Advocate General of the Court of Justice: Asylum seekers may not be sent back to countries where their fundamental rights are not respected

Asylum seekers may not be transferred to other Member States if this is in breach with the Charter of Fundamental Rights of the European Union, Advocate General Trstenjak of the Court of Justice of the European Union (CJEU) argued in an opinion concerning the case N.S. V Secretary of State for the Home Department (C-411/10).

The case regards an Afghan national who irregularly entered Europe through Greece, where he was arrested, and then made his way to England where he applied for asylum. Under the Dublin Regulation, the responsible Member State in the case would be Greece. The Court of Justice will deal with the issue of whether there is an obligation for the transferring Member State, namely England here, not to transfer the asylum applicant in situations where there is a serious risk of a violation of their fundamental rights under the Charter.

According to the Advocate General, the transferring Member State must examine the asylum application under Article 3(2) of the Dublin Regulation if the transfer to another Member State/Greece would expose the asylum seeker to a serious risk of violation of his or her rights granted by the Charter of Fundamental Rights.

The opinion of the Advocate General is important and influential but not binding for the decision of the CJEU, which can be expected to give its judgment in the cases in several months. This case deals with similar issues under the Dublin system to the often quoted M.S.S. v Belgium and Greece case examined by the Strasbourg based European Court of Human Rights.