Advocate General dismisses any UK opt out from EU Charter of Fundamental Rights

Advocate General Trstenjak has handed down her opinion in the landmark case of Saeedi/NS (C411/10) in which the Court of Justice of the European Union (CJEU) is deciding fundamental questions about Member States' obligations under the EU Charter of Fundamental Rights and whether the Charter has direct effect in the UK.


At the hearing before the Grand Chamber in June, Doughty Street barristers Mark Henderson and Alison Pickup appeared for Saeedi/NS, Geoffrey Robertson QC and Jonathan Cooper for EHRC, and Simon Cox for Amnesty International and the AIRE Centre. 13 Member States also intervened along with the European Commission and UNHCR, and an Irish reference, ME, was joined with NS.


The reference made by the Court of Appeal in July 2010 had asked about the effect of the UK and Polish Protocol (so-called 'opt out') to the EU Charter of fundamental Rights, the circumstances in which a risk of a breach of the Charter would preclude transfer under the Regulation, and the compatibility with fundamental rights of the UK's third country deeming provision.


The AG holds that Member States' duties under the Charter override principles of mutual trust so that Member States are bound by the Charter to take responsibility for examining asylum claims where there is a serious risk that the responsible state under Dublin (in this case Greece) would not comply with asylum seekers' fundamental rights under the relevant articles of the Charter. She also holds that the controversial third country deeming provision in the 2004 Act is incompatible with Article 47 of the Charter. (In Nasseri, the Court of Appeal and House of Lords had reversed the declaration of incompatibility granted by the Administrative Court under the HRA in relation to the deeming provision.) She finally holds that the UK and Polish Protocol is not an 'opt out' from the Charter for these Member States, and in general simply reiterates the provisions of the Charter itself.


The Grand Chamber's judgment is expected by early next year.

To view the Advocate General Trstenjak's opinion click here

Commentary by Professor Steve Peers, "The NS and ME Opinions -The Death of 'Mutual Trust'?to view please click here.

Comment by Dr Cian Murphy is available to view on The Guardian website. 

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