Dublin Convention Shouldn't be Applied Automatically says Human Rights Court

A ruling by the European Court of Human Rights in March this year that sending back of asylum seekers to situations where they could face persecution violates the European Convention of Human Rights, regardless of who is the agent of persecution, was welcomed by the refugee rights campaigners despite the fact that the actual appeal was dismissed.

T. I. is a Sri Lankan national, born in 1969 and at the time of the trial he was still held in Campsfield House Detention Centre, Kidlington, Oxfordshire. He fled Sri Lanka after he had been subjected to inhuman treatment at the hands of the LTTE, the Army, ENDLF (a pro-government Tamil group) and the police since 1993. In 1996 he escaped to Germany, where he claimed asylum. His claim and subsequent appeal in 1997 was rejected, and a deportation order was issued.

In 1997 T. I. clandestinely fled to the UK, where he then claimed asylum. In 1998, the UK requested that Germany accept responsibility for the application under the Dublin Convention. He appealed to the Court of Appeal, complaining that the German standard of proof was too high and that Germany failed to recognise persons as refugees when persecuted by non-state agents. In August 1998 he was refused based on the claim that Germany was a safe third country. He then took his case to the ECHR, claiming a violation of Articles 2, 3, 8, and 13 of the Convention, as the German authorities would not take into account any risk of persecution or ill-treatment that is not directly linked to the Sri Lankan State. His claims of torture were confirmed by two medical reports from Medical Foundation.

His appeal was unfortunately dismissed based on Article 53(6) of the German Aliens Act. The Court claimed that it would meet the gap in protection left by Germanyâs exclusion of non-state agents of persecution and which Germany promised would be applied in this case ö despite the fact that no rejected asylum seeker had been awarded such status previously.

However, for the first time, an international human rights court confirmed that the Dublin Convention couldn't be automatically applied to deport asylum seekers to countries from which they could then be sent back to where they came from.

ãThe Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution · The Court notes the comments of the UNHCR that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered. The English courts themselves have shown a similar concern in reviewing the decisions of the Secretary of State concerning the removal of asylum-seekers to allegedly safe third countries.ä

 

Dublin Convention is a 1990 European agreement, which allows European Union countries to send back asylum seekers to countries where they first sought asylum.

Common European asylum policy with its rules of internal re-admission, based on exclusive interpretation of Geneva Convention, leave asylum seekers without a chance to have their cases heard. Instead, they are being removed to the first country of asylum from where they are automatically sent back to their persecutors. These asylum seekers are usually detained at the entry and often kept in detention until removed. They hardly have any contact with the community and their stories never get heard.

This ruling is therefore an important contribution to thee campaign to protect political asylum as a legal concept in the climate of dangerous erosion of basic refugee rights across Europe, a concept that was introduced in the aftermath of the Holocaust in order to protect the rights of people fleeing persecution.

The European Court of Human Rights (Third Section), sitting on 7 March 2000. Application no. 43844/98 by T.I. against the United Kingdom. Web site: http://www.echr.coe.int/

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