This guest post was written by Nesa Zimmermann, Ph.D. candidate and teaching assistant at the University of Geneva, Switzerland (*)
The Court’s recent ruling in Tarakhel v. Switzerland became famous almost before it was delivered. The case has received strong media attention, and some claimed the judgment signified “the end of the Dublin system”. However, the importance of the Tarakhel judgement should not be overrated. For one thing, it remains yet to be seen to what extent the Court’s ruling can and will be applied to other cases. Besides, even though the case has been called a “principled decision in favour of vulnerable persons”, it consists, from a scholarly point of view, of a series of adjustments: a case contributing to the evolution of existing case law rather than a revolution on its own.
The facts of the case
The case concerned an Afghan couple with six children, the youngest being born in 2012, after the family had arrived in Switzerland. They had entered the Dublin system at the Italian border in July 2011, where they were registered and placed in a reception facility. Due to poor living conditions in particular, they left the centre about ten days later, traveling first to Austria, then to Switzerland. There, they applied again for asylum, but their request was unsuccessful and the Swiss authorities ordered their return to Italy.
Before the Strasbourg Court, the applicants submitted that their return to Italy, in the absence of individual guarantees concerning their care, would expose them to inhuman and degrading treatment contrary to Article 3 and violate their rights under Article 8. They considered the Italian asylum system to be deficient in three ways: significant delays in processing times, insufficient capacity of reception facilities, and unsafe and poor living conditions in the centres. Having requested provisional measures, the family obtained the right to remain in Switzerland until the delivery of the Grand Chamber judgement.
The Court’s reasoning
The Court chose not to examine the complaints under Article 8. It briefly examined Article 13, but found no violation. Hence, the core of the judgement revolved around Article 3. Not surprisingly, therefore, the central issue lay in ascertaining whether the circumstances of the case met the minimum threshold of severity required. Concerning a potential removal from one “Dublin state” to another, a second important question arose: as the Court recalled, the Dublin system relies upon the presumption that all participating states respect their human rights obligations under the Convention. However, this presumption can be rebutted, and if so, states are under a Convention obligation to apply the Dublin sovereignty clause and suspend the transfer(s) concerned. This was the case in M.S.S. v. Belgium and Greece, where the Court found systemic failures in the Greek asylum system, and barred all removals to that country.
The Court took great care to distinguish Tarakhel from its famous predecessor, M.S.S. It specified that, in terms of scale as well as severity, “the current situation in Italy [could] in no way be compared” to the one prevailing in Greece at the relevant time. Even if the Italian asylum system did not “collapse” in a way comparable to the Greek situation, the Court accepted the existence of severe shortcomings, particularly in the lack of reception facilities (less than 10,000 places available in all of Italy and 15,000 to 30,000 new asylum applicants arriving every year). The Court also cited instances of violence, insalubrity, and separation of families in some centres.
The Court considered the available information to cast “serious doubts” on the system’s current capacities. It concluded accordingly that “the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, [could] not be dismissed as unfounded” (§115).
Moving to the applicants’ particular situation, the Court underlined that asylum seekers were part of a “particularly underprivileged and vulnerable” population group and as such needed special protection under Article 3 (§118). While this echoed M.S.S., the Court stressed that the applicants’ situation was not comparable to the latter. However, the Court also reiterated the relativity of the minimum level of severity threshold under Article 3. In this regard, the Court recalled that the child’s vulnerability had been considered in prior case law to be a “decisive factor”, even when the children were accompanied by their parents (§99). This led the Court to accept that the applicants’ fears of poor living conditions, especially concerns about being placed in facilities incompatible with the children’s needs and the risk of being separated, were not unfounded.
Differentiating the case at hand from M.S.S., the Court established that a general ban on returns to Italy, even if restricted to families with small children, was unjustified. Instead, it considered that the circumstances of the case required the Swiss authorities to obtain specific assurances from their Italian counterparts that, on arrival, the family would not be separated, and would be received in facilities adapted to the children’s age. The Court concluded that removal in the absence of such assurances would violate Article 3.
The seminal case of M.S.S. has been qualified as “the end of mutual confidence” in the Dublin system. The big question after the ruling was to determine the circumstances under which the Convention requires Dublin states to “distrust” each other.
Whereas the European Court of Justice has interpreted M.S.S. to mean that “systemic deficiencies” in a state’s asylum system rebutted the Dublin presumption and later that only systemic deficiencies were able to do so, other Courts, in particular the UK Supreme Court, ruled that M.S.S. could not possibly require asylum seekers to prove the failure of a country’s asylum system. Instead, the UK Supreme Court accepted that the Dublin presumption could be rebutted if the applicant showed “substantial grounds for believing” that he or she, personally, would be at a “real risk” of treatment contrary to Article 3 (§52). The Court has applied this reasoning in Tarakhel.
As such, the test of showing substantial grounds and a real risk can hardly be qualified as revolutionary. On the contrary, it relies on firmly established Article 3 case law. Still, its application in a Dublin context is somewhat novel and further narrows the scope of the Dublin presumption. It has accordingly been criticised by the dissenting judges. Regardless, it would seem that they would have been prepared to accept this test, if only they had been convinced of a real risk of treatment sufficiently severe to pass the Article 3 threshold. Ultimately, it was on this aspect that the majority decision was challenged. Two points should be made in answer to these criticisms.
First, it seems that the Court’s – admittedly somewhat easy – acceptance of a real risk of treatment contrary to Article 3 in Tarakhel stems from the applicants’ special vulnerability as a family with children. Indeed, contrary to earlier cases, and to M.S.S. specifically, the applicants did not show that they had personally suffered ill-treatment, nor that they were more at risk of suffering ill-treatment than other asylum seekers susceptible of being returned to Italy. Despite that, the Court was convinced that their particular vulnerability made Article 3 protection necessary. Unlike the dissenting judges’ suggestion, this special vulnerability distinguishes Tarakhel from other recent cases of Dublin returns to Italy. Indeed, most cases cited by the minority opinion did not concern families. One concerned a parent with small children, but it was determined that they had received sufficient care from the competent Italian authorities.
Second, the Court’s solution is a nuanced one, adapted to the applicants’ relatively lower risk: the Court does not ban the return of asylum seekers, or even of families with children, to Italy. Instead, it required the Swiss authorities to obtain specific assurances as to the treatment of vulnerable individuals upon their return to Italy. In the applicants’ case, this concerned the guarantee that they would not be separated, and that they would be received in facilities adapted to the children’s specific needs.
The Court thus created an intermediate category where Dublin returns can take place, but only after specific guarantees are obtained. If it is true that this introduces another requirement somewhat alien to the “Dublin spirit” of mutual trust, the case’s outcome seems perfectly proportionate in view of the Court’s findings concerning the Italian asylum system. It should be recalled that the Court did indeed depict shortcomings in that system, some of which were quite severe. Moreover, the Court’s reasoning, even if it is not as explicit on this point as some may have wished, shows the importance of vulnerability considerations in assessing a case’s severity, and the Court’s increased willingness to use vulnerability as a heuristic device. In this sense, Tarakhel can be considered one further step in what scholarly opinion has labelled a quiet revolution in the Court’s reasoning.
However, the case leaves us with a question: which cases fall into this intermediate category? Indeed, even if Tarakhel confirms that all asylum seekers are particularly vulnerable, as observed in M.S.S. and repeated in subsequent cases, it follows from the Court’s reasoning that the case’s outcome would have been different if it hadn’t concerned a family with young children. The relation between different degrees of vulnerability, and even different degrees of particular vulnerability, remains unclear and underexplored. Only careful analysis of these issues will allow exploiting the possibilities of vulnerability reasoning while avoiding its potential shortfalls. Hence, there is still room for evolution, and it is to be hoped that future cases will examine in more detail the many questions raised by the Court’s still recent vulnerability reasoning.
(*) Nesa Zimmermann’s research interests include non-discrimination and minority rights. She is currently writing a Ph.D. on the concept of vulnerability in the case law of regional human rights courts.