EU Referendum

Immigration: Strasbourg strikes down returns to Italy


000a DW-007 ECHR.jpg

Golajan Tarakhel is an Afghan national, born in 1971. On an unspecified date, he left Afghanistan for Pakistan, where he met and married Maryam Habibi, born in 1981. The couple subsequently moved to Iran, where they lived for fifteen years. On an unspecified date, they and their five eldest children then left Iran for Turkey and from there took a boat to Italy.

They landed on the coast of Calabria on 16 July 2011 and, after supplying a false identity to the Italian authorities, were registered in the EURODAC database system, fingerprinted and photographed for identification purposes. They were then placed in a reception facility provided by the municipal authorities of Stignano (Reggio Calabria province).

They remained in Stignano until 26 July, by which time their true identity had been established.. On that date they were transferred to the Reception Centre for Asylum Seekers (Centro di Acoglienza per Richiedenti Asilo, "CARA") in Bari, in the Puglia region.

According to the Tarakhels, living conditions in the centre were poor, particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants. Therefore, on 28 July 2011 they left the CARA without permission and went to Austria.

There, on 30 July, they were again registered in the EURODAC system. They lodged an application for asylum which was rejected and, on 1 August, Austria asked Italy to accept their return.

On 17 August, the Italian authorities agreed to accept the Tarakhels, whence the family decamped once more and travelled to Switzerland, where they applied for asylum on 14 November. They were interviewed by officials of the Federal Migration Office (FMO) and claimed that living conditions in Italy were difficult and that it would be impossible for Mr Tarakhel to find work there.

Despite this, the FMO asked the Italians to take the Tarakhels back, and rejected their asylum application, the decision dated 24 January 2012, accompanied by an order for their removal to Italy.

The administrative authority considered that "the difficult living conditions in Italy [did] not render the removal order unenforceable", that "it [was] therefore for the Italian authorities to provide support to the applicants" and that "the Swiss authorities [did] not have competence to take the place of the Italian authorities". There was no specific element, it was held, putting the lives of the Tarakhels at risk.

On 2 February, however, the Tarakhels appealed the decision to the Swiss Federal Administrative Court, claiming that the reception conditions in Italy were in breach of Article 3 of the European Convention on Human Rights (ECHR) - prohibiting torture, and "inhuman or degrading treatment or punishment" - and that the federal authorities had not given sufficient consideration to their complaint in that regard.

The Federal Administrative Court on 9 February 2012 dismissed the appeal, in its entirety. There were "shortcomings in the reception and social welfare arrangements, and asylum seekers [could] not always be taken care of by the authorities or private charities”, but there was no evidence capable of “rebutting the presumption that Italy complie[d] with its obligations under public international law".

With more particular reference to the Tarakhels' conduct, the Court held that "in deciding to travel to Switzerland, they [had] not given the Italian authorities the opportunity to assume their obligations with regard to [the applicants’] situation".

However, the Tarakels refused to accept the judgement and appealed to the ECHR on 10 May 2012, securing a stay of action until the case had been heard.

Then on 4 November just past, by fourteen votes to three, the Court ruled that there would be a violation of Article 3 of the Convention if the applicants were to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

With Italy either unwilling or able to give such guarantees, this case effectively rules out any country deporting asylum seekers to their first country of entry, as is permitted by the Dublin Regulation framed under EU law. Effectively, the ECHR is over-ruling EU provisions, setting itself up as an arbiter of EU regulations, and severely restricting the application of the Dublin system.

The judgement of the Strasbourg court sets a precedent for all the countries subscribing to the Convention, which means it also applies to the UK. In addition to France, Germany, Austria and Greece, we are now – to all intents and purposes – prohibited from deporting asylum seekers who entered from Italy back to the point of entry.

Despite this, the judgement has not been reported by the UK media, although we have several continental newspapers, including Deutsche Welle publish reports.

This source conveys the view that the Dublin Regulation is no longer working, with German MEP Ska Keller saying, "It is time to replace it with a reasonable system", instead of "holding to a system that discharges on the southern countries of the EU all responsibility for refugees".

But what is especially significant is that the country caught by this ruling is Switzerland. Despite being outside the EU, and supposedly in control of its borders, under the ECHR, it too must accept asylum seekers as directed by the Strasbourg court, with no possibility of appeal.

The extent of the insult perpetrated, however, can be seen from the caustic verdict of three dissenting judges. "There is nothing to demonstrate", they wrote, "that the applicants’ future prospects if they were returned to Italy, whether taken from a material, physical or psychological perspective, disclosed a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3".

Almost in a note of despair, they then added: "Must we nonetheless impose additional requirements in future on Switzerland – and by extension on any other country in the same situation – despite the fact that neither systemic deficiencies nor a real and substantiated risk of ill-treatment have been shown to exist?"

Yet, with a case so thin, and a family so obviously without merit - entering not one but several countries illegally, ending up in Switzerland illegally - still the Swiss authorities are not able to deport them. Mr Hannan might have to rethink the merits of the "Swiss option" while UKIP needs to focus on the ECHR – amongst other things – rather than blame all our ills on the EU.

From Mr Cameron and the Conservatives, though, we need to see a firmer commitment to breaking the grip of the Strasbourg court, and bringing our own judges into line. Even leaving the EU would not resolve this problem.