Effective Remedies under EU Law & ECtHR EDAL Conference 2014 - PowerPoint PPT Presentation

Effective Remedies under EU Law & ECtHR EDAL Conference 2014 Dublin, 17 th , 18 th January 2014 cathryn.costello@law.ox.ac.uk

Two Supranational Courts

Sources: • C Costello ‘The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles’ in Baldaccini, Guild, Toner (eds) Whose Freedom, Security and Justice? EU immigration and asylum law after 1999 (Hart publishing, 2007), pp. 151-193. • Available as UNHCR New Issues in Refugee Research Working Paper No 134, November 2006, at <www.unhcr.org/research/RESEARCH/4552f1cc2.pdf >

Sources: • C Costello, 'Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored ' (2012) Human Rights Law Review 287 • C Costello, 'The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?' (2012) Asiel- en Migrantenrecht 83

Sources: • FRA / ECtHR Handbook on European Law relating to asylum, borders and immigration (2013), Chapter 4 http://www.echr.coe.int/Documents/Handb ook_asylum_ENG.pdf

Key Distinctions CJEU ECHR • General principles – • Article 6 inapplicable general scope • Article 3 + 13 – • Strong right to effective normal source of judicial protection effective remedy • National procedural autonomy subject to • Fact-sensitive equivalence & determinations effectiveness • Harmonisation? EU PD, Recast PD

ACCESS TO PROTECTION

Access to Protection Luxembourg Strasbourg • EU – jurisdiction without • Hirsi and Others v. Italy, territory? Application no. 27765/09 • Case C-411/10 NS C- (access - jurisdiction) 493/10 ME 21 December • M.S.S. v. Belgium and 2011 Greece, June 2010, • Case C-648/11 MA & Application no. 30696/09 Others v UK ‘best (access – Dublin) interests’ (2013) Mirrors Strasbourg BUT • ‘Systemic Breach’

Key question • Has Luxembourg undermined the Strasbourg caselaw? • CC: ‘ The CJEU test seems more difficult to meet that the ECtHR, if we read ‘ systemic deficiencies ’ as an additional requirement to be met. However, I urge that such a reading be rejected. Luxembourg has no mandate to interpret Article 4 EUCFR in a manner that undermines Strasbourg ’ s interpretation of Article 3 ECHR. Moreover, the CJEU itself in NS/ME was emphatic that it was faithful to MSS. Accordingly, we should adopt an interpretation of the Luxembourg test which does not treat ‘ systemic deficiency ’ as an additional hurdle for applicants, but rather an element of the risk assessment. ’

UK Supreme Court (pending) Appeal from Court of Appeal ruling in EM (Eritrea) v SSHD [2012] EWCA Civ 1336

Hussein v Netherlands & Italy • Application 27725/10, Mohammed Hussein et al. v NL + ITA (2 April 2013) • Transfer to Italy – Rule 39 granted • Inadmissible • MSS threshold not met • See Para 78

Daytbegova v Austria (2013) • Application 6198/12 Daytbegova v Austria, 4 June 2013 • Rule 39 granted to stay return to Italy • Para 66 – Italian authorities aware of vulnerability and could assist

Halimi v Austria & Italy (2013) • Application No 53852/11 Halimi v Austria & Italy 18 June 2013 • Similar reasoning

Abubeker v Austria (2013) • Application no. 73874/11 Abubeker v Austria , 18 June 2013

Mohammed v Austria (2013) • Application 2283/12 Mohammed v Austria , 6 June 2013 • Transfer to Hungary • MSS threshold not met

Pending Grand Chamber Case Application No 29217/12 Tarakhel v Switzerland Rule 39 granted Grand Chamber Hearing: 12 February 2014 General situation in Italy + specific ‘vulnerabilities’ – Afghan couple + 5 children

C-394/12 Abdullahi • Opinion of AG CRUZ VILLALÓN • 11 July 2013

1. Article 19(2) - no individual right to have their applications examined by a particular Member State responsible in accordance with the Regulation. The scope of the appeals - Charter rights 2. Effects of first entry into the territory of the Union persist for three months 3. Member State with systemic deficiencies - exempted from the responsibility under the DR

CJEU: 11 December 2013 • Article 10(1) Member State of the first entry is responsible - only way in which the applicant for asylum can call into question that criterion is by pleading systemic deficiencies = substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 EUCFR.

• Critique, Maria Hennessy: • http://www.asylumlawdatabase.eu/en/jou rnal/dublin-system-and-right-effective- remedy%E2%80%93-case-c-39412- abdullahi

ASYLUM PROCEDURES

Asylum Procedures Strasbourg Luxembourg • Articles 3 + 13 • Case C-69/10 Diouf , 5 February 2010 Application No. 9152/09 IM • Case C-277/11 MM v v France Ireland, 22 November 2 February 2012 2012 • Case C-175/11 HID, BA v Application No 33210/11 Ireland Singh and Others v Belgium 2 October 2012