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M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
responsible for registering asylum applications. The paper characterised the
percentage of asylum-seekers who were granted refugee status in Greece as
“disturbingly low” and criticised the quality of asylum decisions. Concern
was further expressed about the extremely limited reception facilities for
asylum-seekers and the lack of criteria for the provision of a daily financial
allowance.
4. In its decision in K.R.S. v. the United Kingdom the Court noted its
ruling in T.I. v. the United Kingdom ((dec.), no. 43844/98, ECHR 2000-III),
to the effect that removal of an individual to an intermediary country which
was also a Contracting State did not affect the responsibility of the returning
State to ensure that the person concerned was not, as a result of the decision
to expel, exposed to treatment contrary to Article 3 of the Convention. In
this regard, the Court noted the concerns expressed by the UNHCR and
shared by the various non-governmental organisations and attached weight
to the fact that, in recommending that parties to the Dublin Regulation
should refrain from returning asylum-seekers to Greece, the UNHCR
believed that the prevalent situation in Greece called into question whether
“Dublin” returnees would have access to an effective remedy as foreseen by
Article 13 of the Convention.
5. Despite these concerns, the Court concluded that the removal of the
applicant to Greece would not violate Article 3 of the Convention. In so
finding, the Court placed reliance on a number of factors.
(i) On the evidence before the Court, which included the findings of the
English Court of Appeal in the case of R. (Nasseri) v. the Secretary of State
for the Home Department [2008] EWCA Civ 464, Greece did not remove
individuals to Afghanistan, Iran, Iraq, Somalia or Sudan and there was
accordingly no risk that the applicant would be removed to Iran on his
arrival in Greece.
(ii) The Dublin Regulation was one of a number of measures agreed in
the field of asylum policy at European Union level and had to be considered
alongside European Union member States’ additional obligations under the
two Council Directives to adhere to minimum standards in asylum
procedures and to provide minimum standards for the reception of asylumseekers. The presumption had to be that Greece would abide by its
obligations under those directives. In this connection, note had to be taken
of the new legislative framework for asylum applications introduced in
Greece and referred to in the letter provided to the Court by the Greek
Government.
(iii) There was nothing to suggest that those returned to Greece under
the Dublin Regulation ran the risk of onward removal to a third country
where they would face ill-treatment contrary to Article 3 without being
afforded a real opportunity, on the territory of Greece, of applying to the
Court for a Rule 39 measure to prevent such removal. Assurances had been
obtained from the Greek Dublin Unit that asylum applicants in Greece had a
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