Members of two Syrian families detained in Greece after fleeing the beseiged city of Aleppo have taken an unprecedented action in the Irish courts against the European Council, EU and Ireland over alleged breaches of their human rights.

The core claim of the families is that the EU-Turkey deal on migration agreed on March 18th by the European Council - the 28 EU Heads of State including Taoiseach Enda Kenny - was made outside the EC’s powers and breaches EU law. The deal allows Greece return to Turkey “all new irregular migrants” arriving there since March 20th.

That deal, and Ireland’s sanctioning of it, is incompatible with Ireland’s obligations under the European Convention on Human Rights and breaches various EU Treaties, including the Treaty on Functioning of the EU (TFEU) and the Charter of Fundamental Rights of the EU (CFREU), they claim.

The plaintiffs are a married couple, Mr and Mrs D, their two daughters aged 10 and 15 (a son is in Germany), and Mr S and his 13-year-old daughter (his wife and an other child are in Germany).

They say they are entitled, under the EU Dublin III regulations of 2013, to be transferred to Germany to join their family members who have secured international protection. They claim they are unlawfully prevented doing so because of the EU-Turkey deal.

Dinghy

They have been detained in Greece since March 20th when they arrived with 58 people in a rubber dinghy from Turkey following a dangerous journey during which, they allege, they witnessed the “push-back” and killing of Syrian asylum seekers by Turkish forces.

The case came before the High Court on Monday via applications by the plaintiffs for a preliminary trial of EU law issues and/or to decide if issues should be referred to the Court of Justice of the EU.

Padraig McCartan SC, for the plaintiffs, said the matter was “very urgent”. His clients were illegally arrested by Greece as an agent of the European Council, were entitled to be transferred to Germany and wanted undertakings they would not be returned to Turkey pending determination of the case.

Counsel for the respondents said they had no instructions to give the undertaking and the State intended to apply to have the action dismissed on grounds Ireland is not the appropriate forum for it.

Mr Justice Paul Gilligan adjourned the pre-trial matters to November 22nd.

Having spent several weeks in refugee camps on the Greek islands of Chios and Leros, Mr D’s family is now being put up by a charity in a house on Leros while Mr S and his son have been lodged in part of a building used for the mentally ill. They claim their passports and other papers remain confiscated by the Greek authorities.

Stress

In an affidavit, Mr D said people detained in Chios and Leros are under considerable stress and “desperate”. Theft in the camps is common with a consequent growing threat of violence and there was inadequate healthcare, bad food and “unacceptable” drinking water, he said.

His children have been unable to continue their education, his wife has suffered several collapses and his daughter wakes in the night crying and frightened, he said.

The plaintiffs claim they have no information when their protection applications will be processed but the Greek system will eventually assess them as “suitable” for return to Turkey, not on grounds of their own particular circumstances, but because of a pre-determination Turkey is a safe third country.

They dispute Turkey is a “safe” third country and also allege the Greek asylum system is not working.

Greece and Turkey suffer systemic deficiencies in their asylum procedures and reception conditions for asylum seekers such as to create a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the CFREU, they claim.

As non-Europeans, Turkey refuses to apply the provisions of the 1951 Refugee Convention to them and Turkish policy on asylum is incompatible with EU asylum policy, it is also claimed.