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Published online by Cambridge University Press: 20 January 2017
The judgment in Bundesrepublik Deutschland v. Kaveh Puid concerns the Common European Asylum System (CEAS) and, in particular, the “Dublin Rules,” the intra-European arrangement that governs which State shall be responsible for determining a claim to asylum. This process began under the 1990 Dublin Convention, which was replaced by European Union (EU) Regulation 343/2003, commonly referred to as “Dublin II” (Dublin Regulation).
* This text was reproduced and reformatted from the text available at the Court of Justice of the European Union website (visited April 17, 2014), http://curia.europa.eu/juris/document/document.jsf?text=&docid=144489&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=789323
1 2003 O.J. L 50/1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF [hereinafter Dublin Regulation]. “Dublin II” has now been replaced by Regulation 604/2013 of the European Parliament and the European Council (26 June 2013), “establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast).” 2013 O.J. L 180/31 [hereinafter Dublin III]. This Regulation came into force on July 19, 2013, and applies to applications lodged on or after January 1, 2014 and to any request to take charge of or take back an “asylum seeker,” irrespective of the date on which application is made. Id. at art. 49.
2 See Case C-4/11, Bundesrepublik Deutschland v. Kaveh Puid (Nov. 14, 2013), ¶¶ 13-23, http://curia.europa.eu/juris/document/document.jsf?text=&docid=144489&pageIndex_0&doclang=EN&mode=req&dir=&occ=first&part=1&cid_=789323 [hereinafter Puid Decision].
3 The phrase “asylum claim” is used here to include claims to recognition as a refugee under the 1951 Convention/1967 Protocol relating to the Status of Refugees and claims for “subsidiary” or complementary protection, in accordance with the EU Qualification Directive.
4 Dublin Regulation, supra note 1, at arts. 5-14, 16-20. References here are to the Dublin II Regulation 343/2003, which will now need to be read in light of Dublin III.
5 See, e.g., id. at art. 15.
6 Id. (emphasis added).
7 See AIDA, Not there yet: An NGO Perspective on Challenges to a Fair and Effective European Asylum System. Annual Report 2012/2013, (2013) ; European Asylum Support Office (EASO), Annual Report on the Situation of Asylum in the EU 2012, (2013); Fundamental Rights Agency, Annual Report 2012, (2013); European Consultation on Refugees and Exiles, Forum Réfugiés-Cosi, Hungarian Helsinki Committee, Lives on Hold: The Dublin II Regulation, (2013), http://www.ecre.org/component/content/article/56-ecre-actions/317-dublin-ii-regulation-liveson-hold.html; JRS Europe, Protection Interrupted: The Dublin Regulation’s Impact on Asylum Seekers’ Protection,( 2013),http://www.jrseurope.org/DIASP%20Publications/Protection%20Interrupted_JRS%20Europe_June%202013.pdf.
8 M.S.S. v. Belgium and Greece, App. No. 30696/09 (2011) [hereinafter M.S.S. Decision], http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-103050.
9 Joined Cases C-411/10 and C-493/10, N.S. v. Secretary of State for the Home Department and M. E. et al. v. Refugee Applications Comm’r, Minister for Justice, Equal. and Law Reform (Dec. 21, 2011), ¶¶ 78, 79 [hereinafter N.S. Decision], http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=ELEX:62010CJ0411:EN:HTML.
10 Id. ¶ 85.
11 Id. ¶ 86 (“By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman and degrading treatment, within the meaning of Article 4 of the Charter, the transfer would be incompatible with that provision.”).
12 Case C-4/11, Opinion of Advocate General Jääskinen Bundesrepublik Deutschland v. Kaveh Puid (Apr. 18, 2013) [hereinafter Advocate General Opinion], http://www.refworld.org/docid/51700d604.html.
13 Puid Decision, supra note 2, ¶ 30.
14 Advocate General Opinion, supra note 12, ¶ 5.
15 Id. ¶¶ 8-14.
16 Id. ¶¶ 27-31. This point of law was appealed (to the Hessischer Verwaltungsgerichthof), and although in the meantime the Bundesamt elected to exercise its discretion and recognize the applicant as a refugee, the issue of legality remained live, so far as a claim for damages for unlawful detention had also been made.
17 N.S. Decision, supra note 9, ¶¶ 107, 108.
18 See, e.g., R (MK (Iran)) v Secretary of State for the Home Department [2010] EWCA Civ 115, [2010] 1 WLR 2059, §42; Kheirollahi-Ahmadroghani v Secretary of State for the Home Department [2013] EWHC 1314 (Admin); R (AR (Iran)) v Secretary of State for the Home Department [2013] EWCA Civ 778. See also Puid Decision, supra note 2, ¶ 58, citing Opinion of Advocate General Trstenjek in Case C-620/10 Kastrati, §29.
19 Advocate General Opinion, supra note 12, ¶ 49 (footnote omitted).
20 Id. ¶ 58 (footnote omitted).
21 Id. ¶¶ 58, 59.
22 Id. ¶ 62 (“A contrary interpretation would be inconsistent with the primary objectives of Regulation No. 343/2003, which is to organise responsibilities among the Member States, ensure speed in the processing of asylum applications, and prevent forum shopping.”). 23 The Hessischer Verwaltungsgerichthof withdrew three questions after the judgment in N.S. had been brought to its attention: Puid Decision, supra note 2, ¶¶ 22-23.
24 Puid Decision, supra note 2, ¶¶ 25, 26.
25 Id. ¶¶ 35, 36.
26 See generally Dublin III, supra note 1.
27 The Dublin II version of Article 3(2) has been revised and moved to the ‘discretionary clauses’ of Dublin III. See id. at art. 17(1).
28 See M.S.S. Decision, supra note 8, ¶¶ 401, 402.
29 In R (on the application of EM (Eritrea)) v. Secretary of State for the Home Department, the UK Supreme Court carefully reviewed the ECJ’s judgment in N.S. and maintained that the critical test remained that articulated by the European Court of Human Rights in Soering v United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989), that is, serious risk of harm. [2014] UKSC 12 [hereinafter R v. Secretary of State]. It overruled the finding of the Court of Appeal that, “[s]hort of [systemic deficiency], even powerful evidence of individual risk is of no avail.” [2012] EWCA Civ 1336, ¶ 62 (per Lord Justice Sedley). While accepting that the Dublin system is based on a significant evidential presumption of compliance by participating States, the Supreme Court was clear that, “[v]iolation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system.” R v. Secretary of State, ¶ 42.
30 See J. Polakiewicz, EU Law and the ECHR: Will the European Union’s Accession Square the Circle?, Eur. Hum. Rts. L. Rev., 592, 602-5 (2013).