Reflections on Reading Tarakhel

Abstract

Tarakhel v Switzerland is the latest Grand Chamber ruling of the European Court of Human Rights (ECtHR) on Dublin returns. Its contribution to human rights protection is to reassert well-established principles, quite minimal ones the authors would suggest, which prevent states from returning asylum-seekers where there are substantial grounds to believe there is a real risk of inhuman and degrading treatment. The contribution of the case is to reject erroneous approaches which developed under both ECHR and EU law, in particular in the wake of the NS/ME3 judgment of the Court of Justice of the European Union (CJEU) as to the significance of the reference to ‘systemic deficiencies’, and what sorts of evidence was required to rebut the presumption of safety accorded to Dublin states. The Tarakhel judgment of the ECtHR has put an end to that uncertainty. The ECtHR holds that there is no additional requirement of ‘systemic deficiencies’. Instead, we find reasserted the duty to do ‘thorough and individualised’ assessment, and suspend removal if there are substantial grounds to believe there is a real risk of inhuman and degrading treatment. In addition, we argue for a fundamental rethink of the Dublin Regulation. Moving away from coercion in the allocation of responsibility for refugee claims is imperative.

Keywords: Asylum, Europe, Dublin system, European Court of Human Rights, Switzerland, Italy