UK court limits the effects of the NS judgment of the CJEU to Article 4 rights

Friday, October 4, 2013

United Kingdom: The Queen on the application of Efrem Medhanye - and - Secretary of State for the Home Department, [2012] EWHC 1799, 02/07/2012

The claimant, an Eritrean national, sought asylum in the UK, having previously claimed asylum in Italy. The Secretary of State decided to remove him to Italy under Regulation 343/2003 (Dublin II). The claimant challenged the Secretary of State’s decision to certify as “clearly unfounded” his claim that removing him to Italy would breach his rights under the European Convention on Human Rights (“ECHR”). His application for judicial review was refused.

The Court did not find anything in the CJEU NS judgment, invoked by the claimant, to support the view that removal of the Claimant to Italy would violate his rights under EU law and therefore dismissed the claim in its entirety. The main points behind the reasoning for this decision were as follows:

The European Union aspires to be a close union, whose underlying principle is that its members enjoy mutual trust and confidence in each other, particularly mutual trust and confidence that each state will faithfully comply with binding provisions of union law, including provisions of law protecting fundamental human rights. In this context, the Court found that it is inconsistent with this principle to impose a legal duty on one member state in effect to monitor whether another member state was complying with its obligations under union law [paragraph 14]. Furthermore, as the claimant sought to distinguish the findings of the NS CJEU case from his own position in that the NS CJEU judgment did not rule out the possibility that, in a case where the contemplated treatment by the receiving State did not amount to inhuman or degrading treatment in breach of Article 4 of the Charter of Fundamental Rights, the transferring State had to nonetheless satisfy itself that the treatment would not violate his right to dignity under Article 1.  However the Court ruled that this submission rested upon “a fundamental misreading” of what the CJEU has decided in the NS case. In that case it was decided that the removal of the applicant to Greece would risk exposing him to degrading treatment contrary to Article 4 of the Charter. But as far as other Charter (and Convention) rights are concerned, the principle of mutual respect should prevail. [paragraph 15]This might well have been the case in the European Union, had the CJEU not taken the “novel” and perhaps “controversial” view that in the asylum context, one member state could be obliged to determine whether another member state was complying with its legal duties under EU law. Nonetheless, with due regard to the “raison d’être” of the EU, the CJEU “very carefully and with great precision” delineated precisely the nature and scope of the legal duty of the transferring Member State, in paragraph 86 of the NS judgments. This means that according to the Court, the duty as specified in this paragraph “simply excludes” the independent operation of Article 1 of the Charter, which in fact that CJEU said expressly later in NS  it stated that Articles 1, 18 (right to asylum) and 47 (fair trial) of the Charter do not lead to a different answer [paragraph 15]

For the full text of the judgment please see Bailii: England and Wales High Court (Administrative Court) Decisions: Case [2012] EWHC 1799
For a relevant blog post on this judgment please see: UK Human Rights Blog: No duty to snitch on another EU country's asylum conditions

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Inhuman or degrading treatment or punishment
Dublin Transfer