NS v Secretary of State for the Home Department

• Jurisdiction: European Union
• Judge: Toader,Trstenjak,Cunha Rodrigues,Tizzano,Ilešič,Arabadjiev,Rosas,Skouris,Malenovský,Lenaerts,Kasel,von Danwitz,Lõhmus,Bonichot
• Date: 21 December 2011
• Docket Number: (Joined Cases C-411/10 and C-493/10)
• Court: Court of Justice of the European Union

Court of Justice of the European Union (Grand Chamber)

(Skouris, President; Tizzano, Cunha Rodrigues, Lenaerts, Bonichot, Malenovský and Lõhmus, Presidents of Chambers; Rosas (Rapporteur), Ilešič, von Danwitz, Arabadjiev, Toader and Kasel, Judges; Trstenjak, Advocate General)

(Joined Cases C-411/10 and C-493/10)

NS

and

Secretary of State for the Home Department 1

ME and Others

and

Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform 2

Human rights — Fundamental rights — Prohibition of inhuman or degrading treatment — Common European Asylum System — Council Regulation (EC) No 343/2003 — Transfer of asylum seeker to Member State responsible for examining asylum application — Whether transfer of asylum seeker compatible with Charter of Fundamental Rights of the European Union, 2000, European Convention on Human Rights, 1950 and Geneva Convention relating to the Status of Refugees, 1951 — Obligations of transferring Member States — Whether acceptable under European Union law for a transferring Member State to apply conclusive presumption that responsible Member State would act in compliance with fundamental rights — Obligation on transferring Member State to exercise right to assume responsibility to examine application itself under Article 3(2) of Council Regulation (EC) No 343/2003

Relationship of international law and municipal law — Treaties — European Union law — Council Regulation (EC) No 343/2003 — Interpretation — Scope of Article 3 of Regulation — Charter of Fundamental Rights of the European Union, 2000 — European Convention on Human Rights, 1950 — Geneva Convention relating to the Status of Refugees, 1951 — Common European Asylum System — Transfer of asylum seeker to Member State responsible for examining asylum application — Member State responsible for examining asylum application listed as safe country in United Kingdom Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 — Whether transfer risking breach of asylum seeker's fundamental rights — Obligations of transferring Member States — Whether transferring Member State under obligation not to expose asylum seeker to risk of human rights violations in responsible Member State

International organizations — European Union — Council Regulation (EC) No 343/2003, Article 3 — Interpretation — Scope — Transfer of asylum seeker to Member State responsible for examining asylum application — Whether transfer risking breach of asylum seeker's fundamental rights — Obligations of transferring Member States — European Union law — European Convention on Human Rights, 1950 — Geneva Convention relating to the Status of Refugees, 1951 — Whether transferring Member State under obligation not to expose asylum seeker to risk of human rights violations in responsible Member State

Aliens — Asylum seeker — Common European Asylum System — Council Regulation (EC) No 343/2003, Article 3 — Transfer of asylum seeker to Member State responsible for examining asylum application — Whether transfer risking breach of asylum seeker's fundamental rights — Obligations of transferring Member States — European Union law — European Convention on Human Rights, 1950 — Geneva Convention relating to the Status of Refugees, 1951 — Whether transferring Member State under obligation not to expose asylum seeker to risk of human rights violations in responsible Member State — The law of the European Union

Summary:3The facts:—NS, an Afghan asylum seeker, travelled from Afghanistan to the United Kingdom through, among other countries, Greece. He was arrested in Greece and subsequently expelled to Turkey. He escaped

detention in Turkey, travelling to the United Kingdom, where he applied for asylum upon arrival. The United Kingdom Secretary of State for the Home Department (“the Secretary of State”) requested that Greece take charge of NS, pursuant to Council Regulation (EC) No 343/2003 of 18 February 2003 (“the Regulation”). The Greek authorities failed to respond within the prescribed period and Greece was deemed to have accepted responsibility for consideration of the claim under the Regulation.

NS was informed on 30 July 2009 that he would be removed to Greece on 6 August 2009. NS requested that the Secretary of State accept responsibility for examining his asylum claim under Article 3 of the Regulation.4 He argued that if he were returned to Greece, there was a risk that his fundamental rights under European Union law, the European Convention on Human Rights, 1950 (“the European Convention”) and the Geneva Convention relating to the Status of Refugees, 1951 (“the Refugee Convention”) would be breached due to the inadequacies of Greece's asylum system. The Secretary of State maintained that NS's claims were unfounded since Greece was listed as a safe country in the Schedule to the United Kingdom's Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

On 6 August 2009, NS applied to the English High Court for judicial review of the Secretary of State's decision and was granted permission to bring his claim. In the meantime, the directions for his transfer were annulled by the Secretary of State. The High Court dismissed NS's claim, stating that the risks of refoulement from Greece to Afghanistan and Turkey were not established where persons had been returned under the Regulation. NS was granted leave to appeal.

NS appealed to the Court of Appeal, challenging his transfer to Greece by the United Kingdom. Having concluded that the appeal raised fundamental questions of European Union law regarding the scope of Article 3 of the Regulation and that article's effect on the rights claimed by NS under the Charter of Fundamental Rights of the European Union, 2000 (“the Charter”)5 and international conventions such as the European Convention, the Court of Appeal stayed its proceedings. It referred the following questions6 to the Court of Justice for a preliminary ruling: firstly, whether, and if so in what circumstances, Member States had to comply with the provisions of the Charter in deciding, on the basis of their discretion under Article 3(2) of the Regulation, whether or not to examine an asylum application instead of the Member State which was primarily responsible; secondly, thirdly and fourthly, whether, and if so in what circumstances, Member States were required, in light of the need to comply with the Charter, to exercise their right to assume responsibility for the examination of an application under Article 3(2) of the Regulation if it were

established that a transfer to the Member State which was primarily responsible would expose the asylum seeker to a risk of violation of his fundamental rights, or to a risk that that Member State would not comply with its obligations under Council Directives 2003/9/EC,7 2004/83/EC8 and 2005/85/EC9 (minimum standards for the procedures and conditions to be applied in relation to asylum seekers); fifthly, whether the Charter accorded asylum seekers who were to be transferred to another Member State under the Regulation a wider scope of protection than Article 3 of the European Convention; sixthly, whether it was compatible with the rights set out in Article 47 of the Charter10 for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to the Regulation, to proceed from the conclusive presumption that that Member State was a safe country in which asylum seekers were not exposed to the risk of expulsion to a persecuting State; and lastly, whether, and if so to what extent, Protocol (No 30)11 could be regarded as an “opt-out” from the Charter for the United Kingdom and the Republic of Poland.

The NS case was joined with Case C-493/10 ME and Others.12 In that case, the following questions were referred to the Court of Justice: whether a transferring Member State was obliged under the Regulation to assess the compliance of the receiving Member State with Article 18 of the Charter (on the right to asylum) and Directives 2003/9/EC, 2004/83/EC and 2005/85/EC as well as the Regulation; and whether, if so, if the receiving Member State was found not to be in compliance with one or more of those provisions, the transferring Member State was obliged to accept responsibility for examining the application.

Opinion of the Advocate General

Held:—(1) A decision made by a Member State under Article 3(2) of the Regulation on whether to examine a claim for asylum which was not its

responsibility under the criteria set out under the Regulation constituted an implementation of EU law for the purposes of Article 51(1) of the Charter13 (paras. 69–83).

(2) A Member State in which an asylum application had been lodged was obliged to exercise its right to examine that asylum application where transfer to the Member State primarily responsible under Article 3(1) of the Regulation would expose the asylum seeker to a serious risk of violation of his fundamental rights under the Charter. On the other hand, a serious risk that individual provisions of Council Directives 2003/9/EC, 2004/83/EC and 2005/85/EC would be infringed was not sufficient to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself (paras. 109–27).

(3) The obligation to interpret the Regulation in a manner consistent with fundamental rights precluded the operation of a conclusive presumption that the Member State primarily responsible for examining an asylum application would observe the asylum seeker's fundamental rights under European Union law as well as all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. However, it was permissible for Member States to proceed from the rebuttable presumption that the asylum seeker's human rights and fundamental rights would be observed in the Member State primarily responsible for the application (paras. 128–36).

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