2.7. The situation of Dublin returnees Transfers of asylum seekers from another Member State to Greece under the Dublin Regulation had been suspended since 2011, following the M.S.S. v. Belgium & Greece ruling of the ECtHR and the Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department ruling of the CJEU.350 Following three recommendations issued to Greece in the course of 2016, 351 and despite the fact that the Greek asylum and reception system remained under significant pressure, due to the closure of the socalled Balkan corridor and the launch of the EU-Türkiye Statement, the European Commission issued a Fourth Recommendation on 8 December 2016 in favour of the resumption of Dublin returns to Greece, starting from 15 March 2017, without retrospective effect and only regarding asylum applicants who have entered Greece from 15 March 2017 onwards or for whom Greece is responsible from 15 March 2017 onwards under other Dublin criteria.352 Persons belonging to vulnerable groups such as unaccompanied children are to be excluded from Dublin transfers, according to the Recommendation. 353 The National Commission for Human Rights in a Statement dated 19 December 2016, expressed its “grave concern” with regard to the Commission Recommendation and noted that:354 ‘it should be recalled that all refugee reception and protection mechanisms in Greece are undergoing tremendous pressure... the GNCHR reiterates its established positions, insisting that the only possible and effective solution is the immediate modification of the EU migration policy and in particular the Dublin system, which was proven to be inconsistent with the current needs and incompatible with the effective protection of human rights as well as the principles of solidarity and burden-sharing among the EU Member-States.’ An interesting court case was issued in Germany in January 2021 and sets the protection threshold to a level that corresponds to the actual situation in Greece. 355 According to this decision, returns to Greece are expected to put migrants at serious risk of degrading treatment due to inadequate living conditions for beneficiaries of international protection. The court also noted that the COVID-19 situation and restrictions pose additional hardship for refugees, specifically to access the labour market. 356 This judgment seems to be in line with the case law of both the ECtHR and the CJEU that confirms that it is not necessary to show ‘systemic deficiencies’ for a transfer to be unlawful and that any source of risk is reason enough. 357 350 351 352 353 354 355 356 357 ECtHR, M.S.S. v. Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011; CJEU, Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department, Judgment of 21 December 2011. Commission Recommendation of 10 February 2016, C(2016) 871; Commission Recommendation of 15 June 2016, C(2016) 2805; Commission Recommendation of 28 September 2016, C(2016) 6311. Commission Recommendation of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013, C(2016) 8525. For a critique, see Doctors of the World Greece, ‘Επανέναρξη των επιστροφών «Δουβλίνου»’, 14 December 2016, available in Greek at: http://bit.ly/2gHDKMJ; Amnesty International, ‘EU pressure on Greece for Dublin returns is ‘hypocritical’’, 8 December 2016, available at: http://bit.ly/2kG8Dzf; Human Rights Watch, ‘EU: Returns to Greece Put Refugees at Risk’, 10 December 2016, available at: http://bit.ly/2hgVaNi; ECRE, GCR, Aitima and SolidarityNow, Letter to the President of the European Commission and the Greek Minister of Migration Policy ‘Re: Joint Action Plan on EU-Türkiye Statement and resumption of Dublin transfers to Greece’, 15 December 2016, available at: http://bit.ly/2kGcc8P; National Commission for Human Rights, ‘Statement in response to the recommendation of the European Commission to reactivate the refugee return mechanism under the Dublin system’, 19 December 2016, available at: http://bit.ly/2kGi7us. Commission Recommendation C(2016) 8525, para 9. National Commission for Human Rights, ‘Statement in response to the recommendation of the European Commission to reactivate the refugee return mechanism under the Dublin system’, 19 December 2016, available at: http://bit.ly/2kGi7us. High Administrative Courts (Oberverwaltungsgerichte / Verwaltungsgerichtshöfe), Applicant (Eritrea) v Federal Office for Migration and Refugees, 21 January 2021. Full case summary can be found at EASO Case Law Database, available at: https://bit.ly/2PMoOzG. European Parliamentary Research Service, Dublin Regulation on international protection applications, February 2020, available at: https://bit.ly/2PLN19g, 57. 81