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Press Release: N.S. v Secretary of State for the Home Department (Case C-411/10) and M.E. & Others v ORAC (Case C-493/10)

22 September 2011

Opinion of the Advocate General (Court of Justice of the European Union)

We welcome Advocate General Trstenjak’s opinions, delivered today in N.S. v Secretary of State for the Home Department and M.E. and Others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, and are pleased with the opinion's vindication of the prime importance that must be given to the observance of fundamental human rights.

Advocate General Trstenjak concluded:

 (1)      A decision made by a Member State under Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 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 whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the regulation constitutes a measure implementing European Union law for the purposes of Article 51(1) of the Charter of Fundamental Rights.

(2)      A Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

(3)      The obligation to interpret Regulation No 343/2003 in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under European Union law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application.

(4)      Under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) is no less than the protection granted by the ECHR. Because the extent and scope of the protection granted by the ECHR has been clarified in the case-law of the European Court of Human Rights, particular significance and high importance are to be attached to that case-law in connection with the interpretation of the relevant provisions of the Charter of Fundamental Rights by the Court of Justice.

(5)      A national law under which, in examining whether an asylum seeker may be lawfully transferred to another Member State pursuant to Regulation No 343/2003, the courts must proceed from the conclusive presumption that that Member State is a safe country in which asylum seekers are not exposed to the risk of expulsion to a persecuting State, which is contrary to the Geneva Convention or with the ECHR, is incompatible with Article 47 of the Charter of Fundamental Rights.

(6)      The interpretation of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom has not produced any findings which could call into question the validity for the United Kingdom of the provisions of the Charter of Fundamental Rights which are relevant in the present case.

The AIRE Centre and Amnesty International were third party interveners in this case.

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