Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof

The Dublin Regulation or Regulation 343/2003 allocates the responsibility of Member States for the assessment of individual asylum applications within the EU.1 It allows Member States to transfer an asylum seeker to another Member State if this latter state is considered responsible according to one of the so-called Dublin criteria. In what are considered to be landmark cases with regard to the meaning of mutual trust in the Area of Justice, Security and Freedom, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) made clear in 2011 that ‘non-rebuttable trust’ is not allowed when this would jeopardize the protection of the fundamental rights of the individual.2 Both judgments have been welcomed by commentators, as putting an ‘end to blind trust’, or even implying ‘the Death of Mutual Trust’ or ‘Dismantling the Dublin System’.3 However, questions remain as to whether the considerations of both courts offer clear and practical tools for both the administration as well as the national courts. This contribution analyzes both judgments, assessing when or in which specific circumstances national authorities (including courts) are obliged to consider ‘trust’ to be rebutted and what this means for national procedures in practice. Considering more specifically the relationship between the state and an asylum seeker and the burden of proof during the asylum procedure, this contribution will address the following questions: