Reflections on Reading Tarakhel: Is 'How Bad is Bad Enough' Good Enough?

Guest post by Minos Mouzourakis, an MSc graduate in Refugee and Forced Migration Studies from the Refugee Studies Centre, University of Oxford, holding law degrees from University College London and Aix-Marseille Université. He has worked with NGOs in Athens and Oxford, the Cyprus Permanent Representation to the EU and the Council of the European Union, and conducted research for the European Parliament and UNHCR. In this post, Minos summarises a new paper co-authored with Cathryn Costello on the recent Tarakhel v Switzerland ruling.

As explained in a recent post by Amanda Spalding on this blog, the Tarakhel v Switzerland ruling is the latest word from Grand Chamber of the European Court of Human Rights (ECtHR) on Dublin returns. Its contribution to the jurisprudence is to reassert well-established principles, quite minimal ones we suggest in our paper, which prevent states from returning asylum-seekers where there are substantial grounds to believe there’s a real risk of inhuman and degrading treatment. The ruling rejects erroneous approaches developed under both ECHR and EU law (as evidenced in some national court rulings), in particular in the wake of the NS/ME judgment of the Court of Justice of the European Union (CJEU), which required applicants to show a particular type of Article 3 risk, namely one emanating from ‘systemic deficiencies’ in the asylum system of the receiving state, and what sorts of evidence were required to rebut the presumption of safety accorded to Dublin states. The Tarakhel judgment of the ECtHR has put an end to that uncertainty. The ECtHR holds that there’s no additional requirement of ‘systemic deficiencies,’ whilst dispelling the argument that a statement by the United Nations High Commissioner for Refugees (UNHCR) is determinative of conditions precluding a Dublin transfer.

Instead, the ECtHR reasserted the duty to (a) do ‘thorough and individualised’ assessment in order to obtain ‘detailed and reliable information’ on whether the particular individual’s needs would be guaranteed in the host state, and (b) suspend removal if there are substantial grounds to believe there’s a real risk of inhuman and degrading treatment upon transfer. In that way, Tarakhel seems to challenge the ostensibly automatic operation of the Dublin system among Member States. The provision for suspension of transfers in the Dublin Regulation, narrowly confined within the boundaries of ‘systemic deficiencies’ raising substantial grounds to believe in a real risk of inhuman and degrading treatment, is both at odds with the ECtHR approach and with the spirit of the Dublin III Regulation. The new Regulation, which entered into force in July 2013 and applies to claims lodged after 1 January 2014, lays down enhanced procedural rights, implying the need for a full consideration of the rights of the asylum seeker pre-transfer, as well as the rights-protective stance taken by the CJEU in its MA judgment. 

In the wake of Tarakhel, we argue for a fundamental rethink of the Dublin Regulation. Moving away from coercion in the allocation of responsibility for refugee claims is imperative if any system is to be fair and effective. The topic of how best to allocate responsibility for asylum claims in Europe has yet to be addressed politically, although it’s creeping up the political agenda. In the meantime, at least the Tarakhel ruling will protect asylum seekers from removal to face inhuman and degrading reception conditions.

The full paper is available for download on SSRN here.

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How to cite this blog post (Harvard style):

Mouzourakis, M. (2015) Reflections on Reading Tarakhel: Is 'How Bad is Bad Enough' Good Enough? Available at: http://bordercriminologies.law.ox.ac.uk/reflections-on-reading-tarakhel/ (Accessed [date]).