In Adan and Aitseguer, the U.K. Court of Appeal and the U.K. House of Lords have explicitly rejected the formal approach and opted for the empirical approach. So did the ECtHR in T.I. vs. the U.K. In the Minority Bosnians Decision, the Swedish Government has paid lip-service to the formal approach, but de facto applied the empirical approach, which effectively determined its outcome. Our analysis shows that there are good reasons for these preferences: the formal approach is untenable mainly for reasons of its logical and practical inconsistency. As long as Member States interpret their international obligations towards protection seekers differently, the empirical approach must be regarded as inherent in the prohibitions of refoulement contained in international law and thus a mandatory part of Dublin procedures.

"Babylon takes its abstractions for realities"

1. Introduction

Let us imagine the following: All EU Member States offer an identical asylum procedure, identical protection categories and identical conditions for refugees and other protected categories. The cessation of refugee status and the exclusion from it are handled in a congruent manner across the Union. In short, a Common European Asylum System is in operation.

Now, in this situation, would there be any good reasons to insist on an asylum seekers’ wish to choose her country of refuge? Could there still be any objections against the implementation of the Dublin Convention, which precisely shuns this choice? Certainly, there may be social, cultural, linguistic and other reasons to prefer one Member State over another as a country of asylum, but as long as the Common European Asylum System were to respect the prohibitions of refoulement and other protective norms of international law, it would be hard to convince courts or authorities that removal to another Member State would contravene international law.

Today, the protection offer among Member States varies widely, and will continue to do so for quite some time. Unsurprisingly, these divergences have caused serious problems in the implementation of the Dublin Convention. And, this much is clear, there will not be a Common European Asylum System by the time the successor to the Dublin Convention is adopted (which should be already in 2001, if we are to believe the schedule set by the Amsterdam Treaty and the Vienna Action Plan).

The European legislators knowingly and wilfully disregarded these divergences when launching the Dublin Convention. Now, like a boomerang, the fallacy of this approach reappears in cases where asylum seekers have challenged transfers under the Convention, tasking judges to solve a problem which the its drafters avoided to face. Simply put, the question is when such divergences force a Member State to refrain from removal under the Dublin Convention, making the use of the "sovereignty clause" in article 3 (4) DC mandatory.

This article shall look into the range of approaches which authorities and courts seized with the legality of removal under the Dublin Convention can take. On one end of the spectrum, we have a formal approach. It relies on the fact that all Member States are bound by the 1951 Refugee Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Proponents of the formal approach affirm the legality of removal regardless of factual differences amongst Member States in offering protection. On the other end of the spectrum, we find an empirical approach. Its proponents ask whether a specific asylum seeker would actually be treated in accordance with international law by the responsible Member State. Between these two poles there are, of course, intermediary approaches, amalgamating formal and empirical components. The advantages and disadvantages of both approaches are rather obvious. The formal approach ensures expeditious and efficient removals under Dublin. However, this advantage is bought at the expense of increased risk of refoulement, a practice prohibited inter alia in Article 33 GC. The empirical approach, on the other hand, is sensitive towards the risk of refoulement, but it puts a number of the goals inspiring the Dublin Convention into question.

In the following, points made elsewhere on the many interpretive conundrums which have riddled the implementation of the Dublin Convention shall not be repeated. Instead, the focus will be on manifestations of the formal and empirical approach in recent case law, limited to:

• the Minority Bosnians Case before the Swedish Aliens Appeals Board and the Swedish government,
• the cases of Adan and Aitseguer before the U.K. Court of Appeal and the House of Lords, and
• the case of T.I. vs. the U.K. before the European Court of Human Rights (henceforth ECtHR).

For the purposes of this article, "removing Member State" relates to a Member State which has asked another Member State to assume responsibility for an asylum applicant under the Dublin Convention and received a positive reply from the latter. Physical removal of the claimant has, however, not taken place yet. The Member State which has accepted responsibility and which would receive the asylum applicant upon removal is called the "responsible Member State" in the following. A removal which takes place without material consideration of a claim that the responsible Member State is not safe for the asylum applicant is denoted as "automatic removal".

1. The Formal Approach

 

Probably one of the most paradigmatic Dublin cases in Europe hitherto was that of the so-called "minority Bosnians" who had moved from Germany to Sweden to evade the threat of forcible return by German authorities. Here are the facts of the case.

In October 1997, the Bosnian nationals X, Y and their three children applied for asylum in Sweden. They originate from a Bosnian town situated in the "Republika Srpska", now dominated by Serb inhabitants. The applicants are Muslims, and they had earlier found refuge in Germany, but moved on to Sweden when the German authorities requested them to leave the country by 6 November 1997. The Swedish Immigration Board (henceforth SIB) asked its German counterpart to assume responsibility for the asylum application of the Bosnian family under the Dublin Convention. On 27 November 1997, the German authorities declared their willingness to do so, based on art. 5 (1) and (4) DC. Upon this declaration, the SIB ordered the family to leave Sweden without looking into the merits of the claim. The SIB decision was appealed to the Alien Appeals Board (henceforth AAB). On 2 June 1998, the AAB decided to refer the case to the Government, recommending it to dismiss the appeal.

To be sure, the fault line in this case is the availability of a so-called internal flight alternative for Bosnians. Following the German interpretation, such an alternative was available, while the Swedish authorities took the opposite view. However, when pondering the question whether removal to Germany under the Dublin Convention was permissible, the Aliens Appeals Board saw no consequences flowing from these conflicting perceptions:

The fact that, compared to Sweden, Germany may judge the question of an internal flight alternative differently than Sweden, and thus exclude an asylum seeker from the possibility to receive refugee status, alluding to the fact that the person can receive protection in some part of Bosnia-Herzegovina, does not imply that Sweden violates Article 33 of the Geneva Convention by sending the asylum seeker to Germany for a determination of his claim.

As we shall see in the next section, the government agreed with this proposition pro forma, although it did not follow the recommendation to dismiss the appeal. But let us rest with the AAB position for a moment, which is a perfect representation of the formal approach.

It is quite revealing to look deeper into its underlying structure. As the Board considers removal to be permissible under art. 33 GC, it must necessarily consider the German policy to be in compliance with that norm. As a matter of consequence, this means that the Swedish policy of non-return has to be regarded as a very generous one — indeed, it would go well beyond the demands of art. 33 GC. This is an impression which the Swedish authorities certainly does not wish to give. On the contrary — Swedish decision-makers have refrained from minority removals in order to comply with the demands of art. 33 GC, without wishing to exceed those demands. Needless to say, the practice of refugee protection is almost per definition a borderline practice, always very close to the margins set by international law. Typically, governments fear that being perceived as "generous" towards protection seekers may lead to an increased numbers of claims.

Conversely, if the correct interpretation is that the Swedish policy just about complies with the demands of art 33 GC without exceeding them, another problem surfaces. This reading would imply that the Germany return policy falls below the demands of art. 33 GC, and a return of the relevant group from Sweden to Germany would ineluctably amount to chain refoulement. Thus, Sweden would violate the 1951 Refugee Convention when implementing such returns. Quite obviously, this would also represent an undesirable outcome. How did the Swedish government relate to this conundrum of excess and compliance?

 

2. The Empirical Approach
1. The Compromise Approach of the Swedish Government

To be sure, the AAB is normally the second and last instance in asylum procedures. However, if cases relate to large numbers of protection seekers, if they touch upon the relationship between Sweden and a foreign power, or if they cannot be decided on due to a legislative lacuna, the AAB may choose to refer them to the Swedish government for a final decision. The government decision functions as a precedent, guiding future cases. As mentioned above, the Bosnian case was referred to the Swedish government by the AAB, as it touched upon the relationship between Sweden and Germany and related to the application of the Swedish Aliens Act vis-à-vis a group of aliens who invoked mainly the same grounds to support their applications. This referral decision illustrated nicely the politicisation of refugee protection inevitably flowing from safe third country arrangements such as the Dublin Convention. The goal of protection competes with that of diplomatic harmony — a tension which is fairly easy to track in the decision then taken by the government. Given the magnitude of this tension, it is rather unsurprising that it took the Swedish government two years to render a decision in the case.

What, then, did the Swedish government decide on 29 June 2000? The Bosnian claimants were given a permanent residence permit on political-humanitarian grounds. However, the reasoning leading to this result is far from clear-cut and has led to a considerable amount of confusion with decision-makers processing Dublin cases. This is not precisely what a precedent is meant to do.

Let us now track the meandering arguments in the government decision. First, the government underscores that the application filed by the family could be dealt with by German authorities under the Dublin Convention. However, the government concedes that protection seekers from Bosnia-Herzegovina are normally not granted protection in Germany. The claimant family apparently does not fall under the exceptional categories German authorities exempt from return. In this regard, the Swedish government seems to accept the account delivered by the claimant family.

Second, the government involves its earlier decisions with regard to protection seekers from Bosnia-Hercegovina. In a 1996 precedent, the government acknowledged that the conditions in Bosnia-Herzegovina had improved lately, and that a peace process was going on in the country. Nonetheless, it considered that persons originating from an area where they would form part of a minority group upon return had a continued need of protection outside Bosnia-Herzegovina. In a precedent from 1999, the government took a more restrictive position, when arguing that return to minority areas was possible in cases where there was a substantial degree of minority representation and where an apparent normalisation process existed. The government underscored that the specific circumstances in the single case and the relevant area must be taken into account. However, the claimants in the 1999 cases did not originate from areas fulfilling the named requirements, why the government regarded them to be refugees according to the domestic equivalent of the Convention refugee definition. To wit, the 1996 and 1999 precedents did not involve issues related to the Dublin Convention or other safe third countries.

In a third step, the government assesses the current development in Bosnia-Hercegovina, stating that the preconditions for minority return have been improving successively. Simultaneously, it its acknowledged that progress is slower in urban areas, that discriminatory treatment still exists, and that comprehensive measures are needed to secure a sustainable return to them.

Fourth, the government focuses on the principle of internal flight alternative, from which it claims to have derogated in the precedents related to above. The reason for this derogation was the government’s wish to promote the implementation of the Dayton Agreement and to counter the effects of ethnic cleansing and population transfers. The government also refers to UNHCR position paper of May 1999, which underscores that the presence of internally displaced persons in areas other than their home areas should not be accepted, as long as it is not voluntary. UNHCR takes an analogous position with regard to refugees who are present outside Bosnia-Herzegovina.

Against this backdrop, the government develops its core reasoning in a sixth step. It suggests that Bosnia-Herzegovina should be regarded as one country, seen strictly from the perspective of refugee law. All its citizens can find refuge in large parts of the country. The reason why Sweden nevertheless has chosen not to apply the principle of an internal flight alternative is the importance of promoting the implementation of the Dayton Agreement:

The government is of the opinion that Swedish practice with regard to asylum seekers from Bosnia-Herzegovina should be contrived, as far as possible, in the spirit of the Dayton Agreement, entailing that the affected persons are not returned against their will, and that they have an option to repatriate to the places from which they originated.

Now, as Dayton has been identified as the core of the government’s reasoning, the rest follows more or less mechanically. Since it regards the case as falling outside the ambit of refugee law stricto sensu, the government denies that the claimant family is to be qualified as refugees or persons otherwise in need of protection under the Swedish Aliens Act. Rather, it makes use of a residual provision, allowing the authorities to grant a residence permit for political-humanitarian grounds at their discretion. The difference between rights-based and discretion-based protection may appear to be of little relevance for the persons affected, given that the residence permit granted was a permanent one. However, the choice of the discretionary category of "political-humanitarian grounds" further emphasises the exceptional character of the decision. At the same time, the government underscores that there may be reasons to grant refugee status or another rights-based form of protection in single cases. Thus, peeling the onion, it turns out that the exception has an exception, and that decision-makers have to shuttle back and forth between a Dayton-based reasoning and one drawing on refugee law.

We may intersperse a few words here. The reader will observe the decisive fissure in the government’s reasoning at this stage. Following the government, there are no individual protection-related grounds for abstaining from removal to Bosnia-Herzegovina. If we believe the government, the reach of refugee law has come to an end here, and forcible removal would not amount to refoulement. However, apart from the protective telos of refugee law, there is another telos: the effective implementation of the Dayton Agreement. If one believes that Dayton is indeed the key to the pacification of Bosnia-Herzegovina, this telos serves the interests of the Bosnian population as much as those of other European states. And, as we shall see, the government uses the Dayton argument as an exclusive basis for its decision, rather than merging it with arguments of refugee law. There is a logical error in this reasoning. After all, both refugee law and peace agreements of the Dayton type are intended to serve the double purpose of securing individual rights and promoting collective stability and security. But there is a tactical advantage in choosing Dayton as the sole reason for non-removal. Sidelining refugee law and highlighting Dayton allows for a great margin of discretion in future cases. This move makes the question of removal contingent on political rather than legal considerations.

Now, let us return to the government’s reasoning. In the last step, the government gets back to the initial question — should the claimant family be removed to Germany under the Dublin Convention? First, it confirms that the formal reasoning developed by the AAB, which proposed removal, is correct "strictly from the perspective of refugee law". Thus, removal under Dublin would be perfectly legal. Again, the government switches over from the refugee law telos to the Dayton telos and reiterates that UNHCR regards forcible removal to other places than a person’s home compromise the implementation of the Dayton Agreement. As the claimant family would be allowed to stay on political-humanitarian grounds in Sweden, it should not be returned to Germany. Formulating a general rule, the government contends that use should be made of art. 3 (4) DC,

to determine an asylum claim from a citizen of Bosnia-Herzegovina, who has been present in Germany before her arrival in Sweden, in cases where, according to practice, a residence permit is granted in Sweden, while it is denied in Germany.

Per consequence, the claimant family is formally granted a permanent residence permit on political humanitarian grounds according to chapter 2, section 4, 1 para. (5) of the Swedish Aliens Act.

There is some beauty in the circumvention manoeuvre thus performed by the government — as a rhetorical effort, the design of its reasoning commands our appreciation. But flawed it remains, as it spawns new inconsistencies, while not even doing away with the old ones in the AAB decision.

Let us retrace its beauty first. In reality, the Swedish government refrains from implementing Dublin, which reflects its scepticism towards the German removal practices. Simultaneously, by attempting to lift out the Bosnian cases from the ambit of refugee law and by refitting it into the Dayton context, the government diverts our attention from the ugly reproach of refoulement, which its usage of art. 3 (4) DC could be taken to imply. For Sweden and Germany, Dayton is not about law, it is about discretion. Neither of the two countries are signatories, and, consequentially, neither of them are legally bound to implement Dayton in any specific manner. The Dayton approach seemingly allows for maintaining Dublin intact and appeases the Germans, who would be quite unhappy to be qualified as lawbreakers by another Member State.

The flaw lies in the fact that the government decision effectuates quite the opposite of what its drafters intended. In the final analysis, it annihilates the efficiency of the Dublin Convention. This conclusion is supported by two arguments — one of a material, and the other of a procedural character.

The first one relates to the question of what to do with Bosnian asylum seekers fulfilling the criteria for refugee status or a complementary form of protection under Swedish law. We recall that the government explicitly spelt out that there may be Bosnian asylum seekers who qualify under one of these categories. If discretionary considerations related to the Dayton agreement entail non-return under the Dublin Convention and the usage of its art. 3 (4), the same must a fortiori apply to legal considerations under the 1951 Refugee Convention.

Recalling the rule which the government established in the Minority Bosnians Decision, and which we quoted above, such persons shall not be returned to another Member State under the Dublin Convention, if the latter does not grant them a residence permit. Here, the argumentative hide-and-seek has come to an end, and the government’s position surfaces very clearly. The formal AAB approach militating for return cannot be reconciled with the logic inspiring the government’s reasoning, although the government tries to make us believe the opposite. What should we set our faith in — the government’s words (i.e. the verbal approval of the AAB position) or its deeds (i.e. non-removal and the usage of art. 3 (4) DC)? Quite clearly, the approving reference to the AAB decision is not decisive for the outcome of the case, and must be taken to represent an obiter dictum. Thus, it is the deeds, and not the words which count. The Swedish government has set a precedent to the effect that the 1951 Refugee Convention and other protective instruments shall override the allocation mechanism set out in the Dublin Convention in cases of conflict.

The second line of argument is a procedural one, and it reinforces the first one. Exactly how did the government go about determining the claim in its Minority Bosnians Decision? Most strikingly, it embarked on an empirical assessment of the claimants’ prospects for protection, rather than relying on a formal one (which was precisely what the AAB suggested). To be sure, the government assessed the family’s safety and status in three countries: Bosnia-Herzegovina, Germany and Sweden.

How are the Swedish authorities to apply the precedent of the Minority Bosnians Decision? Let us take a second look at its core phrase. The government opted for non-removal of Bosnians coming via Germany "in cases where, according to practice, a residence permit is granted in Sweden, while it is denied in Germany". How is a decision-maker to know about these differences in the granting of residence permits? Very clearly, by comparing the German and the Swedish practice relevant for the person in question. This, in turn, presupposes a detailed assessment of the claimant’s protection prospects in Germany — or, for that matter, in any other Member State which would be responsible for processing an asylum claim under the Dublin Convention. Hence, it must be concluded that, in future cases involving the Dublin Convention, decision-makers need to assess the safety and status of any claimant with regard to three countries — the country of origin, the Member State to which the claimant could be returned under the Dublin Convention, and Sweden.

But could it not be argued that the government once and for all assessed safety in Germany, and that the Swedish authorities now can rely on this work and fall back on a formal assessment, exempting the claimant group at stake in the Minority Bosnians Decision from automatic removal under the Dublin Convention, but removing the rest without further material assessment? Furthermore, one might also claim that the Minority Bosnians Decision only exempts Bosnians from automatic removal under the Dublin Convention due to the political support Sweden wishes to give to the implementation of the Dayton agreement, while it has no bearing whatsoever on the removal of other nationalities under the Dublin Convention. Both arguments would be fallacious. As noted earlier, the government warned us that there may be refugees amongst the asylum seekers from Bosnia. If those were returned to Germany, which would in turn remove them to Bosnia-Herzegovina, this would be tantamount to refoulement. How is a decision-maker to know that a person is a refugee or not? By assessing her claim on the merits. The circle is closed, and the Dublin Convention is actually bypassed.

We recall that the Dublin Convention was conceived as a tool which should simplify and shorten asylum procedures. Now we see that the opposite is taking place. Procedures are getting more lengthy and resource-consuming, as an assessment of safety in the responsible Member State must be added to them. Procedures are also involving a duplication of work in different Member States, as the safety in the country of origin will be assessed first in the returning Member State, and, next, in the responsible Member State. In the end, it is the single decision maker who has to compensate for the fallacious presumption of equality between Member States’ protection systems underlying the Dublin Convention. Or, in a worst case scenario, where the decision-maker fails to follow the government’s empirical approach, it is the protection seeker whose interests are sacrificed for the sake of preserving Dublin.

Last, but not least, time is a critical element for understanding the Minority Bosnians Decision. In its essence, the Swedish government’s delay in deciding the case is nothing less but manipulative. It must be assumed that the claimants would have been eligible for refugee status, had the government decided the case diligently upon referral in June 1998. This assumption is supported by the precedent from 1999, where the government granted refugee status to persons whose group would have formed a minority upon return to their place of origin in Bosnia-Herzegovina. Consequently, a speedy decision in 1998 would have compelled the government to tackle the question of obligatory non-removal under art. 3 (4) DC head-on. The choice between Dublin and Geneva would not have been blurred by the Dayton argument. A diligent decision in favour of the claimant must have appeared as very unappealing to the government. First, it would have alienated Germany; second, it would have undermined the future of the Dublin Convention; third, it would have sent signals to Bosnian protection seekers in Germany and elsewhere that Sweden might offer them refuge. A court will ignore such consequences, a government will surely not.

 

2. Adan and Aitseguer before the U.K. Court of Appeal and the House of Lords

 

The tension between decision-making by Courts as opposed to political actors has been elucidated graphically in the U.K. In the landmark cases of Adan and Aitseguer, U.K. courts had to determine whether the U.K. Secretary of State complied with the law when authorising the return of the claimants from the U.K. to Germany and France under the Dublin Convention. Materially, Adan and Aitseguer was about protection from persecution by non-state agents, which U.K. courts considered to fall within the protective scope of the 1951 Refugee Convention, while German and French courts did not. Throughout all three instances seized with the cases, Adan and Aitseguer won. Most instructive is the reasoning of the Court of Appeal and the House of Lords, arguing that the legality of Dublin removals must be measured against the international interpretation of the 1951 Refugee Convention and rejecting the idea that there is a "margin of discretion" when interpreting said instrument.

After adducing examples from the case law of the ECJ and the ECtHR and underscoring the relevance of the canon of interpretation enshrined in arts. 31 and 32 of the 1969 Vienna Treaty Convention, Lord Steyn concluded:

It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in articles 31 and 32 and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: article 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court of Justice is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.

In the same spirit, the House of Lords also expressly rejected the existence of a "range of permissible meanings" in interpreting the 1951 Refugee Convention, which earlier dicta of the Court of Appeal in Kerrouche and Iyadurai supported. This amounts to a complete defeat of the formal position in U.K. case law. As we shall see below, this victory was not tolerated by the legislator.

Inter alia, the government’s counsel had argued that a rejection of the government’s appeals would present the U.K. Secretary of State with an impossible assessment task in the future. This was his argument:

For the Secretary of State to be required to assess the details of the judgments of the appellate courts of other EU States, and form a judgment on whether they are consistent with the 1951 Convention, with that judgment subject to reassessment by the courts of this country by way of judicial review, would impose a complex and time-consuming task that is inconsistent with, and would substantially frustrate, the objective of the 1996 Act to implement the principles in the Dublin Convention and speedily return asylum seekers to other EU States for the merits of their claims to be considered.

After laconically stating that "[t]he sky will not fall in", Lord Steyn explained that the tasks of the Secretary of State would even be simplified in comparison to a model allowing a permissible range of interpretations: "He need only consider and apply the true interpretation of the Refugee Convention rather than a multiplicity of potential issues about the legitimacy of particular interpretations by other countries". However, Lord Steyn chose to disregard the fact that the Secretary of State — and all other decision-makers in a comparable situation — must embark on an empirical assessment of how the Convention would actually be implemented in each single case by the Member State responsible under the Dublin Convention. In Adan and Aitseguer, both appeal courts devoted a fair amount of work to this issue, suggesting that, at least, parts of the sky would indeed fall in. Implementing Dublin in a manner respectful to obligations under international refugee and human rights law is time-consuming, which casts doubts on the efficiency of the Dublin system at large.

At the end of the day, the House of Lords upheld the judgment of the Court of Appeal and considered the removal of the claimants to Germany and France respectively to contravene the law, as the German and French interpretation of Articles 1 (A) (2) GC was too narrow with regard to persecution by non-state agents.

Adan and Aitseguer is probably the most comprehensively argued example of the empirical approach to date. To determine the legality of removal, the Court of Appeal and the House of Lords took a thorough look into German and French law and practice, in order to assess its legality against the applicable international standard — the 1951 Refugee Convention, interpreted in accordance with the 1969 Vienna Treaty Convention. In fact, the approach of both U.K. courts must be deemed to be more progressive than that of the ECtHR (whose pertinent case law we shall scrutinise below). Rather than looking at the question of non-refoulement only, the U.K. judges focused on the claimant’s inclusion under the refugee definition in the responsible Member State. The difference is obvious, and its importance should not be underestimated. While non-refoulement is a minimalist protection offer, exposing its beneficiary to great insecurity with regard to e.g. labour, housing and education, refugee status offers much greater predictability and stability. The holistic approach of the U.K. Courts is respectful of the degree of harmonisation already attained through the 1951 Refugee Convention, and should be endorsed as a model for the future scrutiny of removals under the Dublin Convention.

It is all the more lamentable that the U.K. government dissociated itself from the carefully considered and legally most sophisticated approach developed by its Courts through a legislative countermove in 1999. It successfully proposed an amendment to the U.K. Immigration and Asylum Act, stating that a Member State of the European Union with which there are standing arrangements, such as the Dublin Convention, for determining which state is responsible for considering applications for asylum, is to be regarded as a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention. Still, the asylum seeker has a right of appeal under the 1998 Human Rights Act. However, the U.K. Secretary of State can carry out the removal before the right of appeal is exercised, if he certifies that the allegation that the removal would breach the asylum seeker's human rights is manifestly unfounded. In the absence of suspensive effect, the value of appeal approximates nil. The amendment must be seen as a backlash of formalism, disdaining the apparent need for continued judicial review, documented by Adan and Aitseguer.

 

3. The ECtHR: T.I. vs. the U.K.

 

A further voice has enriched the European debate on the proper implementation of the Dublin Convention. In T.I. vs the U.K., the Third Section of the ECtHR had to consider a problem rather similar to that at stake in the Adan and Aitseguer cases. Here, the applicant challenged a decision by U.K. authorities to remove him to Germany under the Dublin Convention, claiming that it violated Articles 2, 3, 8 and 13 ECHR. Different from Adan and Aitseguer, it was the ECHR rather than the 1951 Refugee Convention, against which removal needed to be tested.

Notably, the ECtHR considered T.I.’s claim to be manifestly ill-founded and therefore rejected it as inadmissible. At first sight, this outcome may be considered a victory for the U.K. as the respondent state, and for Germany, which disputed the existence of a "protection gap" before the Court. However, a closer look reveals that the ECtHR endorsed the empirical approach, and signalled its preparedness to scrutinise future claims related to the Dublin Convention and protection discrepancies. Thus, the governments’ in casu victory was bought at a dear price.

To underpin this analysis, a detailed look into the judgment is called for. T. I., a Sri Lankan national, had sought asylum in Germany in 1996, claiming that he risked ill-treatment by the LTTE, a Tamil terrorist organisation, or by forces of the Sri Lankan government. His claim was rejected in the first instance, and T.I. appealed this decision. The Bavarian Administrative Court turned down his appeal mainly for two reasons. First, the claim was regarded as lacking credibility, and, second, it would not fall under the protective scope of German law, as the threat of persecution was not attributable to a state organisation. After this decision, the claimant moved on to the U.K. and filed an asylum claim there. The U.K. government subsequently requested the German authorities to accept responsibility for determining the asylum application under the Dublin Convention, which the latter agreed to do. The U.K. Secretary of State decided to remove the claimant to Germany and refused to examine the substance of his claim. A first application for judicial review was turned down, but the U.K. Court of Appeal granted a renewed application in April 1998. However the Court affirmed the legality of the U.K. Secretary of State’s decision, and pointed out that Sri Lankan asylum seekers actually enjoyed higher recognition rates in Germany than in the U.K. After further unsuccessful steps intended to secure a material determination of the case in the U.K., the applicant turned to the ECtHR.

Unsurprisingly, the bulk of argumentation related to the alleged violation of art. 3 ECHR. The U.K. Government refuted this allegation on principled grounds, suggesting inter alia that

this Court [the ECtHR, GN] should be slow to find that the removal of a person from one Contracting State to another would infringe Article 3 of the Convention, as in this case, the applicant would be protected by the rule of law in Germany and would have recourse, if any problems arose, to this Court, including the possibility of applying for a Rule 39 indication to suspend his deportation. It would be wrong in principle for the United Kingdom to have to take on a policing function of assessing whether another Contracting State such as Germany was complying with the Convention. It would also undermine the effective working of the Dublin Convention, which was brought into operation to allocate in a fair and efficient manner State responsibility within Europe for considering asylum claims.

This line of argument consists of two parts. First, it embraces what we have identified as the formal approach above. Second, its adds a procedural argument on the availability of remedies — including an application to the ECtHR — after removal to Germany.

To be sure, the ECtHR expressly and vociferously rejected the government’s formal approach:

The 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 […].

Thus, the ECtHR has reserved the right to scrutinise removal decisions under the Dublin Convention with a view to their legality under the ECHR.

In the next step, the Court had to take a stand on whether or not the claimant would actually run the risk of being treated contrary to art. 3 ECHR once removed to Germany. Fully in line with what we have described as the empirical approach above, the ECtHR went into a scrutiny of, first, the direct risk of ill-treatment in Sri Lanka, and, second, the indirect risk of ill-treatment upon return to Germany. Mutatis mutandis, this is exactly what the Swedish government did in the Minority Bosnians Decision, and what the U.K. courts did in Adan and Aitseguer. As to the first step, the ECtHR considered that "the material presented by the applicant at this stage gives rise to concern as to the risks faced by the applicant, should he be returned to Sri Lanka — both from the LTTE if he returned to his family in Jaffna, and from government forces on suspicion of previous involvement with LTTE".

The second step, however, was less straightforward. Here, a standing dispute between the ECtHR and the German Federal Administrative Court was moving into focus again, with the ECtHR claiming that art. 3 ECHR could protect from persecution by non-state agents, while the German Federal Administrative Court maintained that only threats by state or state-like authorities were covered by the said provision. The nearest equivalent of the prohibition of refoulement inherent in art. 3 ECHR is to be found in Section 53 (4) of the German Aliens Act. In construing this provision, the German Federal Administrative Court found that it did not cover the threat of persecution by non-state agents and expressly refuted the interpretation of the ECtHR expounded inter alia in Ahmed vs. Austria. This open disagreement between both Courts would militate for scepticism as to the claimant’s chances to be protected in Germany. However, in its comments submitted to the ECtHR in T.I. vs. the U.K., the German government underscored that protection for threats emanating from non-state agents may be offered under section 53 (6) of the German Aliens Act, which grants the authorities discretion to suspend deportation in case of a substantial danger to an alien’s life, personal integrity or liberty. The claimant pointed out that such protection was discretionary, but the ECtHR accepted the German government’s assurances that this provision indeed entails an obligation to protect, noting "that the apparent gap in protection resulting from the German approach to non-State agent risk is met, to at least some extent, by the application by German authorities of section 53 (6)".

Finally, the ECtHR chose to put its trust in the assurances of the German government: "It is true that the Government have not provided any example of section 53 (6) being applied to a failed asylum seeker in a second asylum procedure. [...] While it may be that on any re-examination of the applicant’s case the German authorities might still reject it, this is largely a matter of speculation and conjecture." The ECtHR was simply not convinced that the possibility of a removal to Sri Lanka contravening art. 3 ECHR was sufficiently concrete or determinate, which ultimately led to the rejection of the claim. While the ECtHR makes no further mention of the U.K. government’s second argument on the availability of remedies in Germany, including a Rule 39 indication of the ECtHR, it is very possible that this aspect also militated against the claimant.

From an observer’s perspective, it is perhaps understandable that the ECtHR does not wish to aggravate existing tensions between German case law and its own. Furthermore, the ECtHR has in fact a second chance to prevent a violation of art. 3 ECHR: if the German authorities indeed turn down T.I.’s renewed application, he could turn to the ECtHR again. Nonetheless, from the point of view of principles, two aspects give rise to concern.

First, it is worrying that the ECtHR chose to disregard the question of status. "It is not relevant for the purposes of this application that any permission to remain granted pursuant to section 53 (6) would initially be for a three month period and subject to review by the authorities." Quite correctly, art. 3 ECHR alone does not confer a comprehensive "status" on a protection seeker, in stark contrast to refugee determination under the 1951 Refugee Convention. In addition, the existing case law related to art. 3 ECHR and the risk of refoulement has not been taking the long-term protection perspective into account. However, it is conceivable that the protracted existential insecurity entailed by such a precarious position may contravene the prohibition of inhuman treatment in article 3 ECHR. In the long run, the question of status must be resolved. If this is not done in an EC act regulating complementary forms of protection, it may be appropriate that the ECtHR be seized with a relevant case.

Second, it is somehow discomforting that the ECtHR seems to endorse de facto a situation by which the German organs interpret their obligations under art. 3 ECHR in a way which is at loggerheads with the ECtHR’s own constant case-law. Its main focus of concern should be section 53 (4) of the Aliens Act (which enshrines the equivalent of the Soering doctrine) and not its section 53 (6) (the wording of which is not related to the ECHR). The tolerance thus displayed by the ECtHR implies nothing less than the granting of a "margin of interpretation" to Contracting States when construing art. 3 ECHR. This would be at odds with the wording of the provision and the structure of Section I of the ECHR. But again, the ECtHR still has a chance to correct this perhaps faulty impression of its thinking in future case law.

These problems notwithstanding, the ECtHR judgment remains a prime precedent affirming the empirical approach and complementing well-argued decisions by domestic fora with the voice of a regional body.

 

3. Conclusions

As long as the protection systems of Member States speak different languages, the Dublin Convention remains a Babylonian tower. In a number of recent dicta, the flawed nature of the Convention’s foundational idea of equality among Member States has become apparent. Based on our analysis of the Minority Bosnians Decision, Adan and Aitseguer, and T.I. vs. the U.K., we may now present three conclusions.

1. The formal approach is untenable. It either dilutes international treaty obligations by implying that one and the same concept can have a multitude of acceptable interpretations, or it falls victim to the conundrum of excess and compliance described earlier in this article.
2. The U.K. Court of Appeal, the U.K. House of Lords and the ECtHR have explicitly rejected the formal approach and opted for the empirical approach in resolving the cases analysed in this text. The Swedish Government has paid lip-service to the formal approach, but de facto applied the empirical approach, which effectively determined the outcome in the Minority Bosnians Decision.
3. As long as Member States interpret their international obligations towards protection seekers differently, the empirical approach must be regarded as inherent in the prohibitions of refoulement contained in international law. Thus, it is concurrently a mandatory part of Dublin procedures.

What does the empirical approach entail for the decision-maker? Assessing whether or not removal under the Dublin Convention is legal under international law is a complex operation, which comprises three steps.

1. The first is an assessment of the direct risk for the claimant in the country of origin. With the term "direct risk", we mean the risk that the claimant is persecuted or otherwise exposed to a human rights violation in the country of origin. This implies nothing less than a full-fledged material assessment on part of the decision-maker. In case the claimant is found to fall under the scope of international norms prohibiting refoulement, the decision-maker will proceed to the second step.
2. This step entails an assessment of the indirect risk for the claimant in the responsible Member State. The term "indirect risk" denotes the risk that the responsible Member State sends back the claimant to her country of origin. The second step forces the decision-maker to analyse the law and practice of the responsible Member State with regard to the parameters of the claimant’s case. Where such an indirect risk exists, the decision-maker will proceed to the third and last step.
3. In that step, the international meaning of relevant prohibitions of refoulement has to be established, and the indirect risk can be measured against its benchmarks. To establish the international meaning of a norm, the decision-maker has to construe it in accordance with arts. 31 to 33 of the Vienna Treaty Convention. If removal by the responsible Member State cannot be said to violate the international meaning of relevant prohibitions of refoulement, removal to that Member State under the Dublin Convention is legal. If the opposite is true, removal would entail a violation of international law by the removing Member State. In that case, the latter state is not only allowed, but also obliged to make use of art. 3 (4) DC and refrain from removal.

Finally, an economical consideration may be in order. As long as the protection offer remains unharmonised among Member States, and as long as single Member States endorse interpretations of protective instruments which fall short of an "international interpretation", the Dublin Convention augments the workload of decision-makers. Rather than burdening already overloaded decision-makers with the three steps described above, Member States should abolish Dublin and process any claim filed with them in substance, according refugee status or other forms of protection to those found to be eligible. Implemented in accordance with prohibitions of refoulement in international law, the Dublin Convention is a mere waste of procedural resources.

Presumptions are intended to reduce complexity. Grossly counterfactual presumptions do the opposite. The Dublin Convention rests on one of the latter kind.