The Legality of Dublin Transfers

Sammanfattning: There is no right to asylum, but there is a right not to be returned to persecution. The principle of non-refoulement, which is expressed in article 3 ECHR, encompasses this right and it is an essential part of individual rights protection. The Dublin Regulation presumes that EU member state are safe and it designates which member state is responsible to try an application for asylum. The regulation allows for the transfer of the applicant to the designated state – a practice known as a Dublin transfer. This thesis applies the sources of law and the means of interpretation of both international law and EU law to discern the requirements for a Dublin transfer to be legal according to the ECHR and the Dublin Regulation respectively. The findings are compared and discussed from an individual rights perspective. Both systems require that there should be substantial grounds for believing that the applicant faces a real risk of torture, inhumane or degrading treatment in the receiving state for the transfer to be precluded. The prohibition includes indirect refoulement. The requirements on the applicant to meet these prerequisites have been considerably lowered by the ECtHR. The Dublin Regulation contains the additional prerequisite that systemic flaws in the asylum procedure and the reception conditions should cause this risk. There is lacking consensus on how this provision should be interpreted, but there is ample ground to argue that it should be interpreted in a manner compatible with the ECHR. According to both systems, the presumption of safety can be rebutted. The transferring state has a duty to inspect the actual conditions if there is information available indicating that human rights are not respected in the receiving state. The CJEU maintains that the presumption of safety concerns the raison d’être of the EU. From an individual rights perspective it is unsatisfactory that the meaning of systemic flaws is unclear and that the responsibility to investigate is contingent upon third party information. The present Dublin III Regulation lacks a system to generally suspend transfers to certain states, which means that protections is granted on a case-by-case basis, where the authorities of the member states must assess whether other member states fulfil their international obligations.