Reflections on Reading Tarakhel

(2014) Asiel&Migrantenrecht Nr 10 404-411

8 Pages Posted: 14 Jan 2015  

Cathryn Costello

University of Oxford - Refugee Studies Centre; University of Oxford - Faculty of Law; University of Oxford - Department of International Development

Minos Mouzourakis

University of Oxford - Refugee Studies Centre

Date Written: December 12, 2014

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

Suggested Citation

Costello, Cathryn and Mouzourakis, Minos, Reflections on Reading Tarakhel (December 12, 2014). (2014) Asiel&Migrantenrecht Nr 10 404-411. Available at SSRN: https://ssrn.com/abstract=2548542

Cathryn Costello (Contact Author)

University of Oxford - Refugee Studies Centre ( email )

Oxford Department of International Development
32 Mansfield Road
Oxford, OX13TB
United Kingdom

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of Oxford - Department of International Development ( email )

3 Mansfield Road
Oxford, OX1 3TB
United Kingdom

Minos Mouzourakis

University of Oxford - Refugee Studies Centre ( email )

Oxford Department of International Development
32 Mansfield Road
Oxford, OX13TB
United Kingdom

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