Asylum seekers in Europe: M.S.S. v Belgium and Greece

Human Rights Law Review

Volumn 11, Issue 4, 2011, Pages 758-773

  Clayton, Gina ^a  

^a MIDDLESEX UNIVERSITY   (United Kingdom)

Author keywords

Article 3 European convention on human rights; Asylum seekers; Common European asylum system; EU council regulation EC 343 2003; M.S.S. v Belgium and Greece; Refugees

Indexed keywords

EID: 82955173659     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngr037     Document Type: Article

References (38)

1. Application No 30696/09, Merits, 21 January 2011
2. Council Regulation 343/2003, 18 February 2003, [2003] OJ L 50
3. In particular the Procedures and Reception Directives referred to below
4. Commission Regulation 1560/2003, 2 September 2003, [2003] OJ L 222/3
5. According to FRONTEX data, 90% of overland asylum seekers enter the EU through Greece (press release from the Greek Ministry of Citizen Protection, 15 March 2011)
6. Council Directive 2003/9/EC, 27 January 2003, [2003] OJ L 31/18, laying down minimum standards for the reception of asylum seekers ('the Reception Directive')
7. Council Directive 2005/85/EC, 1 December 2005, [2005] OJ L 326/13, on minimum standards on procedures in Member States for granting and withdrawing refugee status ('the Procedures Directive')
8. Council Directive 2004/83/EC, 29 April 2004, [2004] OJ L 304/12, 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 protection granted ('the Qualification Directive')
9. M.S.S. v Belgium and Greece was chosen by the Court as the lead case.
10. Application No 32733/08, Admissibility, 2 December 2008
11. C-72/06, Commission v Greece [2007] ECR I-57
12. 2000-III
13. See Soering v United Kingdom A161 (1989);11 EHRR 439
14. C-411/10, N.S. v Secretary of State for Home Department [2010] OJ C 274/21; and C-493/10, M.E. v Refugee Applications Commissioner [2011] OJ C 13/18.
15. A.A. v Greece Application No 12186/08, Merits, 22 July 2010.
16. S.D. v Greece Application No 53541/07, Merits, 11 June 2009.
17. While the defects in the Greek procedure may be more gross and obvious, the impenetrable nature of the process and the double binds it presents will sound a familiar note for asylum seekers elsewhere. For instance, destitute refused asylum seekers in the UK are normally required to report regularly to UK Border Authority. This entails providing an address. To provide a false address is regarded as a breach of temporary admission, rendering the asylum seeker subject to arrest. However, by definition the asylum seeker has no entitlement to work or claim benefits or be housed and thus is unlikely to have a regular address.
18. For instance, the failings of the UK decision-making process have been documented in upwards of 20 reports since the publication of Asylum Aid, No Reason at All: Home Office Decisions on Asylum Claims (1995), available at: http://repository.forcedmigration.org/show_-metadata.jsp?pid=fmo:3261 [last accessed 3 October 2011].
19. 2000-X; 33 EHRR 42
20. The application of the guarantee of the right to property (guaranteed byArticle 1 of Protocol No 1) to entitlements to social security benefits is established in the ECtHR's case law, though the extent of the ECtHR's engagement with domestic systems of entitlements is controversial
21. See, for example, Bossuyt, 'Should the Strasbourg Court Exercise More Self-restraint? On the Extension of the Jurisdiction of the European Court of Human Rights to Social Security Regulations' (2007) 28 Human Rights Law Journal 321
22. The question in cases like M.S.S. is not the operation of the system of entitlements but the complete exclusion from that system. In this situation, the question is not the conditions of entitlement but the impact of the deprivation. To be accepted as a violation of the ECHR it must be established that the lack of the socio-economic good either threatens psychological integrity, protected by the right to respect for private life under Article 8 (Botta v Italy 1998-I; 26 EHRR 241) or amounts to inhuman or degrading treatment under Article 3 (as in D v United Kingdom 1997-III; 24 EHRR 423).
23. Even where the right protected under the ECHR has an explicit socio-economic element, its scope is fiercely contested
24. See on the right to respect for a home (Article 8): Nield, 'Article 8 Again - The Continuing Dialogue!' (2010) 6 Conveyancing and Property Lawyer 498
25. On social security rights, Kenny, 'European Convention on Human Rights and Social Welfare' [2010] 5 European Human Rights Law Review 495
26. This is all the more so when there is a claim under Article 3: see Bettinson and Jones, 'The Integration or Exclusion of Welfare Rights in the European Convention on Human Rights: The Removal of Foreign Nationals with HIV After N v UK' (Application no. 26565/05; decision of the Grand Chamber of the European Court of Human Rights, 27 May 2008)' (2009) 31 Journal of Social Welfare and Family Law 83.
27. Mantouvalou, 'N v UK: No Duty to Rescue the Nearby Needy?' (2009) 72 Modern Law Review 815
28. A 32 (1979); 2 EHRR 22 at para 26
29. Application No 45603/05, Admissibility, 18 June 2009
30. See Lavrysen, 'M.S.S. v Belgium and Greece (2): The Impact on EU Asylum Law', 24 February 2011, available at: http://strasbourgobservers.com/2011/02/24/m-s-s-v-belgium-and-greece [last accessed 30 September 2011].
31. 47 EHRR 49
32. Battjes, 'In Search of a Fair Balance: the Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed' (2009) 22 Leiden Journal of International Law 583
33. Clayton, 'Article 3 Jurisprudence - N v UK: Not a Truly Exceptional Case?' (2008) 14 Immigration Law Digest 6
34. R.S. (Zimbabwe) v Secretary of State for Home Department [2008] EWCA Civ 839, seemed set to examine this question-whether politically motivated deprivation of basic resources would be treated differently from N type cases-but on remittal the tribunal found as fact that Zanu-PF would not obstruct the appellant's access to medical care, so the point was not decided.
35. Previous case law on vulnerable groups concerns, for example, gypsies or Roma: see Chapman v United Kingdom 2001-I; 33 EHRR 18 at para 96; and Oršuš v Croatia Application No 15766/ 03, Merits, 16 March 2010, at para 148, in which the Court held that 'the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyles'
36. For example, in Davydov and others v Ukraine Application Nos 17674/02 and 39081/02, Merits, 1 July 2010
37. Before the decision in M.S.S., on 25 August 2010 Greece sent its National Action Plan for Migration Management to the European Commission.
38. After completion of this article, Advocate General Trstenjak (AG) gave her opinion in N.S. on 22 September 2011. In brief, the AG argues that a decision under the Dublin Regulation is an EU law decision, and as such, subject to the EU Charter of Fundamental Rights. Member States are obliged to exercise their right under the Article 3(2) of the Dublin Regulation to examine an asylum application where transfer to the responsible state would expose the asylum seeker to a serious risk of violation of fundamental rights. A breach of the EU asylum directives which does not amount to a breach of fundamental rights does not trigger the same obligation. There is an obligation on Member States to operate the Dublin Regulation in a manner consistent with fundamental rights under EU law (as to which the case law of the ECtHR is a very significant, though not conclusive, guide). It follows that Member States may not operate a conclusive presumption that a transfer to another Member State will not entail a breach of fundamental rights. States, the AG proposes, may operate a rebuttable presumption to this effect, but in order to ensure that rights are effective, there must be a meaningful channel through which an asylum seeker can adduce evidence and arguments that there is a serious risk to them in the proposed destination state. The AG rejects the argument that the UK and Poland, by the limiting provision of Protocol 30, have achieved an opt-out from all Charter rights. The Protocol prevents the Charter from creating new social rights in the domestic law of the UK and Poland, but the Charter issues in this case do not refer to such rights. The AG's view that a conclusive presumption that a transfer to another Member State will not entail a breach of fundamental rights is impermissible would, if adopted by the Court, undermine the UK's statutory list of safe countries in the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.