68
M.S.S. v. BELGIUM AND GREECE JUDGMENT
331. The Government of the United Kingdom emphasised that the
Dublin Regulation afforded a fundamental advantage in speeding up the
examination of applications, so that the persons concerned did not have time
to develop undue social and cultural ties in a State. That being so, it should
be borne in mind that calling to account under Article 3 the State
responsible for the asylum application prior to the transfer, as in the present
case, was bound to slow down the whole process no end. The Government
of the United Kingdom were convinced that such complaints, which were
understandable in cases of expulsion to a State not bound by the
Convention, should be avoided when the State responsible for handling the
asylum application was a party to the Convention. In such cases, as the
Court had found in K.R.S. v. the United Kingdom (cited above), the normal
interpretation of the Convention would mean the interested parties lodging
their complaints with the courts in the State responsible for processing the
asylum application and subsequently, perhaps, to the Court. According to
the United Kingdom Government, this did not absolve the transferring
States of their responsibility for potential violations of the Convention, but
it meant that their responsibility could be engaged only in wholly
exceptional circumstances where it was demonstrated that the persons
concerned would not have access to the Court in the State responsible for
dealing with the asylum application. No such circumstances were present in
the instant case, however.
332. In the opinion of the UNHCR, as they had already stated in their
report published in April 2008, asylum-seekers should not be transferred
when, as in the present case, there was evidence that the State responsible
for processing the asylum application effected transfers to high-risk
countries; that the persons concerned encountered obstacles in their access
to asylum procedures, to the effective examination of their applications and
to an effective remedy; and where the reception conditions could result in a
violation of Article 3 of the Convention. Not transferring asylum-seekers in
these conditions was provided for in the Dublin Regulation itself and was
fully in conformity with Article 33 of the Geneva Convention and with the
Convention. The UNHCR stressed that this was not a theoretical possibility
and that, unlike in Belgium, the courts in certain States had suspended
transfers to Greece for the above-mentioned reasons. In any event, as the
Court had clearly stated in the T.I. v. the United Kingdom case (cited
above), each Contracting State remained responsible under the Convention
for not exposing people to treatment contrary to Article 3 through the
automatic application of the Dublin system.
333. The AIRE Centre and Amnesty International considered that in its
present form, without a clause on the suspension of transfers to countries
unable to honour their international obligations in asylum matters, the
Dublin Regulation exposed asylum-seekers to a risk of refoulement in
breach of the Convention and the Geneva Convention. They pointed out
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