The European Court of Justice (ECJ) is expected to deal another blow to the EU’s common asylum system – known as Dublin II – putting more pressure on member states to revise it.
Malta has been calling for a revamp of this system, which puts added burdens on the EU’s peripheral countries, but many member states are still opposing the idea.
According to current rules, asylum applicants who are apprehended illegally in a member state are sent back to the member state where they first entered the EU. This means that, if a Somali who first applied for asylum after arriving illegally in Malta is arrested in Italy, he will be extradited back to Malta to have his application re-processed.
But according to an opinion submitted by the ECJ’s Advocate General – still to be confirmed by the court – this system should not be the automatic option it is today. Member states still need to see whether the member state of entry is in a condition to uphold the rights of the asylum seeker concerned.
This issue was raised at the ECJ by the UK and Ireland who asked the Luxembourg-based court to assess under what circumstances they should have to consider the applications of asylum seekers who enter the EU through another member state.
The case arose after asylum seekers who first arrived in Greece later lodged applications in Britain or Ireland.
The Advocate General’s opinion, which is normally accepted in an eventual court judgment, says that if there is a risk that an asylum seeker’s rights will be violated in the state which is meant to consider the application, then the case must be heard where the asylum seeker is held.
“Given the considerable pressure on the overburdened Greek asylum system, it could not always be guaranteed asylum seekers’ treatment and applications would be handled there in full compliance with EU law,” the Advocate General wrote.
“The transferring member state may proceed on the assumption that those rights will be respected.
“If that assumption is shown to be misplaced, however, that member state is under an obligation to exercise its right to assume responsibility for examining the asylum application itself.”
Although in this particular case the ECJ is dealing with the case of Greece, ECJ sources told The Times that, if this opinion is upheld, it may also have a positive effect on other peripheral member states such as Malta, which can’t be held accountable to deal with hundreds of applications in case of a sudden influx.
The court’s opinion strengthens a proposal made by the Commission two years ago suggesting a suspension of the Dublin II rules in the case of member states facing emergencies.
The proposal has so far been blocked by some member states, including Britain and France.