustrated that the derogations under Article 15 and 3 can be used to mitigate some of the injustices of the Regulation as applied. It adopted a broad and teleological reading of the humanitarian clause, reading out the request requirement for the purposes of Article 15(2). It affirmed that the objective of the Regulation must be to ensure effective access of the asylum seeker to refugee status determination.
Crucially, it broke new ground by holding that the State must automatically assume responsibility for the asylum seeker – contrast NS & ME where the Court was not prepared to find a duty to take responsibility, even after a finding that transfer to the responsible State was prohibited because of the risk of inhuman and degrading treatment. The judgment will also have to be considered by the EU legislators, since the proposed recast Regulation would limit the humanitarian clause to children, siblings and parents.
Perhaps the most poignant aspect of this case is that it came to the European Court in the first place, which speaks to the problematic attitudes towards asylum across Europe. As noted by Professor Peers, the “case should never have arisen at all, because the Austrian officials concerned should have seen the obvious human problems at stake in this case and applied the humanitarian clauses in the law as they were always intended to be used”.