When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers

Amy Dunne, LLB (Trinity College Dublin), Master of Law, KU Leuven (cum laude), PhD candidate Leiden Universiteit and Knowledge Management, Freshfields Bruckhaus Deringer LLP, Brussels 

This submission discusses the limits of the presumption of compliance as encapsulated by the sovereignty clause, Article 3(2), of Regulation (EC) No 604/2013 (Dublin III Regulation) through analysing the evolutions set out in the ECtHR case Tarakhel v Switzerland. It is argued herein that the presumption of compliance has diminished the collective responsibility of Member States for Europe’s asylum seekers – with northern States relying on the presumption to outsource their collective responsibility to southern States, without due regard for fundamental rights concerns, in a manner contrary to the spirit of the Dublin Regulation.

1.1 Article 3(2) Reg No 343/2003 – The Sovereignty Clause

The Afghani family asylum applicants of Tarakhel v Switzerland[1] succeeded in challenging their deportation to Italy; the state in which they first entered into the EU and, by consequence, into the EU’s asylum system i.e. the “Dublin system”.[2] Deportation was challenged on the grounds that the (a) slowness of the identification procedure, (b) the defects in the capacity of the reception facilities (c) and poor living conditions in the available facilities would be tantamount to “inhumane and degrading treatment” in breach of Article 3 European Convention of Human Rights (ECHR).[3] Where fundamental rights concerns are evidenced, a transferring state is under the obligation to examine an asylum application to determine whether a transfer to the primarily responsible state would expose the applicant to a serious risk of a violation of fundamental rights. The obligation to examine an asylum application, for which a transferring state is not responsible, is an exceptional measure applied under Article 3(2) (the so called “sovereignty clause”) of Regulation (EC) No 604/2013 (Dublin III Regulation).[4] The sovereignty clause is formulated in Article 3(2) of the Dublin III Regulation as

“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.”

The effect of Article 3(2) interpretation by the ECtHR jurisprudence on the protection of asylum seekers fundamental rights in the context of the EU legislation is considered hereunder.

1.2 European Asylum System – A Presumption of Compliance

The European asylum system is based on “mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights”[5] with the aim of ensuring that minimum standards for refugees are upheld, that refugees are not doomed in orbit”,[6] that “asylum shopping”[7] is discouraged and that the process of examining asylum applications is regulated within the EU. The Dublin system was enacted to ensure that only one state would assume responsibility for examining an application for asylum.[8] Therefore, this seizure of responsibility under Article 3(2), in one sense, can be said to detract from effective operation of the Dublin system – in so far as it interrupts the automatic transfer of asylum seekers to their designated state as predetermined by the functional schema of the Regulation. In a far greater sense, however, the obligation to assume responsibility under Article 3(2) can be said to be indispensable to ensure that States contracting to the Dublin Regulation do not lose sight of “the imperative to respect fundamental rights when implementing EU legislation.”[9] The attribution of responsibility under the Dublin system is therefore not intended to permit states to wilfully ignore the deficiencies and non-compliance of other Dublin states.

1.3 CJEU Interpretation of Article 3(2) – A Safety Valve

In the 2010 Joined Cases C-411/10 and C-493/10 M.E,[10] the UK Court of Appeal and the High Court of Ireland requested preliminary rulings from the CJEU concerning the interpretation of Article 3(2). The Court confirmed that a Member State is obliged to examine an asylum application if the transfer to the otherwise responsible Member State would expose the applicant to a serious risk of a violation of fundamental rights. Where the facts raise these concerns, the Dublin III Regulation requires States not to “[rely] automatically in that context on the arrangements made in the Dublin Regulation concerning the attribution of responsibility between European countries for deciding asylum claims.”[11] Article 3(2) determines that the threshold at which the presumption of compliance is rebutted to be where there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State. Therefore, in order to trigger an examination under the sovereignty clause, the wisdom of CJEU precedent requires that systemic deficiencies to be evidenced. However, the ECtHR, in addition to the national courts of some Member States,[12] have disavowed the stringency of the requirement for systematic deficiencies to exist in order to trigger Article 3(2). The Tarakhel judgment confirms the importance attached to the practical realities of the State to which asylum seekers are transferred; the execution of which transfer may infringe fundamental rights even if systematic deficiencies are not evidenced.

1.4 ECtHR evolution in the interpretation of Article 3(2)

In Hassan v Netherlands and Italy,[13] the ECtHR recognised that asylum seekers are an underprivileged and vulnerable population group requiring special protection in the form of basic reception facilities.”[14] In Tarakhel, it is seen that within this particularly underprivileged and vulnerable subset, the need for special protectionwas identified asparticularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability.”[15] Whilst the Dublin III Regulation similarly echoes that particular regard should be had to the welfare of children, inter alia it provides that particular attention be given to the needs of unaccompanied minors and family unity; the ECtHR ruling arguably expounds a more demanding standard. What transpires from Tarakhel is that the States under the Dublin Regulation must additionally evaluate their Article 3(2) obligations with respect to two ECtHR evolutions in understanding: (i) this judgement crystallises that transferring states may have an obligation to invoke Article 3(2) where something less than a systemic deficiency is evidenced, and (ii) that transferring States have a more onerous obligation under Article 3(2) to secure the fundamental rights of asylum seekers with children. From a scholastic perspective, this evolution in the interpretation evidences the cross fertilisation of standards between the ECtHR and EU. The pronouncements in Tarakhel has real impacts on the obligations of states under the Dublin Regulation – whilst not altering the substance of these obligations, ECtHR jurisprudence may serve to raise the floor below which states must not fall in order to be ECHR compliant as well as compliant under the Dublin Regulation.

1.5 Consequences of the ruling: results in increased protection?

The Tarakhel judgment and the preceding seminal judgment in M.S.S v Belgium[16] is said to have eroded the presumption of mutual confidence between states as regards the discharge of their Dublin III Regulation obligations. Rather, it is submitted that this mutual confidence has been nuanced. This does not imply that systematic doubt is cast on the ability of Member States to respect the fundamental rights of asylum seekers.[17] However, states are required to be increasingly vigilant – and consider more cautiously their own compliance with the spirit and not merely the letter of the Dublin Regulation.

It is considered whether an incremental increase in the obligations of transferring states under Article 3(2), i.e. loosening of Article 3(2), serves to enhance the protection of the fundamental rights of asylum seekers under the European asylum system. In this regard, it is submitted the nuancing of mutual confidence under Article 3(2) allows only for the increased protection of fundamental rights haphazardly. Therefore, the nuanced interpretation of Article 3(2) does not improve the fundamental rights of asylum seekers on a system-level.

1.6 Conclusions: Northern Dublin States required to pull their weight

It appears to the author that the botched methods of the Dublin system have led to the identification of subcategories of vulnerables in an attempt to alleviate some of the fundamental rights deficiencies of the system. The Dublin system aspired to establish “a levelled playing field fostering the even distribution of applicants across Member State jurisdictions would be established.”[18] However, in reality, southern Dublin States, such as Italy and Greece, due to their geographical proximity to zones of instability are overburdened with the responsibility to provide adequate care to asylum seekers. In interpreting the Article 3(2) sovereignty clause restrictively, richer northern states obviate their responsibilities through “outsourcing” asylum seekers.[19] Allowing states to transfer asylum seekers despite evidence of deficient practical realities discourages these states to assume liability for the rights of asylum seekers. On the corollary, by continuing to create distinctions between the categories of vulnerables to which transferring states owe increased obligations, uncertainties are created which discourage the more burdened southern states to address the critical roots of the deficiencies in their care of asylum seekers. Therefore, an elastic interpretation of Article 3(2) will not serve to increase the protection of the fundamental rights of asylum seekers within the EU asylum system in the long-term.

In conclusion, progressive structural reforms to the Dublin system should be undertaken to establish the fair attribution of responsibility and resources amongst Dublin states in order to ensure that the protection of fundamental rights is maintained collectively by all Member States for all asylum seekers entering into the EU asylum system.


[1] Tarakhel v Switzerland, Application no. 29217/12, 4th November 2014; available at ‹http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-148070#{“itemid”:[“001-148070”]›

[2] The Dublin system is a term used for a mechanism by which one state responsible for examining of a third country national’s application for asylum is determined within the framework of EU Member States, Norway, Iceland and Switzerland. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast).

[3] Article 3 of the European Convention on Human Rights [hereinafter, ECHR] states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

[4] Article 3(2), Council Regulation (EC) No 604/2013 of 26th August 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national or a stateless person (recast), L 180/31 OJ 29th August 2013.

[5] Joined Cases C-411/10 and C-493/10 N.S v Secretary of State for the Home Department and M.E and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, (GC), Judgment of the Court, 21 December 2011; at para 83.

[6] “Refugees circulating between Member States or within one Member State neither being allowed to stay within its territory, nor being able to leave it.” Joanna Lenart, “Fortress Europe”: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms”, 2012, Utrecht Journal of International and European Law, Volume 28, Issue 75, at pages 4-19.

[7] “Lodging applications in several Member States or choosing the one having the most lenient policy or practice in this respect.” Klaudia Jadqwiga Mierswa, “Is the cornerstone of the Common European Asylum System crumbling?: A study on the compliance of the Dublin II Regulation with human and fundamental rights provisions”, 2013, University of Twente Student Theses.

[8] Evelien Brouwer, “Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof”, 2013, Utrecht Law Review, Volume 9, Issue I, available at ‹http://www.utrechtlawreview.org/index.php/ulr/article/view/218›

[9] European Commission, MEMO/11/942, “Statement by Cecilia Malmstrom, EU Commissioner for Home Affairs, following the preliminary ruling of the European Court of Justice on the transfer of asylum seekers under the EU Dublin Regulation”, 21st December 2011; available at ‹ http://europa.eu/rapid/press-release_MEMO-11-942_en.htm›

[10] Joined Cases C-411/10 N.S v Secretary of State for the Home Department and C-493/10 M.E and Others v Refugee Applications Commissioner, Minister for Justice Equality and Law Reform CJEU, Press Release No 140/11, “An asylum seeker may not be transferred to a Member State where he risks being subject to inhuman treatment”, 21st December 2011, available at ‹http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110140en.pdf›

[11] Ahmed v Austria, Appl. No. 25964/94, judgement of 17th December 1996, at para. 39-40.

[12] N.S v Secretary of State, n.13, 15.

[13] Application No. 40524/10, 27th August 2013, at para 179.

[14] Ibid.

[15] Tarakhel v Switzerland, n.1, at paras 97, 118, 119.

[17] European Commission, MEMO/11/942, n.10.

[18] Violeta Moreno-Lax, “Dismantling the Dublin System: M.S.S v Belgium and Greece”, European Journal of Migration and Law, Volume 14, Issue 1, pages 1 – 31.

[19] Laurens Lavrysen, “M.S.S v Belgium and Greece (2): The impact on EU Asylum Law”, 24th February 2011, available at ‹ http://strasbourgobservers.com/2011/02/24/m-s-s-v-belgium-and-greece-2-the-impact-on-eu-asylum-law/›