Reference to European Court - Request for preliminary ruling concerning interpretation of EU law

NS v Secretary of State for the Home Department and other cases: Court of Justice of the European Union (Grand Chamber): Judges Skouris (president), Tizzano, Cunha Rodrigues, Lenaerts, Bonichot, Malenosvský, Lõhmus (presidents of chambers), Rosas (rapporteur), Ilešic, Von Danwitz, Arabadjiev, Toader, Kasel: 21 December 2011

There were two references for ­preliminary rulings concerning the interpretation: first, of article 3(2) of Council Regulation (EC) 343/2003 (establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national) (the regulation); second, the Charter of Fundamental Rights of the European Union, including the rights set out in articles 1, 4, 18, 19(2) and 47 (the charter); and, third, protocol (No. 30) on the application of the charter to Poland and to the UK.

The references were made in proceedings between asylum seekers who were to be returned to Greece pursuant to the regulation and, respectively, the UK and Irish authorities.

The court ruled: The decision adopted by a member state on the basis of article 3(2) of the regulation establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national, whether to examine an asylum application which was not its responsibility according to the criteria laid down in chapter III of that regulation, implemented EU law for the purposes of article 6 of the Treaty of the European Union and/or article 51 of the Charter of Fundamental Rights of the European Union.

EU law precluded the application of a conclusive presumption that the member state which article 3(1) of the regulation indicated as responsible observed the fundamental rights of the EU. Article 4 of the Charter of Fundamental Rights of the European Union had not to be interpreted as meaning that the member states, including the national courts, might not transfer an asylum seeker to the ‘member state responsible’ within the meaning of the regulation where they could not be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amounted to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.

Subject to the right itself to examine the application referred to in article 3(2) of the regulation, the finding that it was impossible to transfer an applicant to another member state, where that state was identified as the member state responsible in accordance with the criteria set out in chapter III of that regulation, entailed that the member state which should carry out that transfer must continue to examine the criteria set out in that chapter to establish whether one of the following criteria enables another member state to be identified as responsible for the examination of the asylum application.

The member state in which the asylum seeker was present had to ensure that it did not worsen a situation where the fundamental rights of that applicant had been infringed by using a procedure for determining the member state responsible which took an unreasonable length of time. If necessary, the first mentioned member state had to itself examine the application in accordance with the procedure laid down in article 3(2) of the regulation. Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union did not lead to a different answer (see [123] of the judgment).