After Entry: Criminalisation as Risk Management, Detention and Removal

© The Author(s) 2015
Valsamis MitsilegasThe Criminalisation of Migration in EuropeSpringerBriefs in Law10.1007/978-3-319-12658-6_4

4. After Entry: Criminalisation as Risk Management, Detention and Removal

Valsamis Mitsilegas 

Department of Law, Queen Mary University of London, London, UK



Valsamis Mitsilegas

4.1 Introduction

In addition to the use of substantive criminal law to enable the prosecution of immigration-related offences, a key strand of the criminalisation of migration is the emphasis on the exclusion of migrants from the legal safeguards applicable in the jurisdiction once they have entered the territory and the strong priority for the EU and its Member States of the removal of irregular migrants from their territory. Exclusion and removal have far-reaching negative human rights and rule of law implications for migrants, especially in cases where the latter are considered to be high-risk. This chapter will analyse the implications of the criminalisation of migration in the context of exclusion and deportation by focusing on two main aspects of criminalisation. The first part will focus specifically on the exclusion and removal of asylum-seekers, either via their exclusion from refugee status or via mechanisms whereby EU Member States have attempted to shield their jurisdiction from the responsibility of examining asylum applications via the transfer of asylum seekers either to other European Union Member States (under the system established by the Dublin Regulation) or, in accordance with the provisions of the asylum procedures Directive, to countries outside the European Union considered to be ‘safe’. Attempts by the European Union and Member States to prevent asylum seekers from reaching the EU external border analysed in Chap. 2 are here thus coupled with attempts to evade legal responsibilities with regard to the examination of asylum claims in cases where asylum seekers have made it into the European Union. The second part will examine criminalisation in the context of removal, by focusing in particular on the evolution and provisions of the EU Returns Directive. Following the analysis of the impact of the Court’s case-law on using the Returns Directive to limit national criminalisation powers in Chap. 3, this chapter will focus on the impact of the case-law of the Court of Justice in interpreting and shaping the provisions of the Directive in the light of human rights law. The chapter will focus in particular on the interpretation by the Court of Justice of the provisions of the Returns Directive on the detention of migrants and examine the extent to which the Court has placed limits to the criminalisation of migration such detention powers entail.

4.2 The Exclusion of Asylum-Seekers

The development of the Common European Asylum System has been marked by efforts to disassociate the legal systems of EU Member States from obligations to examine in detail asylum claims in instances where such claims are deemed to be undeserving. There are three main examples of this trend: the inclusion in European asylum law of provisions allowing for exclusion from refugee status of individuals deemed as posing a security risk to EU Member States under the refugee qualification Directive; the refusal to examine an asylum application combined with the automatic transfer of an asylum seeker to another EU Member State under the system established by the Dublin Regulation; and the treatment of asylum applications in an accelerated procedure in cases involving inter alia asylum seekers who are deemed to be high risk or uncooperative and the non-examination of asylum applications if applicants can be transferred to third countries outside the European Union which are considered to be safe under the system put forward by the asylum procedures Directive. These elements of European asylum law have survived the move from the post-Amsterdam minimum standards in asylum law to the post-Lisbon measures entailing a higher level of harmonisation and leading to a Common European Asylum System. What all these instances have in common is the criminalisation of the asylum seeker on the basis of the perception of the latter and the asylum claims submitted as a security risk, abusive, or posing an unreasonable burden to the asylum system of EU Member States. What all these three instances have in common is the exclusion of the asylum seeker from the asylum determination system of EU Member States, with the Dublin Regulation and the safe third country provisions of the asylum procedures Directive ultimately aiming to remove asylum seekers and their claims to the responsibility of other countries, inside or outside the European Union. While preventive immigration control as analysed in Chap. 2 aims at shielding the territory and jurisdiction of Member States from the very arrival of asylum seekers before entry, the measures analysed in this chapter complete this picture of deflection by aiming to exclude asylum seekers from the jurisdiction of Member States and expel them from their territory after these asylum seekers have managed to gain entry into the European Union.

4.2.1 Exclusion from Refugee Status

Like the minimum standards Directive it has replaced,1 the post-Lisbon refugee qualification Directive has maintained the possibility for Member States to exclude third-country nationals from refugee status.2 Exclusion is linked primarily with the perception of the asylum seeker as a risk to society and to the political system of Member States. While provisions on exclusion from refugee status do exist in international refugee law,3 efforts to exclude third country nationals from being refugees have intensified post-9/11, within the emergence of a general climate of securitisation of migration and stigmatisation of foreigners.4 This securitisation of asylum seekers has also been reflected in the adoption of counter-terrorism Resolutions by the United Nations Security Council.5 According to the refugee qualification Directive, a third-country national is excluded from being a refugee inter alia where there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee6 and if he or she has been guilty of acts contrary to the purposes and principles of the United Nations.7 The Directive further provides for the exclusion of third-country nationals from subsidiary protection, adding that exclusion can happen if the third country national constitutes a danger to the community or to the security of the Member State in which he or she is present8 or if, without further specification in the text, he or she has committed a serious crime.9 The consideration of third country nationals as a security risk may also lead to the revocation of refugee status. Member States may inter alia revoke, end or refuse to renew refugee status when here are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present10 and when the third country national having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.11 As Guild and Garlick have noted, exclusion and revocation on grounds of the third country national constituting a security threat relate not to the past acts of an asylum seeker, but to prospective and hypothetical future acts.12 The text of the Directive appears to leave open the exclusion of asylum seekers from refugee status on the basis of subjective assessments by the State of them constituting a security risk. This subjectivity and potential exclusion on the basis of labelling third-country nationals as security risks poses significant challenges to human rights and the rule of law, in particular when such assessments are made in a blanket and automatic way without being based on concrete evidence or on the assessment of individual cases.

The rule of law challenges arising from the provisions on exclusion from refugee status have been addressed by the Court of Justice in its ruling in B and D. 13 The Court was asked to interpret the exclusion criteria set out in the first refugee qualification Directive in cases where third country nationals were considered to fall under the exclusion grounds falling currently under Article 12(2)(c) of the new refugee qualification Directive on the basis of their membership of an organisation which has been prescribed as a terrorist group under a separate listing EU Common Position. The Court found that the fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is on the list forming the Annex to Common Position 2001/931 which implemented Security Council Resolution 1373 (2001), and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that person has committed a serious non-political crime or acts contrary to the purposes or principles of the United Nations. It added that the finding in such a context that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive.14 The Court’s ruling thus introduces important rule of law safeguards. While the Court has accepted that the competent authorities of the Member States can also apply Article 12(2)(c) of Directive 2004/83 to a person who, in the course of his membership of an organisation which is on the list forming the Annex to Common Position 2001/931, has been involved in terrorist acts with an international dimension15 it went on to stress that the mere fact that the person concerned was a member of such an organisation cannot automatically mean that person must be excluded from refugee status.16 Participation in the activities of a terrorist group cannot come necessarily and automatically within the grounds of exclusion laid down in 12(2)(b) and (c) of the Directive.17 These provisions presuppose a full investigation into all the circumstances of each individual case.18 Exclusion from (and revocation of) refugee status must thus be based on a full investigation and an assessment on a case-by-case basis of the specific facts which will lead to the attribution of individual responsibility for specific acts to the third country nationals involved. Member States are thus not allowed to exclude third country nationals from refugee status merely by labelling them as ‘terrorists.’ The EU legislator has attempted to reintroduce this element of subjectivity in the Preamble to the new refugee qualification Directive, which states that the notion of national security and public order also covers cases in which a third-country national belongs to an association which supports international terrorism or supports such an association.19 However, this provision must be applied in compliance with the Court’s ruling in B and D which requires an individual assessment on a case-by-case basis based on specific facts and an individual attribution of responsibility for specific acts.

4.2.2 Intra-EU Transfers of Asylum-Seekers: The Dublin Regulation

EU harmonisation measures on asylum have been accompanied by a cooperative system of intra-EU allocation of responsibility for the examination of asylum claims. Such a system had already been established in public international law shortly after the fall of the Berlin Wall by the 1990 Dublin Convention,20 which was replaced post-Amsterdam by the Dublin Regulation.21 Placed in the broader context of the construction of an Area of Freedom, Security and Justice, the Dublin Regulation has been designed to serve not only asylum policy, but also broader border and immigration control objectives. According to the Preamble to the Regulation, ‘the progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the [then] Treaty establishing the European Community and the establishment of [the then] Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity’.22

The significance of border control considerations is evident in the formulation of the criteria established by the Regulation to allocate responsibility for the examination of asylum applications by Member States. The Regulation puts forward a hierarchy of criteria to determine responsibility.23 While on top of this hierarchical list one finds criteria such as the applicant being an unaccompanied minor,24 family reunification considerations25 or a legal relationship with an EU Member State (such as the possession of a valid residence document or a visa),26 following these criteria one finds the criterion of irregular entry into the Union: if it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, this Member State will be responsible for examining the application for asylum.27 Irregular entry thus triggers state responsibility to examine an asylum claim. The very occurrence of the criteria set out in the Dublin Regulation sets out a system of automatic inter-state cooperation which has been characterised as a system of negative mutual recognition.28 Recognition can be viewed as negative here in that the occurrence of one of the Dublin criteria creates a duty for one Member State to take charge of an asylum seeker and thus recognise the refusal of another Member State (which transfers the asylum seeker in question) to examine the asylum claim. The Dublin Regulation thus introduces a high degree of automaticity in inter-state cooperation. Member States are obliged to take charge of asylum seekers if the Dublin criteria are established to apply, with the only exceptions to this rule (on the basis of the so-called sovereignty clause in Article 3(2) and the humanitarian clause in Article 15 of the Regulation) being dependent on the action of the Member State which has requested the transfer. As in the case of the application of the principle of mutual recognition in criminal matters,29 automaticity in interstate cooperation is accompanied with the requirement of speed, which is in this case justified on the need to guarantee effective access to the asylum procedure and the rapid processing of asylum applications.30

Notwithstanding the claim of the Dublin Regulation that one of its objectives is to facilitate the processing of asylum applications, it is clear that the Regulation has been drafted primarily with the interests of the state, and not of the asylum seeker, in mind. The Regulation establishes a mechanism of automatic interstate cooperation aiming to link allocation of responsibility for asylum applications with border controls and in reality to shift responsibility for the examination of asylum claims to Member States situated at the EU external border. The specificity of the position of individual affected asylum seekers is addressed by the Regulation only marginally, with the Regulation containing limited provisions on remedies: a non-suspensive remedy to the asylum seeker with regard to the decision not to examine his or her application31 and the decision concerning his or her taking back by the Member State responsible to examine the application.32 The asylum determination system envisaged by the Dublin Regulation has been a system aiming at speed. This objective has recently been confirmed by the Court of Justice which in the case of Abdullahi 33 stated that one of the principal objectives of the Dublin Regulation is the establishment of a clear and workable method for determining rapidly the Member State responsible for the processing of an asylum application so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum claims.34 Privileging the interests of the state in relation to the position of the asylum seeker is linked to the perception that the abolition of internal borders in the Area of Freedom, Security and Justice will lead to the abuse of domestic systems by third-country nationals. The terminology of abuse can be found in cases before the Court of Justice of the European Union, with Advocate General Trstenjak recently stating that the purpose of the hierarchy of criteria in the Dublin Regulation is first to determine responsibility on the basis of objective criteria and to take into account of the objective of preserving the family and secondly to prevent abuse in the form of multiple simultaneous or consecutive applications for asylum.35 In the political discourse, this logic of abuse has been encapsulated in the terminology of ‘asylum shopping’. Giving evidence before the House of Lords European Union Committee on the draft Dublin Regulation, the then Home Office Minister Angela Eagle stated that the underlying objectives of the Regulation were ‘to avoid asylum shopping by individuals making multiple claims in different Member States and to address the problem known as ‘refugees in orbit’…it is in everybody’s interests to work together to deal with some of the issues of illegal migration and to get some coherence into the asylum seeking issue across the European Union’.36 Under this logic of abuse, the Regulation aims largely to automatically remove the unwanted, third-country nationals who are perceived as threats to the societies of the host Member States. The legitimate objective of applying for asylum is thus securitised in the law of the European Union.

As mentioned above, the system of interstate cooperation established by the Dublin Regulation is based on a system of negative mutual recognition. Mutual recognition creates extraterritoriality37 and presupposes mutual trust38: in a borderless Area of Freedom, Security and Justice, mutual recognition is designed so that the decision of an authority in one Member State can be enforced beyond its territorial legal borders and across this area speedily and with a minimum of formality. As in EU criminal law, in the field of EU asylum law automaticity in the transfer of asylum seekers from one Member State to another is thus justified on the basis of a high level of mutual trust. This high level of mutual trust between the authorities which take part in the system is premised upon the presumption that fundamental rights are respected fully by all EU Member States across the European Union. In asylum law, as evidenced in the Preamble of the Dublin Regulation, such mutual trust is based additionally upon the presumption that all EU Member States respect the principle of non-refoulement and can thus be considered as safe countries for third-country nationals.39 In its extreme, this logic of mutual recognition premised upon mutual trust absolves Member States from the requirement to examine the individual situation of asylum applicants and disregards the fact that fundamental rights and international and European refugee law may not be fully respected at all time in all cases in EU Member States, especially in the light of the increased pressure certain EU Member States are facing because of the emphasis on irregular entry as a criterion for allocating responsibility under the Dublin Regulation. Interstate cooperation resulting to the transfer of asylum seekers from EU Member State to EU Member State thus occurs almost automatically, without many human rights questions being asked by the authorities examining requests for Dublin transfers.

This system of interstate cooperation based on automaticity and trust in the field of European asylum law was challenged in Luxembourg in the joint cases of N.S. and M.E.40 The Court of Justice was asked to rule on two references for preliminary rulings by the English Court of Appeal and the Irish High Court respectively. The referring courts asked for guidance on the extent to which the authority asked to transfer an asylum seeker to another Member State is under a duty to examine the compatibility of such transfer with fundamental rights and, in the affirmative, whether a finding of incompatibility triggers the ‘sovereignty clause’ in Article 3(2) of the Dublin Regulation. In a seminal ruling, the Court found that an application of the Dublin Regulation on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply the Regulation in a manner consistent with fundamental rights.41 Were the Regulation to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States.42 Most importantly, such presumption is rebuttable.43 If it is ascertained that a Dublin transfer will lead to the breach of fundamental rights as set out in the judgment, Member States must continue to apply the criteria of Article 13 of the Dublin Regulation.44 The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in the sovereignty clause set out in Article 3(2) of the Regulation.45 N.S. followed the ruling of the European Court of Human Rights in the case of M.S.S.46 In M.S.S., the Strasbourg Court found Dublin transfers from Belgium to Greece incompatible with the Convention and importantly found both the sending and the receiving states in breach of the Convention in this context.47 M.S.S., which as seen in Chap. 2 has also proven to be influential on subsequent Strasbourg case-law on onward transfers to third countries48 has contributed to the Court of Justice in opposing the automaticity in the operation of the Dublin Regulation by not accepting the non-rebuttable assumption of compatibility of EU Member States action with fundamental rights.

The Court’s rejection of the conclusive presumption that Member States will respect the fundamental rights of asylum seekers has admittedly been accompanied by the establishment by the Court of Justice of a high threshold of incompatibility with fundamental rights: a transfer under the Dublin Regulation would be incompatible with fundamental rights if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter (on the prohibition of torture and inhuman or degrading treatment or punishment), of asylum seekers transferred to the territory of that Member State.49 Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.50 This high threshold is justified on the basis of the assumption that all Member States respect fundamental rights and by the acceptance of the existence, in principle, of mutual trust between Member States in the context of the operation of the Dublin Regulation. According to the Court, it is precisely because of that principle of mutual confidence that the European Union legislature adopted the Dublin Regulation in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States.51 It cannot be concluded that any infringement of a fundamental right will affect compliance with the Dublin Regulation,52 as at issue here is the raison d’etre of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance by other Member States with EU law and in particular fundamental rights.53 The Court found that it would not be compatible with the aims of the Dublin Regulation were the slightest infringement of other measures in the Common European Asylum System to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible under the Dublin Regulation54 and reiterated the objectives of the Dublin Regulation to establish a clear and effective method for dealing with asylum applications by allocating responsibility speedily and based on objective criteria.55

N.S. constitutes a significant constitutional moment in European Union law and introduces a fundamental change in the development of interstate cooperation in European asylum law. The rejection by the Court of the conclusive presumption of fundamental rights compliance by EU Member States signifies the end of automaticity in interstate cooperation. The end of automaticity operates on two levels. Firstly, national authorities (in particular courts) which are asked to execute a request for a transfer under the Dublin Regulation are now under a duty to examine, on a case-by-case basis, the individual circumstances in each case and the human rights implications of a transfer in each particular case. Automatic transfer of individuals is no longer allowed under EU law. Secondly, national authorities are obliged to refuse to execute such requests when the transfer of the affected individuals will result in the breach of their fundamental rights within the terms of N.S. The ruling in N.S. has thus introduced a fundamental rights mandatory ground for refusal to transfer an asylum seeker in the system established by the Dublin Regulation.56 While the Court of Justice in N.S. placed limits to the automaticity in the operation of the Dublin Regulation, it was careful not to condemn the Dublin system as a whole. The requirement for Member States to apply the Regulation in compliance with fundamental rights did not lead to a questioning of the principle behind the system of allocation of responsibility for asylum applications between Member States. There are three main limitations to the Court’s reasoning: Firstly, the Court used the discourse of the presumption of the existence of mutual trust between Member States, although as seen above this discourse has been used thus far primarily in the context of cooperation in criminal matters and not in the field of asylum law, where the Dublin Regulation has co-existed with a number of EU instruments granting rights to asylum seekers.57 Secondly, a careful reading of N.S. also demonstrates a nuanced approach to the sovereignty clause in Article 3(2) of the Regulation: the Court stressed that, prior to Member States assuming responsibility under 3(2), they should examine whether the other hierarchical criteria set out in the Regulation apply. Thirdly, it should be reminded again that the threshold set out by the Court for disapplying the system is high: mere non-implementation of EU asylum law is not sufficient to trigger non-return, systemic deficiencies in the national asylum systems must occur leading to a real risk of breach of fundamental rights.58

In addition to its contribution to questioning automaticity in the Dublin system, the Court’s ruling in N.S. is important in highlighting that the adoption of legislative measures conferring rights to asylum seekers may not be on its own adequate to ensure the effective protection of fundamental rights in the asylum process. N.S. has demonstrated that the existence of EU minimum harmonisation on rights may not prevent systemic deficiencies in the protection of fundamental rights in Member States. Monitoring and extensive evaluation of Member States’ implementation of European asylum law and their compliance with fundamental rights is essential in this context. In addition to the standard constitutional avenues of monitoring compliance with EU law at the disposal of the European Commission as guardian of the treaties, the Lisbon Treaty includes an additional legal basis in Article 70 TFEU for the adoption of measures laying down the arrangements whereby Member States, in collaboration with the European Commission, conduct objective and impartial evaluation of the Union policies in the field of the Area of Freedom, Security and Justice, in particular in order to facilitate full application of the principle of mutual recognition. The Justice and Home Affairs Council has called recently for the establishment of evaluation mechanisms in the field of EU asylum law.59 On the basis of the findings of European courts in M.S.S. and N.S., the work of organisations such as the UNHCR and civil society actors must be central in the processes of monitoring the situation of international protection on the ground in EU Member States. However, the question of the value of the findings of civil society organisations and the UNHCR as evidence before national and European authorities remains open. While both the Luxembourg and the Strasbourg Courts have referred to the work of UNHCR in their rulings, the Court of Justice found in a recent ruling60 that the Member State in which the asylum seeker is present is not obliged, during the process of determining the Member State responsible, to request the UNHCR to present its views where it is apparent from the documents of that Office that the Member State indicated as responsible by the criteria in Chap. III of the Dublin Regulation is in breach of the rules of European Union law on asylum. However, work done by civil society and UNHCR, the transparency their presence creates and the information produced and its use by national and European authorities, including courts, is key in shifting the focus of solidarity towards the asylum seeker and in contributing towards the establishment of evidence-based trust in the Common European Asylum System.

Following the Court’s ruling in N.S., the revision of the Dublin Regulation post-Lisbon has been eagerly awaited. The adoption of the new instrument (the so-called ‘Dublin III’ Regulation)61 may come as a disappointment to those expecting a radical overhaul of the Dublin system. The Regulation maintains intact the system of allocation of responsibility for the examination of asylum applications by EU Member States under the same list of hierarchically enumerated criteria set out in its pre-Lisbon predecessor.62 However, the Dublin III Regulation has introduced an important systemic innovation to take into account the Court’s ruling in N.S.: according to Article 3(2) of the Regulation, second and third indent,

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 the 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 Chap. III in order to establish whether another Member State can be designed 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 Chap. III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

The European legislator has thus attempted to translate the Court’s ruling in N.S. to establish an exception to the Dublin system. The high threshold adopted by the Court in the specific case has been adopted in Dublin III, with the transfer of an asylum applicant being impossible when there are substantial grounds to believe that there are systemic flaws in the asylum system of the receiving Member State which will result in a risk of specifically inhuman and degrading treatment (and not necessarily as regards the risk of the breach of other fundamental rights). Even when such risk has been established, responsibility does not automatically fall with the determining Member State, which only becomes responsible if no other Dublin criterion enabling the transfer of the applicant to another Member State applies. While it could be argued that the new Dublin Regulation could require expressly a higher level of protection of human rights when designing the Dublin system, the legislative recognition of the N.S. principles is important in recognising the end of the automaticity in Dublin transfers and placing national authorities effectively under the obligation to examine the substance of the applicants’ relevant human rights claims prior to authorising a transfer. Article 3(2) places thus an end to the automatic presumption of human rights compliance by EU Member States and reconfigures the relationship of mutual trust between national executives.

A greater emphasis on the rights of the asylum seeker is also evident in other, specific, provisions of the new Regulation. The provisions on remedies have been strengthened, in particular as regards their suspensive effect.63 The rights of minors and family members are highlighted, with the Regulation containing strong provisions on evidence in determining the Dublin criteria64 and in emphasising the possibility of Member States to make use of the discretionary provision which enables them to assume the examination of an asylum claim (the former ‘sovereignty clause in Article 3(2) which has morphed into a ‘discretionary clause’ in Article 17), in particular when this concerns family reunification.65 The emphasis on the protection of the rights of family reunification and of minors has also been evident in the case-law of the Court of Justice in relation to the pre-Lisbon Dublin Regulation. In a case involving unaccompanied minors, the Court has held that since unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than it is strictly necessary the procedure for determining the Member State responsible which means that, as a rule, unaccompanied minors should not be transferred to another Member State.66 The Court has also extended the scope of the Dublin criterion of examination of a family asylum application on humanitarian grounds, giving a broad meaning to the humanitarian provisions of the Regulation.67 The interpretation of humanitarian, human rights and family reunification clauses in an extensively protective manner by the Court signifies another inroad to the automaticity in interstate cooperation which the Dublin system aims to promote and reiterates the required emphasis on the examination of the substance of individual claims.

4.2.3 Removal of Asylum-Seekers Outside the EU: From the Management of Risk to the Safe Third Country Concepts

As seen above, the main aim of the Dublin Regulation is to establish a system which shields the asylum systems of EU Member States from examining asylum applications by a great number of third country nationals by ensuring their transfer to another State within the European Union which will assume responsibility for the examination of asylum applications. In addition to this system of intra-EU transfers of asylum-seekers, European asylum law has established an additional layer of rules aiming to absolve Member States from their responsibilities to examine fully asylum applications either by providing that these applications are dealt with by accelerated procedures or by providing that applications will not be examined at all if applicants can be further transferred to so-called safe third countries. This additional system of negating the responsibility of Member States to examine fully asylum applications was firmly established post-Amsterdam by the Directive on minimum standards on asylum procedures68 and has been maintained in principle—albeit with a number of procedural improvements—post-Lisbon by the new asylum procedures Directive.69 The Directive allows Member States to put forward accelerated examination procedures and/or procedures conducted at the border or in transit zones.70 These procedures apply inter alia when the applicant is from a safe country of origin.71 Moreover, as is the case with the Dublin Regulation, the choice to depart from the ordinary process of examining asylum application here is applicable to a great extent to address applications which are deemed by Member States to be abusive or mala fide. Accelerated or border procedures may thus apply when asylum seeker is deemed to be uncooperative72 or to be acting in bad faith73 or in a misleading manner.74 They may also apply in cases where the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.75 The reference to the applicant being a danger to national security is reminiscent of the grounds for exclusion under the refugee qualifications Directive. The Court’s ruling in B and D, requiring an assessment on a case-by-case, factual basis, is also applicable in the present context. The requirement for an assessment of whether an application for asylum would fall under an accelerated procedure where a safe country of origin is allegedly involved is also confirmed by the Preamble to the Directive, according to which it is important that, where the applicant shows that there are valid reasons to consider the country not to be safe in his or her particular circumstances, the designation of the country as safe can no longer be considered relevant for him or her.76 Ruling on the legality of accelerated procedures established in the 2005 asylum procedures Directive, the Court of Justice emphasised the requirement that the reasons which led a national authority to examine the merits of the application under such a procedure can be subject to judicial review.77

The asylum procedures Directive further provides for cases where Member States are not required to examine asylum applications. This is the case where applications are deemed to be inadmissible,78 including cases where ‘a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38.’79 Moreover, the Directive allows Member States to undertake no, or no full examination of the application for international protection and of the safety of the applicant in his or her particular circumstances shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant is seeking to enter or has entered illegally into its territory from a European safe country.80 The new asylum procedures Directive thus confirms the practice of deflection of asylum seekers from the territory of the European Union via the use of the concept of safe third countries.81

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