The prohibition of inhumane and degrading treatment lies at the heart of the controversy surrounding the operation of the Dublin System for determining the responsible Member State for asylum applications and for transferring individuals accordingly. Prompted by the ECtHR’s decision in MSS v Belgium
, the Court of Justice adopted the ‘systemic deficiencies’ test in NS
finding that under Article 4 of the EU Charter a Member State is obliged to suspend a transfer to a Member State under the Dublin System if ‘it cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in [the receiving] Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhumane or degrading treatment within Article 4 of the Charter
.’ The CJEU confirmed the ‘systemic deficiencies’ test in subsequent jurisprudence on Dublin transfers to Greece (Puid
). Whether this obligation corresponds to the ECHR’s jurisprudence under Article 3 ECHR is open to question and there remains a certain tension between the two Courts on this issue. For instance, the 2014 Tarakhel
judgment of the ECtHR clarifies that ‘in the case of “Dublin” returns, the presumption that a Contracting State which is also the “receiving” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country.’ (para. 104). The ECtHR requires that the N.S.
‘systemic deficiencies’ test should not be the sole test to establish violations of Article 3 ECHR, but also an individual examination of the case, in particular a “thorough and individualised examination of the situation of the person concerned" in the state of destination might also lead to find a violation of Article 3 ECHR (Tarakhel v Switzerland
, paras. 101 and 121).
National courts faced with the practical challenge of reconciling two potentially conflicting obligations have also weighed in on the debate, with notable contributions from the UK courts, similar to the one presented in this case note.