Pubblicazioni

The future of the Common European Asylum System in the light of Brexit: is there still a role to play for EU immigration law?  (2021)

Autori:
Fratea, Caterina
Titolo:
The future of the Common European Asylum System in the light of Brexit: is there still a role to play for EU immigration law?
Anno:
2021
Tipologia prodotto:
Contributo in volume (Capitolo o Saggio)
Tipologia ANVUR:
Contributo in volume (Capitolo o Saggio)
Lingua:
Inglese
Formato:
A Stampa
Titolo libro:
Nuevo Mundo, Nueva Europa. La redefinición de la Unión Europea en la era del Brexit
Casa editrice:
Tirant Lo Blanch
ISBN:
9788413781341
Intervallo pagine:
329-339
Parole chiave:
European Union, Brexit, Immigration Law, Dublin III Regulation
Breve descrizione dei contenuti:
Within the international and EU legal sources regarding asylum, the Geneva Convention and Protocol on the Status of Refugees contains the international definition of “refugee” and regulates the obligations of Contracting States. Moreover, the Convention establishes the fundamental and general (however not absolute) principle of non-refoulement. The Convention is also an essential element of the EU asylum framework as shown by Article 78 TFEU, according to which EU legislation must be in compliance with the Convention. However, broadly speaking, the Geneva Convention does not regulate the issue of responsibility for examining applications for refugee status, which is instead dealt with by the Dublin III Regulation. The basic purpose of the Dublin III Regulation is, in fact, to prevent multiple applications and ensure a swift handling of applications. Where an application is made in a Member State that is not responsible by virtue of the Regulation, it may ask the Member State that is responsible to take charge of or to take back the applicant. In principle, the responsible Member State must accept this responsibility, with some exceptions enshrined in Article 3(2) of the Regulation related to the risk of inhuman or degrading treatment (see judgments of the European Court of Justice NS of 2011, C-411/10, and CK of 2017, C-578/16 PPU). However, since all Member States can be considered safe countries, the EU system appears to be consistent with the prohibition of refoulement contained in the Geneva Convention also where Article 3(3) of the Dublin III Regulation allows Member States to refuse to examine an application and return the applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU. In this regard, in the light of Article 4 of the Charter of Fundamental Rights of the European Union, the ECJ, recalling the case law of the European Court of Human Rights, has recently specified that a third country national, who in the past has been tortured by the authorities of his country of origin, cannot be expelled if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, even though the applicant no longer faces a risk of being tortured if returned to that country (case M.P. of 2018, C-353/16). In this legal framework, the effect of the withdrawal of the UK on the Dublin system in cases involving the UK has to be investigated. In particular, three different scenarios can be drawn. In the first place, it should be clarified the operation of the Dublin system in cases where the UK is involved prior to the withdrawal. In this scenario, a distinction has to be made between the situation where UK, before the departure, makes a request to another Member State, in which the Dublin III Regulation will continue to apply, and the situation where another Member State asks the UK to take charge or to take back an applicant. The European Court of Justice has dealt with this precise question in the case MA of 2019 (C-661/17) and, by interpreting Article 17(1) of the Dublin III Regulation, established that the fact that a Member State, designated as ‘responsible’ within the meaning of that Regulation, has notified its intention to withdraw from the European Union does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue. It is possible to notice how the conclusions drawn by the Court within the immigration policy resembles the one adopted in the case RO of 2018 regarding the European Arrest Warrant (C-327/18 PPU), which rules that a detained person can be surrendered to the UK while it is still a Member State. In fact, a Member State’s notification of its intention to withdraw from the European Union does not have the effect of suspending the app
Id prodotto:
119642
Handle IRIS:
11562/1037320
ultima modifica:
19 ottobre 2022
Citazione bibliografica:
Fratea, Caterina, The future of the Common European Asylum System in the light of Brexit: is there still a role to play for EU immigration law? Nuevo Mundo, Nueva Europa. La redefinición de la Unión Europea en la era del BrexitTirant Lo Blanch2021pp. 329-339

Consulta la scheda completa presente nel repository istituzionale della Ricerca di Ateneo IRIS

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