User:KaiserAI/M.S.S. v Belgium and Greece

M.S.S. v. Belgium and Greece (2011) is a landmark European Court of Human Rights (ECtHR) case challenging Belgium’s implementation of the European Union’s “Dublin II” Regulation No. 343/2003 as well as Greece's treatment of asylum seekers.

Geneva Convention on Refugees
Article 33 of the Geneva Convention Relating to the Status of Refugees enshrines the principle of non-refoulement globally, prohibiting repatriation of asylum seekers if persecution is likely. "Art 33(1): No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

European Convention on Human Rights
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been signed by all European Union (EU) Member States and forms an integral part of the Union’s legal order. Article 3 incorporates non-refoulement via its guarantee that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 enshrines the right to an “effective remedy before a national authority” in the event of a violation.

Dublin Regulation
"Main article: Dublin Regulation"The 2003 “Dublin II” Regulation (No. 343/2003) was preceded by the Dublin Convention, negotiated alongside the Schengen Convention in 1990. The Dublin system was designed to ensure rapid and substantive evaluation of asylum applications by assigning responsibility to a single Member State, thereby preventing issues of “asylum shopping” (mass migration to whichever state has the most lenient asylum process or most generous reception benefits) or “asylum seekers in orbit” (a situation arising when no Member State accepts responsibility for an application).

Chapter III of the Regulation describes a hierarchy of criteria used to determine the Member State responsible for evaluating an asylum application. Family unity and the welfare of unaccompanied minors are prioritized: the claims of unaccompanied minors with family present in a Member State are always examined by that state. Adult asylum seekers with family members who are either recognized refugees or asylum applicants themselves must have their claims assessed where their nuclear family members are located. Otherwise, the application is reviewed by the state which issued that asylum seeker’s visa or legal residence document. In cases of illegal immigration where such documents are lacking, an application is examined by the first Member State that the asylum seeker entered. Nevertheless, Article 3(2), known as the “sovereignty clause,” permits Member States to exercise discretion and evaluate applications lodged by third-country nationals for any reason, even if another state bears responsibility under the aforementioned criteria.

The Dublin Regulation is based on mutual trust and a presumption that Member States “are considered as safe countries for third-country nationals,” attesting implicitly that Dublin transfers do not violate the principle of non-refoulement. This assumption is theoretically justified by the fact that all Member States are signatories of the Geneva Convention on Refugees and the ECHR. The Regulation does not specify whether or under what conditions the presumption of safety may be rebutted.

T.I. v. the United Kingdom
T.I. v. the United Kingdom (2000) concerned a Sri-Lankan asylum seeker who had first entered the European Union through Germany but applied for asylum in the United Kingdom. Following the United Kingdom’s request that Germany accept responsibility for reviewing the application, T.I. argued that German authorities would likely repatriate him and consequently endanger his Article 3 rights. Although the Court deemed T.I.’s application inadmissible due to a lack of evidence concerning the inadequacy of German review, it held that the Dublin Regulation’s presumption of safety was refutable, and that countries were responsible for ensuring non-refoulement regardless of what international commitments a receiving state had signed. Nevertheless, this decision left the precise scope of scrutiny unclear.

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland
In Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (2005), the ECtHR inquired whether Ireland had violated the ECHR by impounding certain Yugoslavian aircraft in order to comply with sanctions implemented by the EU. The Court recognized that the need to avoid ECHR circumvention must be counterbalanced by its desire to promote international cooperation and avoid interfering in internal Union affairs. Consequently, it articulated a policy of conditional deference via the “Bosphorus presumption:” because the European Court of Justice (ECJ) represents a “comparable” human rights enforcement mechanism, the ECtHR may presume “that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its [EU] membership.” This presumption may be refuted in any particular instances where protections of Convention rights are “manifestly deficient.”

K.R.S. v. the United Kingdom
K.R.S. v. the United Kingdom (2008) addressed the removal of an Iranian asylum seeker to Greece under the Dublin Regulation. The applicant cited a position paper by the UN High Commissioner for Refugees (UNHCR) arguing that poor asylum procedures in Greece “may give a rise to the risk of refoulement.” Although the ECtHR reiterated its T.I. principle of refutability, it simultaneously incorporated Bosphorus-like deference by stressing that a Dublin-mandated return constitutes “the implementation of a legal obligation on the State in question which flows from its participation in the asylum regime created by that Regulation,” and that “the asylum regime so created protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance.”

Facts of the Case
Situated along the EU’s Mediterranean border, Greece serves as the principal southeastern point of entry for those seeking asylum within the Union. By 2010, 90% of all unauthorized EU immigrants were apprehended in Greece, a situation precipitated by the Italian and Spanish governments’ imposition of harsher immigration policies. Hygiene and living conditions in overcrowded detention centers along the Greco-Turkish border were described as “appalling.” Greece further failed to register all new arrivals, provide humane shelter to asylum seekers, and process applications in a timely manner. Its positive-decision rate for asylum applications, below 1%, was the lowest in Europe by a significant margin. Poor conditions were partly attributable to the 2008 financial crisis: youth unemployment reached 48% in November 2011, reducing work opportunities for Greek citizens and asylum seekers alike.

M.S.S. was an Afghan national who fled after allegedly escaping a Taliban murder attempt in reprisal for his work as an interpreter for international air force troops. He reached Belgium in 2009 after having traveled through Greece, but was ordered to return to Athens under the Dublin Regulation soon after. Once in Greece, M.S.S. was detained, with limited food, sleep, or access to toilets and open air. Upon his release, he was provided no temporary residence or means of subsistence, leaving him homeless in a nearby park. After a failed attempt to leave Greece under a false identity, M.S.S. was allegedly beaten by police while being detained under similar conditions.

M.S.S.’ petition was allocated to the Second Section of the ECtHR, but was later relinquished to the Grand Chamber (consisting of the Court’s President, vice-presidents, and three section presidents) on March 16, 2010. Cases are typically relinquished in this manner when serious questions concerning interpretation of the ECHR are raised. A public hearing took place on September 1, 2010, and the Court’s decision was issued on January 21, 2011.

Judgment
The ECtHR found that both Greece and Belgium had violated Articles 3 and 13 of the ECHR. In reaching this conclusion, the Court considered numerous reports that had not existed when the K.R.S. case had been decided, additionally affording greater credence to the recommendations of the UNHCR.

In a concurrence, Greek Judge Christos Rozakis stressed the need to reform the Dublin Regulation in light of the ECtHR’s conclusions:"It is clear that European Union immigration policy – including the Dublin II Regulation – does not reflect the present realities, or do justice to the disproportionate burden that falls to the Greek immigration authorities. There is clearly an urgent need for a comprehensive reconsideration of the existing European legal regime..."

Article 3
The detention and living conditions in Greece were grounds for a violation of Article 3’s prohibition of “degrading treatment or punishment.” The Court noted that M.S.S.’ claims were consistent with accounts provided by various international bodies and non-governmental organizations, indicating that unjustified detention, brutality, and unassisted homelessness were widespread issues.

Belgium was found to have violated Article 3’s guarantee of non-refoulement by expelling M.S.S. while fully aware of the deficiencies in the asylum procedure as well as the degrading detention and living conditions in Greece. The Court considered a UNHCR letter urging the Belgian government to suspend all transfers to Greece as particularly compelling evidence.

Article 13
Due to its lack of a reliable system for communicating with applicants as well as its shortage of interpreters and legal counsel, Greece was found to have infringed upon the Article 13 right to an effective remedy. Its near-zero success rate for asylum applications was taken as further evidence of an inability to prevent arbitrary removal.

Similarly, Belgium was found to have violated Article 13 due to M.S.S.’ inability to adequately appeal his expulsion order: the Belgian Aliens Appeals Board’s expedited procedures failed to “closely and rigorously” scrutinize conditions in the recipient state.

Bosphorus Presumption
The ECtHR clarified that the Bosphorus presumption only applied under circumstances where states had no discretion in implementing EU law:"State action taken in compliance with such legal obligations is justified as long as the relevant organization is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it exercised State discretion."The Article 3(2) “sovereignty clause” provided states with discretionary powers, which implies that compliance with EU law alone cannot shield them from rigorous review.

Subsequent Jurisprudence
The ECtHR reaffirmed the reasoning underlying its M.S.S. decision in the joined cases N.S. v. the United Kingdom and M.E. v. Ireland. Following this latter decision, Dublin transfers to Greece all but entirely ceased. A further restriction upon the Bosphorus presumption was imposed in the case Michaud v. France, which limited the presumption to instances where the EU law had “deployed its full potential” through ECJ review.

The ECJ adopted conclusions similar to those of M.S.S. soon after in its Cases C-411/10 and C-493/10 (2011). Although the ECJ granted the presumption of safety greater deference, it too noted “substantial grounds” for believing that conditions in Greece amounted to degrading treatment. The ECJ consequently held that further transfers would violate Article 4 of the European Charter of Fundamental Rights, whose text is identical to Article 3 of the ECHR.

Dublin Regulation Revision
The explicit critiques of the ECtHR and the denial of an absolute presumption of safety undermined the Dublin II framework, catalyzing its reform. Consequently, it was replaced by the “Dublin III” Regulation (No. 604/2013) in 2013, which contained updated mechanisms to ensure compliance with the ECHR. Article 33 created an “early warning preparation mechanism” to identify deficiencies and support Member States with strained asylum systems prior to the emergence of a crisis. Moreover, Article 3 recognized the responsibility of Member States to confirm the absence of “systemic flaws in the asylum procedure and in the reception conditions for applicants” prior to any transfer.

Nevertheless, some critics maintain that the 2013 reform failed to address underlying issues including disproportionate burdens for border regions, unnecessary delays during transfers, and variation amongst Member States’ capacities to receive, process, and integrate asylum seekers.

Hungarian Reaction
"See also: Hungarian border barrier"With the de facto removal of Greece from the Dublin Regulation, Hungary became an EU frontline state with respect to immigration. Hungary responded to an influx of asylum seekers by erecting a fence along its border with Serbia and Croatia and establishing designated “transit zones” in 2015. Asylum seekers were barred from entry into Hungary and were required to wait in such zones while their asylum applications were reviewed. Those who entered irregularly through this fence faced imprisonment for up to ten years. Separately, the Hungarian government deemed applications inadmissible if asylum seekers had previously crossed through a “safe third country,” a category that was expanded to include Greece, Serbia, Macedonia, and other states whose asylum processes no other EU member considered sufficiently robust.

Consequently, the European Council on Refugees and Exiles called for a suspension of all Dublin transfers to Hungary in October 2015, invoking the M.S.S. precedent. By December 2016, 15 states’ courts had complied with this recommendation. Most cited the possibility of chain refoulement under Hungary’s “safe third country” policy, particularly with regards to Serbia: Hungary’s government relied on this doctrine to reject 99% of its incoming applications, despite the fact that the UNHCR, UN Committee against Torture, and even the Supreme Court of Hungary rejected its underlying premises. Various national courts also objected to Hungary’s vague and arbitrary grounds for detention, expedited review procedures lacking due process, unsanitary holding facilities, and insufficient financial support for asylum seekers.