EUROPE’S top court this morning threw a spanner in the works of Brussels attempts to resolve the migrant crisis by ruling that member states have the power to deport asylum seekers back to the first EU country they entered.
In an eagerly awaited ruling judges at the ECJ confirmed that Austria and Slovenia can send migrants back to Croatia to have their asylum cases determined there instead.
The case came before the court after Croatian authorities infuriated their neighbours at the height of the 2015 crisis by laying on state-funded transport to help migrants cross their territory.
But Austria and Slovenia, where some of the asylum seekers ended up, brought legal proceedings saying that Croatia had a duty to decide on asylum cases, and not simply bus people northwards, under the Dublin Convention.
Today’s ruling could have a significant impact on the future of the EU’s rapidly sinking migrant quota scheme, under which all countries have been allocated a mandatory number of refugees to take in from Greece and Italy.
Both of the countries bringing the lawsuit have strongly opposed the enforced system and refused to take part, drawing a furious response from Rome which is struggling to cope with huge numbers of new arrivals.
And whilst today’s case was focussed on Croatia, the ruling theoretically strips Italy and Greece of similar legal arguments against having to take migrants back under the Dublin system.
The specifics of the case focus on one Syrian national, who applied for asylum in Slovenia, and two Afghan family members who travelled to Austria – all after being helped to transit through Croatia.
In both instances the two countries’ national courts ruled that the trio should be returned to Croatia to apply for asylum there – prompting a legal challenge from the individuals which ended up at the ECJ.
The trio tried to claim that this was in a legal sense tantamount to the Croatian government giving them a visa – but in its ruling today the ECJ judges struck that argument down.
They concluded: “The admission of a national from a non-EU country to the territory of a Member State is not tantamount to the issuing of a visa, even if the admission is explained by exceptional circumstances characterised by a mass influx of displaced people into the EU.
“The crossing of a border in breach of the conditions imposed by the rules applicable in the Member State concerned must necessarily be considered ‘irregular’.
“A Member State which has decided on humanitarian grounds to authorise the entry on its territory of a non-EU national who does not have a visa and is not entitled to waiver of a visa cannot be absolved of that responsibility [to process their asylum claim].”
The court ruled that the fact Croatia was facing an influx of so many people was “not decisive” and that allowing people to enter its territory on humanitarian grounds was its decision, so that “such authorization is valid only in respect of the territory of the Member State concerned, not the territory of the other Member States”.
It concluded: “The Court finds that the term ‘irregular crossing of a border’ also covers the situation in which a Member State admits into its territory non-EU nationals on humanitarian grounds, by way of derogation from the entry conditions generally imposed on non-EU nationals.”
In their conclusions the judges stressed that they were not ruling out a voluntary scheme of relocation, such as the migrant quota scheme, because member states can always choose to carry out asylum checks even if not legally required to do so.
And in a final note, likely to be interpreted as a fig leaf to Italy and Greece, they warn that no EU member state can deport an asylum seeker to their point of first entry if that country is under too much pressure to offer proper care and accommodation.
They state: “An applicant for international protection must not be transferred to the Member State responsible if, following the arrival of an unusually large number of non-EU nationals seeking international protection, there is a genuine risk that the person concerned may suffer inhuman or degrading treatment if transferred.”