Friday's (January 21) powerful ruling by the European Court of Human Rights that Greece is not a safe country of asylum should come as no surprise to immigration ministers in the EU.
The Court's Grand Chamber found that Greece's broken asylum system and appalling detention conditions meant that Belgium's transfer of an Afghan asylum seeker to Greece in 2009 under the Dublin II Regulation had breached the prohibition on ill-treatment and denied him an effective remedy.
The regulation permits EU states, as well as Switzerland, Norway and Iceland, to return adult asylum seekers to the first EU country they reached without first assessing their claims.
As the European Court's ruling makes clear, the elephant in the room is the Dublin Regulation. It assumes that all EU member states provide equal access to asylum for refugees and maintains the same reception standards. But this assumption is false.
On January 19, Germany became the latest in a growing number of states to suspend returns of asylum seekers to Greece under the regulation. That list includes Belgium, Finland, Iceland, Netherlands, Norway, Sweden, and the United Kingdom.
National courts have stepped in to halt returns, and nearly 1,000 cases are pending before the European Court. The Court's judgment in this case means that European governments that continue transfers to Greece are likely to fall foul of human rights law.
The UN refugee agency, UNHCR, has described the situation in Greece for migrants and asylum seekers as a "humanitarian crisis." Of the 30,000 first asylum applications it considered in 2010, just 11 were approved. The backlog stands at around 50,000 cases.
A presidential decree adopted in November restores a flawed appeal system abolished in 2009 and may help bring down the backlog. But it is unlikely to improve poor decision-making or provide meaningful access to asylum. Greece adopted a new asylum law this month, which should improve the process for asylum decisions and appeals, but it may take more than a year to put it into effect.
Neither the decree nor the new law will immediately address the appalling detention conditions faced by migrants and asylum seekers, though, the cycling in and out of detention for migrants who cannot be removed for legal or practical reasons, or the lack of protection for unaccompanied migrant children, who continue to be detained with adult strangers or left to fend for themselves on the streets.
The European Commission has rightly initiated infringement proceedings against Greece for breaching common EU asylum rules, which is all the more important now that EU law, in the binding Charter of Fundamental Rights, contains an explicit right to seek asylum.
With more than three-quarters of migrants who enter the EU irregularly by land coming across the Greek border from Turkey, the Dublin regulation means that an EU country ill-equipped to assess asylum claims or to treat migrants humanely has to manage a disproportionate number of arrivals. The regulation has led to a similarly unfair burden for Malta and other external border states.
If Greece is able, with the EU and UNHCR's help, to improve its asylum system and detention conditions to the extent that Dublin returns from other EU states can safely resume, it will quickly find itself back at square one, facing an ever increasing number of claims, and the likely deterioration and delays of decision-making and overcrowding in detention that come with it.
The EU and member states recognize this. But the solutions offered to date have focused on keeping migrants and asylum seekers from entering Greece in the first place.
In November, the EU's external frontiers agency, Frontex, sent border guards to bolster Greece's border with Turkey. In December, the Greek government announced plans to build a fence along a part of that border. And there are ongoing efforts to press Turkey, which itself lacks an effective refugee protection system, to prevent migrants and asylum seekers from entering Greece and to take back those who manage to cross the border. These initiatives call into question EU member states' commitment to the right to seek asylum.
If the European Union is serious about that right, it needs to look again at the Dublin regulation.
That is tough politically. The status quo suits the more powerful and numerous interior EU states buffered by weaker front-line states. Recent efforts by the European Commission to pursue modest reforms of Dublin that would allow for temporary suspension of transfers in cases of mass influx have faltered in the face of opposition from as many as two-thirds of member states, happy to have an instrument that allows them to deflect asylum seekers from their territory.
Unless and until the Dublin regulation is fundamentally reformed, the asylum crisis in Greece will not go away. And a common EU asylum system that guarantees the right to seek asylum will remain an aspiration.
Benjamin Ward is Deputy Director in Human Rights Watch's Europe and Central Asia division.
