The European Union's Dublin II Regulation funnels asylum claims to the states through which applicants first entered Europe. But what happens when the state of first entry fails to uphold its obligations under international refugee law? The question of how other Dublin member states should address Greece's disastrous asylum system has been answered differently by nearly every national court that has entertained the question, illustrating the difficulty of reconciling competing legal norms.In the first half of 2009, Greece saw over 80,000 undocumented migrants cross its borders and received the sixth largest number of asylum applications (nearly 10,000) in the EU. Greece's asylum system simply cannot cope with the flow of applications; in late 2009, only 20 claims were registered per day at the Asylum Department in Athens though up to 2,000 people each day wait in line to apply for asylum. Ninety percent of asylum claims are filed in that office, as it is reportedly difficult to file claims outside of Athens. Even those asylum seekers who are able to access the process are often interviewed in a language they can't understand, without interpretation, and without legal counsel to advise them of their rights.
In 2007, Greece granted 8 asylum claims in the first instance - a grant rate of 0.04% -- and 138 claims, a grant rate of 2.05% on appeal. All of the 305 decisions in late 2006 to early 2007, relating to applicants from Afghanistan, Iraq, Somalia, Sri Lanka, and Sudan, were negative. None of these decisions contained any discussion of the facts of individual cases or provided any legal reasoning. Greece's asylum system is, simply put, non-functional.UNHCR first stepped into the fray in 2007, issuing an advisory note about the risks of refoulement for asylum seekers transferred to Greece under Dublin II. In 2008, UNHCR stepped up the pressure through a position paper communicating its grave concern with Greece's asylum system and advising governments "to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice." And in 2009, UNHCR published a detailed observation paper indicting the the Greek asylum system.
Finally, last week, UNHCR released a report on Dublin member states' use of the "sovereignty clause", Art. 3(2) of the Dublin II Regulation, against transfers to Greece. The sovereignty clause authorizes a member state to process an asylum claim even where the Dublin criteria would require that the claim be heard in a different country. While data on the application of the clause are scarce, UNHCR reports that it is rarely used except to protect vulnerable asylum applicants. In the past year or so, however, states have increasingly relied on the sovereignty clause to suspend transfers to Greece.
And here's the legal tussle -- there's quite a dispute, akin to a circuit split in the United States, brewing over the interpretation of the sovereignty clause. In other words, national courts can't agree on the circumstances under which member states can double back on Dublin. Some national courts have focused on the sufficiency of procedural safeguards (France, Romania), while others ask whether transfer would result in a violation of Article 3 (prohibition of torture) or 8 (right to family life) of the European Convention on Human Rights (Austria, Hungary). French and Spanish courts emphasize the need to examine the risk of return on a case-by-case basis, with the latter providing an exception for vulnerable asylum applicants, including families with small children. On the other end of the spectrum, Belgian courts have found that since Greece is an EU member state, party to the ECHR and the Refugee Convention, and bound by EU instruments, the court must presume Greece will uphold these obligations. As a result, the burden is on the asylum seeker to rebut this presumption with proof of a risk of violations of ECHR Article 3. Similarly, Dutch courts have required tangible or specific indications that a member state isn't fulfilling its international obligations and have suggested that complaints about failure to implement EU law should be raised in Greece with Greek authorities.
It should come as no surprise that asylum applicants have petitioned the European Court of Human Rights to hear their complaints about Dublin transfers to Greece. At the beginning of this month, there were a reported 760 such cases pending before the ECHR. M.S.S. v. Belgium and Greece, the lead case on this question, will be heard by the ECHR's Grand Chamber on September 1. Stay tuned!
