Caselaw Update: M.S.S. v Belgium and Greece (February 2011)

The Europstat asylum statistics release coincides with a very significant decision of the European Court of Human Rights of the 21st January 2011 which could now have an embarrassing impact on Ireland, in light of our very low recognition rates for asylum applications. The case, M.S.S. v Belgium and Greece, concerned an Afghan asylum seeker who entered the EU through Greece en route to Belgium where be claimed asylum from persecution in Afghanistan. The Belgium authorities attempted to transfer the Applicant back to Greece to have his asylum case heard there pursuant to the “Dublin 2 Regulations”. However, the judges in the Grand Chamber of the European Court of Human Rights found that the poor living conditions and detention facilities for asylum seekers in Greece amounted to inhumane and degrading treatment, and as such the transfer to Greece would be a beach of the Applicant’s rights under Article 3 of the European Convention of Human Rights. The Court of Human Rights also went further and found that the widespread and well documented deficiencies in the Greek asylum procedure resulted in asylum seekers being denied a fair hearing of their case, which was in breach of Article 13 of the Convention, i.e the right to an “effective remedy”. The Court held that if the Belgium authorities carried out the transfer to Greece, they too would be acting in violation of the applicant’s rights to an effective remedy under Article 13. One of the points canvassed on behalf of the Applicant was that the asylum acceptance rated at first instance in Greece was only 0.1%.
It is hard to believe that the asylum acceptance rate at the Office of the Applications Commissioner in Ireland is now less than Greece, which has now risen to 2.8%. Is it possible that a “Dublin 2” transfer of an asylum seeker from another Member State to Ireland could also be held to be contrary to the Convention on the basis that the low acceptance rates in Ireland? Certainly the fact that our acceptance rates at first instance are lower than Greece’s causes doubts as to whether an asylum seeker would receive a fair hearing in Ireland. Such a finding against Ireland would have been inconceivable until recently, but it may now be a possibility in light of the M.S.S. v Belgium and Greece.  We will watch with great interest as to how matters progress and will keep the updates coming as always.
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