By Dr Ermioni Xanthopoulou, Senior Lecturer in Law, Brunel University London, author of ‘Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice: A Role for Proportionality?’
Transfers of asylum seekers based on the Dublin III Regulation have early and often been criticised as not being respectful of fundamental rights. This is associated with an imbalance between migration control interests, on the one hand, and fundamental rights, on the other. With the purpose of achieving an efficient system of cooperation, mutual trust among Member States was demanded by the Court of Justice rather than properly constructed or earned. Mutual trust in the Area of Freedom, Security and Justice (AFSJ) was originally seen as blind before it was qualified by the Court’s interpretation (e.g. in N.S. and M.E. and recently in Jawo and Aranyosi as regards the respective operation of the principle in the Framework Decision on the European Arrest Warrant which is another case study often compared to the Dublin III Regulation).
Mutual Trust, Rights Violations and a Role for Proportionality
A function of proportionality discussed is to shield fundamental rights from excessive restrictions. Given the observed imbalance in the AFSJ, the debate on whether and how we should qualify mutual trust, and the evolving discussion on the role of constitutional principles, the exploration of proportionality’s potential formed an attractive hypothesis. The book submits an account of proportionality, informed by theory, proportionality’s development in EU law, and the jurisprudential development of specific areas of mutual trust (i.e. the Dublin III Regulation and the Framework Decision on the European Arrest Warrant).
A proportionality-based analysis, based on Article 52(1) of the Charter, could be embedded in the assessment of an applicant’s claim challenging the legality of their transfer under the Dublin III Regulation to the Member State responsible for examining their asylum application. This would determine whether an interference with a right is disproportionate. If it is found to be disproportionate, the transfer should be prohibited.
Relying on theories of rights, absolute rights, such as the right to freedom from torture or inhuman or degrading treatment, constitute trumps that should override any other competing public interest. Their protection is absolute and no balancing should be conducted when assessing their violation. On the other hand, relative rights, such as due process rights, hold a priority status over competing considerations and should only be subject to proportionate interference. In this respect, proportionality offers a shield for relative rights to be protected from disproportionate restrictions in the name of public interests.
Hence, authorities must not apply a proportionality-based analysis to an interference with the absolute right enshrined in Article 3 of the ECHR or Article 4 of the EU Charter on Fundamental Rights. When there are substantial grounds to believe that there are ‘systemic flaws in the asylum procedure and in the reception conditions for asylum applicants in the Member State responsible’ (N.S. and M.E. para. 86), Member States must never transfer an asylum seeker. Indeed, the Court held in N.S. and M.E. that a transfer of an asylum seeker to the responsible Member State must be prohibited where systemic violations of rights present a well-founded danger of exposing the applicant to conditions where their right under Article 4 of the Charter could be breached. Furthermore, in C.K. and Others, the Court held that despite the lack of systemic failures in the asylum procedure and the reception conditions of the responsible Member State, the transfer in itself could still entail a risk of inhuman or degrading treatment, where the applicant is seriously ill. Recently, in Jawo, the CJEU further conceded that not only systemic but also deficiencies of a general nature may make a Dublin transfer incompatible with Article 4 of the Charter. The Court’s assessment was correct in not employing any balancing with reference to this absolute right.
Beyond the realm of breaches of the right enshrined in Article 4 of the Charter, where balancing cannot be conducted as the right is absolute, prohibiting a transfer should also be examined in light of interferences with fundamental rights other than Article 4 of the Charter, if the transfer disproportionately interferes with these rights. The existence in twenty-first-century Europe of extreme cases of systemic deficiencies in asylum procedures and reception conditions that entail breaches of Article 4 of the Charter must not overshadow and consequently allow disproportionate interference with other rights. Proportionality could be useful in this context where relative rights are at issue, such as the right to effective remedy. It is also worth noting that the limits of mutual trust in this respect were also reviewed by the Court, in LM, in the context of the Framework Decision on the European Arrest Warrant that also relies on the principle of mutual trust, by contending that surrenders (note that the language and purposes of criminal justice are different) may not take place where the essence of the right to a fair trial is threatened by a lack of judicial independence.
Where proportionality is useful, in cases where relative rights are at issue, national authorities would determine whether a transfer would lead to a disproportionate interference with these rights. Such an analysis should consider certain criteria. The first proposed criterion of balancing regards the seriousness of the interference with the relative right in question. The violation at issue must be so detrimental that the core of the right at issue, e.g. the right to effective remedy, is absolutely impaired. Furthermore, another factor is the remediability of the past breach. When a breach could be or has been remedied by the responsible state, this could be an indication that the transfer is not disproportionate. In this respect, asylum seekers should have an effective procedural opportunity. For example, the failure of providing timely translation services could, in principle, be a remediable breach. However, if as a result of this failure, the transfer of an asylum seeker is significantly delayed which, in turn, causes the deterioration of his health condition, it could be argued that, here, the breach of his right to translation services is non remediable.
Another factor that could be considered at the balancing stage is the overall duration of the transfer. The authorities must ensure that the process does not take an unreasonable length of time, considering the time the asylum seeker had already waited; their state of health; and their state of well-being in general. Most significantly, the vulnerability of the applicant’s situation must be taken seriously into account. Recently, the Court held in Shiri that an applicant can challenge a Dublin transfer before a national court by invoking the expiry of the prescribed six-month time limit. The latter development is welcome as the case refers to the right to an effective remedy expanding this way the scope for challenging a transfer. Although proportionality did not play a role in Shiri, assessing the effect of a delay on the right to effective remedy relies on a reasoning of balancing that is embedded within the law. The ruling also specifies that ‘the effective remedy in respect of transfer decisions must cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred’ (at 37) encouraging national courts to engage in an individual assessment that may balance the above considerations.
The Impact of Proportionality
The impact of proportionality regarding the protection of fundamental rights in Dublin III Regulation is currently limited, but proportionality has still a potential for a meaningful impact. This potential becomes greater as mutual trust matures and the CEAS evolves.
Currently, there are many reasons to indicate a limited impact. As discussed above, a proportionality-based analysis should not apply to cases where absolute rights are at issue. Having said that, proportionality could be beneficial when relative rights are infringed. However, the use of a proportionality-based analysis could be dangerous because of the broader deep-rooted flaws of the Dublin III Regulation that affect individualised rights protection. The principle of proportionality has a neutral structure which is open to various theories of rights, according to the theorisation of proportionality. This is not a problem as such, but if the theory of rights used does not recognise rights’ special force as trumps vis-a-vis competing considerations and sees rights as any other public interests, proportionality is reduced from a guardian of rights to a checklist. For example, if the law in question is based on a certain prioritisation of values such as that the public interest of effective cooperation is more significant than protecting fundamental rights, then the exercise of proportionality will follow up on this premise. In particular, although respect for fundamental rights is a core principle of EU law, its priority in relation to other competing considerations, such as effectiveness, security or migration control, is not always ensured. For proportionality to have an impact on protecting fundamental rights and to realise its role as the shield of rights, we first need to agree on rights’ importance vis-a-vis competing values.
Therefore, it is not the value of proportionality that should be questioned but the theory and understanding of rights that accompanies it. Proportionality, even when seen through a critical lens, can fulfil its role as a guardian of fundamental rights and can have a meaningful impact as long as the rights of affected individuals, such as asylum seekers, are taken seriously. Proportionality could therefore be a useful argument in those cases where asylum seekers challenge their transfer in light of breaches of relative rights and as long as it is agreed that rights’ priority status deserves to be defended. It could be also useful in other contexts of analysis of EU asylum law. Recent case law supports this as a filter of proportionality should be used to assess the legality of detention in transit zones.
Dublin shortcomings need to be considered beyond the level of individualised decision-making. Individualised reviews of asylum applications and challenges of transfer decisions, including legal mechanisms employed to ensure rights protection such as proportionality, are doomed to have a limited impact if rights are not taken seriously. The progress for mutual trust achieved in terms of legislative harmonisation and advanced administrative cooperation should be commended. Still, strengthening fundamental rights protection is vital for constructing real mutual trust. There is a need to recognise that rights have priority over other considerations. Fundamental rights cannot be dispensed with whenever they are not useful. This could perhaps be one starting point for discussions on EU asylum and constitutional law.