The (Rebuttable) Presumption of the European Union Member States as ‘Safe Countries’ under the Dublin Regulation

Abstract

The purpose of this chapter is to analyze a particular aspect of the so-called Dublin Regulation, whose aim is to determine the European Union (EU) Member State responsible for examining an asylum application, that is, the presumption that the EU Member States are “safe countries.” Although the notion of “safe country” is on the base of the Dublin Regulation functioning mechanism, as it implies that any EU Member States can transfer an asylum seeker to any other EU country which is responsible, the authors contend that the safety of an EU Member State can be given as presumed for the purpose of asylum seekers. The analysis of the present work starts, firstly, with the examination of the notion of “safe country” under the Dublin Regulation. In the second part, relying on the European Court of Human Rights’ (ECHR) case-law, it will be discussed to what extent the Court of Strasbourg clarifies the notion of “safe countries” and the test it applies to it. Finally, the Commission’s proposal for a recasting of the Dublin Regulation will be analysed with the aim of foresee possible future developments of the EU law mechanisms to rebut such a presumption as applied to the EU Member States. It will emerge that in order to assess the safety of an EU Member State, attention has to be given to the prohibition of both direct and indirect refoulement as well as to the effective remedy at the EU Member State’s domestic level.