The European Court of Justice (ECJ) facilitates the return of refugees to the EU member state where their first asylum application was made.
The European Union’s highest court, the European Court of Justice (ECJ), has clarified the court’s powers in cases where the deportation of refugees to other European Union member states is planned.
According to the ECJ’s judgment on Thursday (30 November), the European Court of Justice will decide whether an asylum seeker risks being returned to his or her country of origin, such as Syria or Afghanistan, after being returned to another EU country.
The courts are also not allowed to check whether the asylum seekers could face persecution in their home country.
“The second Member State cannot, in principle, examine the risk of refoulement to the applicant’s country of origins,” the Luxembourg-based court said in an online press release.
However, the court also ruled that “information concerning the asylum procedure must be provided to the applicant even when a second asylum application is made.”
“A failure to comply with those obligations may, under certain conditions, justify the annulment of the transfer decision,” the press release reads.
Risk of persecution?
The ruling by the European Court of Justice was prompted by the case of several migrants from Afghanistan, Iraq and Pakistan who applied for international protection in Italy after their asylum applications in fellow EU countries Slovenia, Sweden, Germany and Finland were rejected.
Italy thereafter requested for them to be returned to the respective EU states.
According to the EU’s Dublin Regulation, the asylum procedure is generally the responsibility of the EU state in which an asylum application was first submitted.
Germany and the other countries therefore agreed to take the asylum seekers back from Italy.
The asylum seekers then took legal action, arguing they would face deportation to a country where they would be at risk of persecution if they’d be returned to the EU countries where they first applied for asylum.
The Italian courts asked the ECJ whether they could take into account the risk of deportation to the country of origin in the event of such a return transfer.
The ECJ on Thursday answered in the negative: Unless there are “exceptional circumstances”, Italy is not obliged to examine and may not check whether the country of the initial application would refuse refugee protection and therefore send the refugees back to their country of origin.
Expected trust to protect human rights
The principle of non-refoulement prohibits the deportation of migrants to countries where they are at risk of persecution. It is enshrined in international law, which the EU abides by.
As a rule, EU states must trust each other to respect fundamental rights, which are recognized by EU law, the ECJ ruling said.
“Differences of opinion between the Member States [sic] as regards the interpretation of the conditions for international protection” does not mean there are “systemic deficiencies,” the judges are quoted in the press release.
It is worth noting, however, that some member states have a poor track record on refugee protection. Hungarian authorities, for example, violated two Afghan refugees’ and a Pakistani national’s human rights, the European Court of Human Rights ruled earlier this year.
And just this week, the ECHR found Italy guilty of inhumane and degrading treatment of four underage Ghanaian migrants.
Fundamental rights such as dignity, fairness, respect and equality are enshrined in the EU Charter of Fundamental Rights.
Located in Luxembourg, a small EU member country of 640,000 wedged in between Belgium, France and Germany, the mission of the European Court of Justice is to ensure that “EU law is interpreted and applied the same in every EU country” as well as that member countries and EU institutions “abide by EU law.”
Decisions handed down by the ICJ are considered to be binding.