The European Court of Justice has recently delivered its judgment on a preliminary reference case concerning the interpretation of Article 3(2) of Council Regulation (EC) No 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 Charter of Fundamental Rights of the European Union and, Protocol (No 30) on the application of the Charter to Poland and to the United Kingdom. The case concerns interpretation of EU law, consequently the Court of Appeal (England & Wales) (Civil Division) has decided to refer several questions to the Court of Justice for a preliminary ruling. The ECJ has now considered the status of the Charter in the UK.

Case C-411/10 N.S. v Secretary of State for the Home Department concerns an Afghan asylum seeker who came to the UK after travelling through Greece. He was arrested in Greece in September 2008, but did not make an asylum application. Then, he was expelled to Turkey, and travelled from that country to the UK, where he lodged an asylum application. The Dublin Regulation, which came into force in 2003, provides the criteria to establish which Member State is responsible for examining an asylum claim. The main principle is that the Member State, which allows an asylum seeker to enter the EU (whether legally or illegally) is responsible for deciding his claim. In April 2009, the Secretary of State for the Home Department submitted a request to Greece, pursuant to Article 17 of Regulation No 343/2003, to deal with the asylum claim. However, Greece has not responded to that request consequently, pursuant to that provision, it has deemed to accept responsibility for examining the appellant’s claim. In July 2009 the appellant was informed that he would be transferred to Greece, under the Dublin Regulation.

Then, the appellant issued proceedings seeking judicial review of the Secretary of State’s decisions, on the ground that there was a risk that his fundamental rights under European Union law, the ECHR and/or the Geneva Convention would be breached if he were returned to Greece. The High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) examined the application and by judgment of 31 March 2010, Mr Justice Cranston dismissed the application. The appellant appealed to the Court of Appeal (England & Wales) (Civil Division) in April 2010.

Before the Court of Appeal (England & Wales) (Civil Division), the Secretary of State conceded that ‘the fundamental rights set out in the Charter can be relied on as against the United Kingdom and … that the Administrative Court erred in holding otherwise’. According to the Secretary of State, the Charter reiterates that the rights that already formed part of EU law, and does not create any new rights. The Government said that the High Court was wrong to hold that the UK has an opt-out, and so the Charter could not be directly relied upon. The Government accepted therefore that the EU Charter of Fundamental Rights could be directly relied upon in the UK.

According to the Secretary of State, the High Court of Justice was also wrong by finding that she was bound to take into account European Union fundamental rights when exercising discretion under Article 3(2) of the Regulation 343/2003, meaning whether to examine an application for asylum lodged in the UK by a third-country national, even if such examination is not UK’s responsibility. Theresa May believes that this discretionary power does not fall within the scope of European Union law.

Moreover, according to the Secretary of State the obligation to observe European Union fundamental rights does not include the obligation to take into account the evidence that, if the appellant were transferred to Greece, there would be a substantial risk that his fundamental rights under European Union law would be infringed. The Secretary of State believes that Dublin II enables member states to assume that Greece, as well as any EU member state, would comply with its obligations under European Union law.

The ECJ accepted that Article 3(2) of Regulation 343/2003 grants upon Member States a discretionary power. Nevertheless, according to the Court such discretionary power “forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under that regulation” and, consequently, “merely an element of the Common European Asylum System.” Hence, the Court ruled that a Member State which exercises its discretionary power by adopting a decision on the basis of Article 3(2) of Regulation 343/2003 whether to examine an asylum application which is not its responsibility must be considered as implementing European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter. It is important to mention that under Article 51(1) of the Charter, Member States are required to comply with the Charter when implementing EU law.

Then, the Court recalled, “The Common European Asylum System is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted.” The Court pointed out “With regard to the situation in Greece, the parties who have submitted observations to the Court are in agreement that that Member State was, in 2010, the point of entry in the European Union of almost 90% of illegal immigrants, that influx resulting in a disproportionate burden being borne by it compared to other Member States and the inability to cope with the situation in practice.” The ECJ noted that in a situation similar to the present case, the European Court of Human Rights ruled that Belgium should not have expelled an asylum seeker to Greece under the Dublin regulation. The European Court of Human Rights held Belgium violated article 3 ECHR by having exposed the asylum seeker to the Greek deficient asylum procedure as well as to the Greek living conditions. Moreover, the Court also held Belgium violated Article 13 ECHR for not having provided an effective remedy against the asylum seeker’s expulsion order. The ECJ concluded, therefore, that the ECHR’s judgment shows that at the time of the applicant transfer, there was “a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers” in Greece. In fact, due to such ruling, several Member States, including the UK, have stopped sending asylum seekers back to Greece under the Dublin II mechanism.

The Court considered as rebuttable the Dublin Regulation’s presumption that asylum seekers will be treated in all EU Member States “in a way which complies with fundamental rights”. Consequently, the Court ruled, “that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.” The ECJ held that in order to ensure compliance with the fundamental rights of asylum seekers, the member states “may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount 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 Article 4 of the Charter.” Consequently, if a Member States transfers an asylum seeker to the Member State responsible within the meaning of Regulation 343/2003 in these conditions, there would be an infringement of Article 4 of the Charter.

This ruling would have, therefore, serious impact on the UK and other member states. Greece is one of main points of entrance of asylum seekers and illegal immigrants, but under this ruling, the UK cannot deport asylum seekers to Greece, as provided in the Dublin Regulation.

The UK has a Protocol on the application of the Charter (Protocol 30), which states that the UK courts or the Court of Justice may not declare UK law incompatible with the Charter. However, the Protocol is not an opt out from the Charter, the preamble’s states that the protocol “(…) is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally.” In fact, the then Foreign Secretary, David Miliband, have explained to European Scrutiny Committee is not an opt out from the Charter but "it is a statement of how the Charter provisions will apply in the UK."

Obviously, the Court has jurisdiction to hear actions brought by the Commission against a Member State for infringing the Charter when implementing EU law, moreover, by the preliminary reference procedures issues such as the compatibility of a Member State act while implementing EU law with the Charter or compatibility of EU legislation with the Charter will be referred to the ECJ, as the present case. There are several cases where the ECJ interpreted and assessed the validity of EU law according to the Charter. The Protocol does not prevent the UK Courts of being bound by the ECJ interpretations of Union law measures based on the Charter. The UK is bound by the Court of Justice rulings where it interprets Union law as implemented in other Member States in conditions where the same law is also implemented in the UK.

The Preamble of the Charter reads that the Charter “reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;” Hence, “other obligations” as above-mentioned include fundamental rights recognised by the Court of Justice as general principles of EU law. Thus, if the ECJ recognizes a fundamental right as a general principle of EU law, the UK is legally bound by it, irrespective of the Charter and the protocol 30.

Moreover, Article 1 (2) of the Protocol states “In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.” Yet, several of the rights in Title IV (Solidarity Title) have already been recognised as general principles of EU law, thus they can be enforced in national courts.

The Court of Appeal asked the ECJ “whether, in so far as the preceding questions arise in respect of the obligations of the United Kingdom, the answers to the second to sixth questions should be qualified in any respect so as to take account of Protocol (No 30).” The Court noted that the Secretary of State no longer maintained the position that the provisions of the Charter do not apply in the UK. According to the Court, Article 1(1) of the Protocol which provides that the Charter is not to extend the ability of the ECJ or any court of the UK, to find that the laws, regulations administrative provisions, practices or action of the UK are inconsistent with the Charter’s fundamental rights, freedoms and principles, “does not call into question the applicability of the Charter in the United Kingdom”. The Court held “Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.” Hence, the Court ruled that its answers “do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom.”

As Bill Cash said “The Charter has the potential of acting as a restraint on the ability of any Government to make the necessary changes, for instances to our law on small and medium-sized business.” Moreover, he stressed, “The government might attempt to produce legislation, which might then be struck down because of the charter.” The pledge in the Conservative party manifesto to secure a "full opt-out" from the Charter has been abandoned, as the Coalition Agreement not even mentions the Charter. The Charter impinge on UK sovereignty, the UK needs, therefore, a complete opt-out from it.