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The death knell for the Dublin system following NS v. SSHD?

  • Competing, complementary or contradictory standards in the European asylum process
  • Briefing

, 1 February 2012

Event number:

Areas of law:


Law Societies‘ Joint Brussels Office
5th floor, avenue des Nerviens 85
1040 Brussels

Under the Dublin Regulation (343/2003/EC), asylum applicants must, in principle, be dealt with by the country by which they first entered the EU, leading to increased migratory pressure on Member States with an external Schengen land border.

In January 2010, the European Court of Human Rights held in MSS v. Belgium & Greece that asylum seekers’ rights under the Convention would be violated should those persons be transferred to Greece under the Dublin system, given the substandard quality of the asylum facilities there.

In its judgment on NS v. SSHD, released on 21 December 2011, the European Court of Justice has revisited this issue. Considering both the Dublin Regulation and the Charter of Fundamental Rights of the EU (CFR), it confirmed the existence of a rebuttable rather than a conclusive presumption of compliance of the receiving Member State with fundamental rights. Thus, transfers cannot be permitted where they would amount to a breach of Art. 4 CFR.

Key issues

  • In the aftermath of the judgment, what is the true meaning of Article 3(2) of the Dublin Regulation?
  • How should Member States’ authorities and courts evaluate whether the situation in another Member State poses a “serious risk” to applicants for international protection?
  • What is the standard for establishing that a transfer under the Dublin system would amount to a breach of the Charter?
  • What are the broader implications of NS v. SSHD for the future of the Common European Asylum System? What role will the Dublin recast proposal play? How will the proposed Early Warning System impact on this situation after NS?


Maria Hennessy, Senior Legal Officer, ECRE, Brussels
Samantha Hill, JHA Attache, Permanent Representation of the United Kingdom to the EU, Brussels
Matthew Holt, Treasury Solicitor, London
Flip Schüller, Partner, Böhler Advocaten, Amsterdam

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