Guest post by Amanda Spalding, PhD candidate at Kings College London and a teaching fellow of ECHR and EU law at the School of Oriental and African Studies (SOAS).

EURODAC (Source: COE)
In 2003 the EU adopted the Dublin Convention which set criteria for establishing which country was responsible for processing an asylum application. The Dublin Convention became the Dublin II Regulation and then the Dublin III Regulation, but its general premise has remained the same. It establishes a hierarchy of criteria to be used when determining which Member State is responsible for examining an asylum application lodged within the EU. The Dublin system also applies in Switzerland, Liechtenstein, Iceland, and Norway.

One of the key criteria for determining who is responsible for an asylum application is  geographical; simply, which ‘Dublin state’ did the applicant initially enter irregularly (Article 13 of Dublin II Regulation)? If the asylum seeker moves on from the territory of initial entry to another Dublin state, the second locale may transfer the individual back to the initial state of entry. These days, the Dublin system is underpinned and aided by the EURODAC database system which requires each state to take the fingerprints of every person over the age of 14 who either makes an application for asylum or is an alien who has been apprehended in connection with an irregular entry by land, sea, or air. These data are transmitted to the Central Unit database where states can compare fingerprints to see if an asylum applicant previously entered another Dublin state (Council Regulation (EC) No 2725/2000).

This system is based upon mutual trust between Dublin states. However, that trust may erode or be rebutted where there are fundamental and systematic deficiencies in an asylum system, resulting in inhumane or degrading treatment. When a state attempts a Dublin transfer and it cannot have been unaware of the systemic flaws in the receiving state’s asylum system then the transferring state and the receiving state may be in violation of Article 3 of the European Convention of Human Rights or Article 4 of the European Union Charter of Fundamental Rights (see N.S. v Secretary of State for Home Department and M.S.S. v Greece and Belgium). This has been the case for Dublin Transfers to Greece for quite some time (see the most recent judgment of the European Court of Human Rights (ECtHR) on the conditions in Greece in A.E. v Greece from November 2014).

Although many human rights claims are raised in EU asylum cases (including those discussed below), I would like to focus on the Article 3 ECHR claims. Article 3 prohibits torture and inhumane or degrading treatment or punishment (as does Article 4 of the EU Charter), it is absolute in character―meaning there are no exceptions to this right―making it a fundamental human right.

The European Court of Human Rights (Image: Telegraph)
The ECtHR made a surprising judgment in 2013 when it failed to find that the conditions for asylum seekers in Italy violated Article 3 of the Convention (Hussein v Italy and the Netherlands). The applicant was a Somali asylum seeker who had initially entered Italy before moving onto the Netherlands. She argued that whilst in Italy she had not been enabled to apply for asylum, had been told to leave the reception centre without any advice as to where to go, and had been forced to live on the streets which had ended in her rape. She argued that if she was forced to return to Italy she may be made destitute and homeless and that there was a risk of refoulement given the ineffectiveness of the Italian asylum regime.

The ECtHR examined various reports from the UNHCR, the Council of Europe Commissioner for Human Rights, and other NGOs. These reports highlighted many problems with the Italian system including overcrowding of facilities, a significant variation in the quality of assistance, the maximum six-month time limit for asylum seekers to be kept in reception centres, a lack of legal and socio-psychological assistance, and a chronic lack of places for asylum seekers. The Court also noted that both Germany and Belgium had suspended any Dublin transfers to Italy due to serious problems with the treatment of asylum seekers there. However, the ECtHR reiterated that states are not required under Article 3 to provide a home for everyone in their jurisdiction or to provide refugees with financial assistance and accepted Italy’s weak assertions that the system was not significantly deficient (para 70). The Court therefore found that while there were certainly shortcomings in the Italian system they were not systemic failures of sufficient severity to engage Article 3.

Source: JRS
The Court once again had the opportunity to consider whether the conditions in Italy for asylum seekers violated Article 3 in Tarakhel v Switzerland and Italy. This case involved an Afghan asylum-seeking family that had initially entered Italy and then moved on irregularly to Switzerland to claim asylum. The family argued that the conditions in Italy breached Article 3 as they were unsanitary, overcrowded, and that a climate of violence existed (para 11). The applicant also argued that the inefficiencies of the Italian asylum system may result in homelessness and that families were systematically broken up. Again the Court considered various reports from the UNHCR, the Council of Europe, and other NGOs which highlighted deficiencies in the Italian system and the fact that Belgium and Germany continued to suspend Dublin transfers to Italy. The Court found that while the UNHCR and Council of Europe reports detailed a lack of facilities and coordination in Italy, they did not mention unsanitary or violent conditions (para 111-112). The Court also found that the methods used to calculate the number of asylum seekers without accommodation in Italy was disputed and it was not prepared to rule on this point. However, the Court found that while there may not be conditions in Italy sufficient to reach Article 3 generally, the fact that the children seemed at real risk of homelessness and of being separated from their parents meant that a violation of Article 3 would occur if Switzerland did not obtain guarantees from the Italian authorities that the family would not be split up and would be kept in accommodation appropriate for the age of the children.

The difference between the facts of the Hussein case and the Tarakhel case are fairly negligible except that in Hussein the applicant did not argue she might be separated from her children. Their different outcomes indicate that the Court may be starting to recognise the poor conditions of the Italian asylum system. Yet, the ruling in Tarakhel falls well short of an actual ‘crack-down’ on Italy.

The ECtHR was made aware of the fact that Italy and the European Asylum Support Office signed a Special Support Plan in June 2013 aimed at improving the conditions for asylum seekers, but over a year later it seems nothing has changed. This makes the Court's continuing attitude of deference in Tarakhel surprising. In M.S.S. v Greece and Belgium, the Court found that conditions of extreme material poverty when met with official indifference could amount to a breach of Article 3. The Court found the Greek officials to be indifferent as they could not have failed to notice or assumed that the applicant was homeless―it is hard to see how the Italian authorities are not regarded as acting indifferently when they apply a six-month time limit to reception centre stays irrespective of the individual’s ability to provide for themselves. This means that the asylum seeker may be told to leave the centre with no means of providing for himself or herself. The fact that the Court was a little tougher on Italy in this case gives some hope that it might be firmer in the future but for the time being the result is disappointing.

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How to cite this blog post (Harvard style):

Spalding, A. (2015) Tarakhel v Switzerland: The ECtHR Finally Cracks Down on Italy? Available at: http://bordercriminologies.law.ox.ac.uk/tarakhel-v-switzerland/ (Accessed [date]).