European Court of Justice sets new obstacles for deportation

The highest EU court, whose jurisprudence is binding for all member states, has granted stay to an asylum seeker from Eritrea who had applied for asylum in Germany, although he had already been recognized as a refugee in Italy.

The responsible Federal Office for Migration and Refugees (BAMF) in Germany therefore wanted to transfer the man to the Italian authorities as part of a retrial. According to the provisions of the relevant Dublin Regulation, responsibility for asylum-seeking third-country nationals usually lies with the member state in which the person first entered the so-called Schengen area.

The accompanying procedural guideline 2013/32 therefore provides that an application for international protection in Germany, for example, can be regarded as inadmissible if this protection has already been granted by another EU country, in this case Italy. The ECJ has now significantly increased the hurdles for returning migrants in such cases.

The Luxembourg judges emphasized that the rejection of an asylum application is only permissible if the person concerned has had the opportunity to be heard personally beforehand. At this hearing – and that is the real crux of the matter – the applicant can comment on whether another member state has actually granted him international protection.

He is then able to present all the specific circumstances of his case so that the asylum authority can decide on the basis of this information whether the applicant is in “serious danger” if he is transferred to the EU country of first entry and subject to “inhuman or degrading treatment” according to the EU Charter of Fundamental Rights. Should this be the case, the return of the person concerned as provided for in the Dublin Regulation would be inadmissible. The “refugee” is then likely to stay in the member state to which he illegally moved to.

In the future, the BAMF will have to carefully check each individual case since the authority will have to prove in court that the relevant provisions of the EU Charter of Fundamental Rights were adhered to – a long and arduous task. Moreover, whether this requirement is being met in practice is likely to lead to lengthy and controversial discussions. Inadequate accommodation options or hostility from the local population in a member state could be sufficient to make the deportation of a foreigner impossible.

It is therefore foreseeable that the already comparatively small number of transfers from Germany to other EU countries will continue to decline as a result of this new ruling. In addition, many more “protection seekers” who have already been registered in Italy or other poor Schengen countries, will now make their way to rich EU countries.

The Luxembourg judge’s verdict is also likely to sow a lot of discord in the EU since it does not value the so-called “European spirit”. The question arises as to how the ECJ made the assumption that the Charter of Fundamental Rights is not being respected by some individual countries. The observance of the fundamental and human rights as well as compliance with the European regulations on migration and asylum, have always been essential prerequisites for open borders in the Schengen zone.

The decision of the European Court of Justice has yet another unintended consequence: If “refugees’ are not allowed to be sent back to other member states because they are threatened with inhuman or degrading treatment there, then the meaningfulness of the quota regulation wanted by Brussels and Berlin for the distribution of asylum seekers within the EU as the core of a new European asylum policy, would no longer be valid.

Migrants who have been assigned to an “unattractive” host country, will obviously try to move to their “desired state” because this expectation is strengthened by the new ECJ ruling.