In Case C-411/10 N.S., the applicant, an Afghan national, came to the UK after travelling through, inter alia, Greece. He did not apply for asylum in Greece, and he claimed that the Greek authorities detained him, gave him an order to leave Greece, and subsequently arrested him and expelled him to Turkey, from where he travelled to the UK. The UK then asked Greece to take charge of the applicant under the Dublin Regulation, and Greece was deemed to have accepted responsibility. The Applicant contended that transfer to Greece would violate his rights under the ECHR. It emerged from the order for reference that:
- Asylum procedures in Greece are said to have serious shortcomings.
- The proportion of asylum applications granted in Greece is extremely low
- Judicial remedies in Greece are said to be inadequate and very difficult to access
- Conditions for the reception of asylum seekers are considered to be inadequate.
The applicant had requested the Secretary of State to accept responsibility for his asylum claim under Article 3(2) of the Dublin Regulation. The applicant also argued that the protection offered by the Charter of Fundamental Rights of the EU is higher and goes beyond, inter alia, Article 3 ECHR.
In Case C-493/10 M.E., the applicants, from Afghanistan, Iran and Algeria, applied for asylum in Ireland, having previously entered Greece, though none of them had applied for asylum there. It was not argued before the national Court that the transfer of the applicants to Greece would violate the ECHR. The applicants argued that the procedures and conditions for asylum seekers in Greece were inadequate, and that Ireland was required to take responsibility for them under Article 3(2) of the Dublin Regulation.
The two referring Courts, the Court of Appeal of England and Wales, and the Irish High Court, stayed the various domestic proceedings, and referred a number of questions to the Court of Justice, which considered the questions together.
The first question considered by the Court of Justice was, essentially, whether a decision adopted by a Member State on the basis of Article 3(2) of the Dublin Regulation to examine a claim for asylum which is not its responsibility under the criteria in the Dublin Regulation falls within the scope of EU law, and Article 51 of the Charter. The Court replied, inter alia, that the discretionary power conferred on the Member States by Article 3(2) forms part of the mechanism for determining the Member State responsible for an asylum application, and that a Member State exercising that discretionary power must be considered as implementing EU law within the meaning of Article 6 TEU and Article 51(1) of the Charter.
The second set of questions related to, inter alia;
(a) whether Member State is obliged to assess compliance of a receiving Member State with EU fundamental rights;
(b) whether a conclusive presumption that a receiving Member State will observe fundamental rights is precluded;
(c) whether a host Member State is obliged to accept responsibility for examining an asylum claim where a responsible State is found not to be in compliance with fundamental rights; and
(d) whether national ‘safe country’ provisions are compatible with Article 47 of the Charter.
The Court considered these matters together. The Court stated, inter alia, that Member States must make sure that they do not rely on an interpretation of secondary legislation which would be in conflict with the fundamental rights protected by the EU (see, e.g., Case C-101/01 Lindqvist  ECR I-12971).
The Court stated that it must be assumed that the treatment of asylum seekers in all Member States complies with the Charter, the Geneva Convention, and the ECHR, but that it is not inconceivable that the system may experience major operational problems, and that while it would not be compatible with the aims of the Dublin Regulation were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in a Member State, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, transfer to such a State would be incompatible with that provision.
Accordingly, the Court found that the presumption that Member States comply with the Charter, Geneva Convention, and ECHR must be regarded as rebuttable; and that a conclusive presumption that a Member State responsible under the Dublin Regulation observes fundamental rights is precluded under EU law.
The Court ruled that Article 4 of the Charter must be interpreted as meaning that a Member State may not transfer an asylum seeker under the Dublin Regulation where it cannot be unaware that systematic deficiencies in the asylum procedure and reception conditions in a receiving Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment under Article 4.
The Court further ruled that, subject to Article 3(2) of the Dublin Regulation, where a Member State finds that it is impossible to transfer an applicant to another Member State under the Dublin Regulation, the Member State must continue to examine the criteria in Chapter III of the Dublin Regulation in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.
Finally, in respect of the second set of questions, the Court ruled that the Member State in which the applicant is present must ensure that it does not worsen a situation where an applicant’s fundamental rights have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time, and that, if necessary, the Member State where the applicant is present must examine the application under Article 3(2) of the Regulation.
In respect of Greece, the Court found that the extent of the infringement of fundamental rights described in M.S.S. v Belgium and Greece, unreported, EctHR, 21st January 2011, shows that there existed in Greece a systemic deficiency in the asylum procedure and reception conditions.
The Court noted that information such as that cited by the EctHR re relevant risks to which asylum seekers would be exposed enables Member States to assess the functioning of the Member States’ asylum systems, making it possible to evaluate risks.
The Court next addressed the question of whether the extent of the protection conferred on a person to whom the Dublin Regulation applies by the general principles of EU law and, in particular, Articles 1, 18 and 47 of the Charter, is wider than the protection conferred by Article 3 ECHR. The Court’s reply was that the aforementioned Articles of the Charter do not lead to different answers to the applicants than those already given above.
Finally, the Court addressed whether, in so far as the preceding questions arise in respect of the obligations of the UK, the answers to those questions should be qualified in light of Protocol No. 30. The Court’s replied that its answers did not require qualification in any respect in light of Protocol No. 30.