By JAMIE SMYTH
THE HIGH Court has referred an asylum appeals case to Europe’s highest court that will test the legality of transferring asylum seekers between EU member states which have different standards of protection for refugees.
In a ruling that may have far-reaching consequences, Ms Justice Maureen Clark said yesterday she would make a preliminary reference to the European Court of Justice (ECJ) in an appeal by five asylum seekers against a transfer order to Greece made by the Minister for Justice. The asylum seekers from Afghanistan, Iran and Algeria were issued with transfer orders under the Dublin II regulation – an EU law that stipulates asylum applications should be decided in the EU state where a person first arrives.
The asylum seekers do not dispute that they entered the EU through Greece. However, they allege their human rights would be infringed if they were returned to Greece as it does not operate a fair or humane asylum system.
There are up to 40 appeals pending in the High Court against transfer orders to Greece made under the Dublin II regulation.
A spokeswoman for the Department of Justice said yesterday it will take no action in these cases until a decision or ruling is made by the ECJ and the Irish courts.
The decision to refer the case to the ECJ means the appeal could set a legal precedent, which would affect potentially thousands of transfers to Greece across the EU.
The UNHCR, Amnesty International and the AIRE (Advice on Individual rights in Europe, a London-based NGO), were appointed amicus curiae (friend of the court) in the High Court case. All three organisations are critical of the Greek asylum system.
Sophie Magennis, head of the UNHCR Ireland office, said the agency was aware of divergent practice across the EU in relation to the transfer of asylum seekers to Greece and it would be helpful to have clarity on the issue.
The critical legal point, which is expected to be at the centre of the ECJ deliberations, relates to the discretion that each EU member state has to determine whether to send an asylum seeker back under the Dublin II regulation. The UNHCR argues EU states must consider if a person’s rights would be breached if they were sent back to a state that does not have a functioning asylum system.
However, the Government and several other EU states – who are likely to join the ECJ case – would argue the discretion not to issue transfer orders should be severely limited. The British Court of Appeal has also referred a similar case to the ECJ.
By Tom Whitehead
Tens of thousands of failed asylum seekers given right to work
Tens of thousands of failed asylum seekers are to be allowed to work in the UK after the Government lost a legal battle over EU rules.
The Supreme Court dismissed a Home Office challenge to an EU directive that allows asylum seekers to look for work if their claim has not been processed within a year.
The dispute centred on the rights of asylum seekers who have already had one application for shelter rejected but then submit a fresh claim – individuals who the Home Office argued were not covered by the directive and were therefore not entitled to seek employment.
But the Supreme Court ruled they are eligible, paving the way for at least 45,000 failed asylum seekers in Britain to start looking for jobs.
Ministers fear the decision will encourage more and more failed asylum seekers to submit “wholly unmeritorious claims” in a bid to stay longer in the UK and earn money.
It also comes at a time when millions of Britons are out of work and jobs are in short supply.
Asylum seekers are not allowed to look for work when they initially submit claims to the UK.
But under the European Council’s Reception Directive, which the UK Government signed up to the after it was introduced in 2003, those same applicants are entitled to work if the claim is still outstanding after 12 months.
Yesterday, Supreme Justices, the country’s most senior judges, concluded the same rules apply to any asylum seeker who has already had at least one claim rejected but has submitted a fresh one.
New asylum claims are usually submitted based on further evidence such as a change in conditions in the applicant’s home country or their personal circumstances. If the second claim is eventually rejected then the applicant loses their right to work and will face removal.
But lawyers for the Home Secretary warned the Supreme Court that “if the Reception Directive is held to apply to subsequent applications for asylum, the potential for abuse of the system would be greatly increased”.
“Wholly unmeritorious claims would be put forward by applicants who saw the opportunity of not only delaying their removal but also of gaining access to the benefits that the Directive confers.”
Sir Andrew Green, chairman of Migrationwatch, said: “Yet again a European Directive is having unintended and thoroughly unwelcome consequences.