THE HIGH Court has referred an asylum appeals case to Europe’s highest court that will test the legality of transferring asylum seekers between EU member states which have different standards of protection for refugees.
In a ruling that may have far-reaching consequences, Ms Justice Maureen Clark said yesterday she would make a preliminary reference to the European Court of Justice (ECJ) in an appeal by five asylum seekers against a transfer order to Greece made by the Minister for Justice. The asylum seekers from Afghanistan, Iran and Algeria were issued with transfer orders under the Dublin II regulation – an EU law that stipulates asylum applications should be decided in the EU state where a person first arrives.
The asylum seekers do not dispute that they entered the EU through Greece. However, they allege their human rights would be infringed if they were returned to Greece as it does not operate a fair or humane asylum system.
There are up to 40 appeals pending in the High Court against transfer orders to Greece made under the Dublin II regulation.
A spokeswoman for the Department of Justice said yesterday it will take no action in these cases until a decision or ruling is made by the ECJ and the Irish courts.
The decision to refer the case to the ECJ means the appeal could set a legal precedent, which would affect potentially thousands of transfers to Greece across the EU.
The appeals against transfers to Greece draw on advice issued by the UN refugee agency UNHCR in December, which asked all EU states to refrain from transferring asylum seekers to Greece because of shortcomings in its system.
The UNHCR, Amnesty International and the AIRE (Advice on Individual rights in Europe, a London-based NGO), were appointed amicus curiae (friend of the court) in the High Court case. All three organisations are critical of the Greek asylum system.
Sophie Magennis, head of the UNHCR Ireland office, said the agency was aware of divergent practice across the EU in relation to the transfer of asylum seekers to Greece and it would be helpful to have clarity on the issue.
“The decision today of the High Court to refer this particular question to the court in Luxembourg we hope will be helpful in seeking clarity on this point for all EU member states,” she said.
The critical legal point, which is expected to be at the centre of the ECJ deliberations, relates to the discretion that each EU member state has to determine whether to send an asylum seeker back under the Dublin II regulation. The UNHCR argues EU states must consider if a person’s rights would be breached if they were sent back to a state that does not have a functioning asylum system.
However, the Government and several other EU states – who are likely to join the ECJ case – would argue the discretion not to issue transfer orders should be severely limited. The British Court of Appeal has also referred a similar case to the ECJ.
Colm O’Gorman of Amnesty International Ireland last night welcomed the referral: “Our organisation intervened in this case to ensure that all asylum seekers have the right to a fair asylum process,” he said.