By Anthea Galea
On 19 March 2019, in Jawo vs. Germany, the Court of (ECJ) the question of whether the Charter of Fundamental Rights of the European Union (the Charter) prohibits the transfer of an asylum applicant to the Member State responsible for processing the asylum application if there is a serious risk that the applicant will be subjected to inhuman or degrading treatment. The ECJ established that when deficiencies in the asylum system of a Member State put a person who has been granted international protection in a situation of extreme material poverty, in which his or her most basic needs are not met, the threshold of a high level of severity is reached. As a result, the asylum seeker may not be transferred. In contrast to previous judgments, namely N.S. and Others and C.K. and Others, the ECJ considered the applicant’s circumstances after having been transferred to the responsible Member State and granted international protection. In addition, this judgment provides another instance in which the principle of mutual trust – which is the cornerstone of the Common European Asylum System (CEAS) – can be rebutted, leading to an asylum applicant not being transferred.
Mr Jawo, a Gambian national, left Gambia and reached Italy by sea; he lodged an asylum application in Italy. As he made his way to Germany, he submitted another asylum application in Germany. The German Federal Office for Migration and Refugees rejected Mr Jawo’s application because he had already filed an asylum application in Italy, and ordered his transfer to Italy. In an appeal filed by Mr Jawo before the Higher Administrative Court in Germany, the appellant argued that the transfer to Italy was inadmissible because of systematic flaws in the asylum procedure and in the for asylum applicants in Italy, meaning that a transfer would go against Article 3(2) of the Dublin III Regulation.
The Higher Administrative Court referred the case to the ECJ for a preliminary ruling on whether, in assessing the lawfulness of the transfer to Italy, the national court had to take into account Mr Jawo’s living conditions and the serious risk of his being subjected to treatment contrary to Article 4 of the Charter once he had been transferred to Italy and granted international protection.
Extreme material poverty: the threshold for non-transfer
In the present judgment, the ECJ refers to the importance of the principle of mutual trust, particularly within the CEAS which requires the transfer of an applicant to the responsible Member State to examine the asylum application (para. 82). Within this context, the ECJ reiterates the presumption that all Member States comply with the Charter and the Geneva Convention (para. 82). However, it is not inconceivable that the system within a Member State might have problems. Applicants for international protection might, therefore, not be treated in a manner that gives full respect to their fundamental rights, including the right not to be subjected to inhuman and degrading treatment (para. 83). The Court clarifies that when national courts are seized with cases concerning a transfer decision, an assessment needs to be carried out to determine whether there are systematic deficiencies to the detriment of the person’s rights.
For the first time, the Court provides the criteria that must guide the assessment carried out by the national courts in determining whether there are systematic deficiencies of a particularly high level of severity leading to a real risk of inhuman or degrading treatment. In paragraph 91 of its judgment, the Court states that the deficiencies must attain a particularly high level of severity, and that this level is reached when “the indifference of the authorities of a Member State result in the person wholly dependent on State support, finding himself, […] in a situation of extreme material poverty” which, in turn, “does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity” (para. 92). If this is the case, the applicant must not be transferred because of the real risk of inhuman or degrading treatment.
However, the ECJ clarifies that “a high degree of insecurity or a significant degradation of the living conditions of the person concerned”, as well as an absence of integration programmes, less favourable social protection or poorer living conditions in the requested Member State when compared to the requesting Member State, do not reach the threshold of a particularly high level of severity leading to a situation of extreme material poverty (para. 93). In fact, in the present case, the ECJ states that the mere fact that the asylum seeker did not have a family support structure did not mean that he would face extreme material poverty.
While the criteria that guide the assessment to determine whether there are systematic deficiencies of a particularly high level of severity are provided by the ECJ for the first time in the Jawo case, the European Court of Human Rights had already considered this in M.S.S vs Belgium & Greece which concerned the transfer of an asylum seeker. In the latter judgment, the European Court of Human Rights established that prior to transferring an asylum seeker to the Member State responsible, national courts are to consider whether a situation of extreme material poverty is in breach of Article 3 of the European Convention on Human Rights on the prohibition of torture, inhuman or degrading treatment (para. 252-254). It follows that the ECJ has derived the criteria to determine deficiencies of a particularly high level of severity from the M.S.S judgment of the European Court of Human Rights.
A novel case
In N.S. and Others, the Court stated that the transfer of an asylum seeker can be incompatible with Article 4 of the Charter when there are substantial grounds to believe that there are “systematic flaws in the asylum procedure and in the reception conditions for asylum applicants in the Member State responsible” (para. 86). Furthermore, in C.K. and Others, the Court looked at the actual transfer of the asylum applicant to the requested Member State. The Court concluded in that case that although the requested Member State had no systematic failures in its asylum procedure and reception conditions, the transfer of an asylum applicant who is seriously ill could, in itself, still entail a risk of inhuman or degrading treatment (paras. 71-74).
In contrast to the two judgments mentioned above, in the present case the Court considers whether there can be a breach of Article 4 of the Charter by analysing the circumstances of the applicant after the person is transferred to the requested Member State and granted international protection. This is the first time that the Court has considered the expected living conditions of the beneficiary of international protection in another Member State. It therefore adds another instance in which the assessment of a particularly high level of severity is to be taken into account in deciding whether to transfer an applicant to the responsible Member State. However, the Court has set a high bar for a successful argument that an applicant should not be transferred because of a breach of Article 4 of the Charter. The non-transfer of the applicant is justified when the beneficiary of international protection would live in a situation of extreme material poverty to the extent that he cannot meet his most basic needs.
As the cornerstone of the CEAS, the principle of mutual trust provides the necessary safeguards to avoid having to check the level of protection and respect for fundamental rights in other Member States for every individual case. However, since Member States can breach fundamental rights, the principle of mutual trust – like other presumptions – can be rebutted. While the above-mentioned case law, including the Jawo case, provides for circumstances that merit the non-transfer of an applicant following the appropriate assessments and the establishment of a real risk of inhuman and degrading treatment, the balance between the principle of mutual trust and its rebuttal is maintained. Ultimately, the rebuttal of the principle of mutual trust should only occur in exceptional circumstances, in order to preserve the functioning of the CEAS.