Strasbourg Observers

M.S.S. v. Belgium and Greece (2): The impact on EU Asylum Law

February 24, 2011

By Laurens Lavrysen*

As Lourdes explained in her blog post, “any attempt to comment exhaustively on the recent landmark ruling of the Grand Chamber in M.S.S. v Belgium and Greece in one page would be bound to fail.” This post will therefore focus on the impact of this judgment on EU Asylum Law, in particular on the application of the Dublin II Regulation and on the Reception Conditions Directive.

Dublin II Regulation

The Dublin II Regulation (Regulation 2003/343/CE) contains a hierarchical list of criteria to determine which EU member state is responsible for the examination of an asylum application lodged in one of the member states by a third-country national. Not the first, but the most applied criterion is that of the country where the asylum seeker has irregularly entered the European Union (Art. 10, § 1). Regardless of these criteria, the member state where the asylum application is lodged can decide on the basis of the so-called “sovereignty clause” to examine the application (Art. 3, § 2).

The M.S.S. case concerns an Afghan asylum seeker who lodged an asylum application in Belgium. Based on the Dublin II Regulation Belgium sent him back to Greece, the country through which he had irregularly entered the EU. In Greece he was placed in detention twice, during which he was subjected to degrading detention circumstances. After his release, he was abandoned to live on the streets without any support by the Greek authorities. The Court ruled that both the detention circumstances and the living circumstances (see below) amounted to a violation of Art. 3 ECHR.

The question was whether or not Belgium was allowed to transfer the applicant, being aware of the structural shortcomings in the asylum procedure and of the systematic problems in the detention and reception of asylum seekers in Greece. These problems were well-documented in reports of ngo’s and international instances such as the UN High Commissioner for Refugees and the European Committee for the Prevention of Torture.

Art. 3 ECHR prohibits the expulsion of an alien to a country where he or she runs a real risk of being subjected to torture or to an inhuman or degrading treatment or punishment (e.g. Cruz Varas and Others v. Sweden (1991), Saadi v. Italy (GC, 2008)). Also the indirect removal, through an intermediary country, of an alien to a country where he or she runs such a risk is prohibited by Art. 3 (e.g. T.I. v. The United Kingdom (2000)). Transferring states must therefore assure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid his or her expulsion to a country where he runs a risk of being subjected to such a treatment. According to the Court Belgium had violated Art. 3 ECHR by exposing the applicant to the risks of the deficient asylum procedure in Greece, which amounted to a prohibited “indirect refoulement”. Belgium had committed a second violation of Art. 3 by exposing the applicant to the degrading detention and living conditions in Greece.

What does this ruling imply? It more or less means the end of mutual trust in EU Asylum Law. Transferring states should not just presume that other member states comply with their international obligations. When an issue arises under Art. 3 ECHR, they are obliged to apply the “sovereignty clause”. This concern was already reflected in the 2008 Commission Proposal for a new regulation replacing Dublin II, which provides a procedure to suspend transfers to member states which do not comply with the Reception Conditions Directive and the Asylum Procedures Directive. This proposal, which has been amended by the European Parliament and now awaits consideration by the Council, however fails to remedy a principal defect of the original regulation: richer Western European member states will continue to shift their responsibility to overburdened Southern European member states. A system which primary focus lies on the “outsourcing” of asylum seekers, rather than on the concern to provide sufficient international protection, is inherently at odds with human rights.

Reception Conditions Directive

A second interesting aspect of the judgment from the viewpoint of EU Asylum Law is the applicant’s complaint about his living circumstances in Greece. The Court first of all made clear that Art. 3 ECHR does not contain a general obligation to provide asylum seekers with a home or with financial assistance. However because asylum seekers are a particularly underprivileged and vulnerable population group in need of special protection (see Lourdes’ post) and because the Reception Conditions Directive (Directive 2003/9/EC) entails to obligation to provide accommodation and decent material conditions to impoverished asylum seekers, the Court ruled that Greece had violated Art. 3. By attributing decisive power to the obligations under the Reception Conditions Directive, the Court strengthens the impact of this instrument. When a state fails to comply with the Reception Conditions Directive, an asylum seeker can invoke a subjective right to receive assistance under Art. 3 ECHR.

Although this ruling has far-reaching socio-economic consequences, the restrictive approach adopted by the Court is regrettable. The Court did everything to avoid creating socio-economic sub-rights under Art. 3 ECHR. It’s strange that in doing so, the Court introduces a legality test in the Art. 3 analysis. This approach is understandable in Art. 8 cases – for example in cases where a government fails to enforce its own environmental legislation (e.g. the recent case of Dées v. Hungary (2010)) – because Art. 8 ECHR explicitly requires an interference to be “in accordance with the law”. Legality arguments are however alien to Art. 3, all that is required to find a violation of this provision is whether the threshold (“the minimum level of severity”) was reached. Therefore there is no real reason why this ruling should be limited only to asylum seekers and not to other underprivileged and vulnerable persons. One could argue that a state is under a positive obligation to provide a minimum of shelter and assistance  – or at least to take steps in this direction – and that abandoning people to eventually die on the streets violates Art. 3 ECHR.


*Laurens Lavrysen works as a teaching assistant / Ph.D researcher at the Human Rights Centre of Ghent University. His research interest lies in the theory of positive obligations under the European Convention on Human Rights.

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