Between the CJEU and ECtHR: Human rights of asylum seekers and their reception conditions in Europe since Opinion 2/13

When host States fail to provide for specific needs of asylum seekers by providing them with inadequate reception conditions, this can amount to inhuman and degrading treatment. A further challenge is faced by asylum seeker families, given that maintaining their family unit may be at risk and that their individual children may have their own vulnerabilities. These particular challenges can intersect with other human rights, such as ther right to family life and the best interests of the child. Another difficulty for an asylum seeker is determining appreciating which European court may best adjudicateon issues relating to their rights: the Court of Justice of the EU [CJEU] or the European Court of Human Rights [ECtHR].. The dynamic and relationship between these two courts has gone through various phases over the decades. They share some features, namely geography, membership and some human rights protections albeit under different human rights instruments. This article analyses the extent to which the CJEU and the ECtHR now draw on each other’s jurisprudence (or not) as an interpretive aid of comparable human rights instruments. The focus here will be specifically how this waxing and waning inter-relationship impacts upon asylum seekers whose cases come before these courts. This paper focuses on those rights pertaining to material reception conditions for asylum seekers, including asylum seeker families. This article argues that, given the nature and relevance of appropriate reception conditions for asylum seekers, neither court must lose sight of the potential advantages to the human rights subject for broader scope of interpretation regarding comparable human rights provisions. Further, and particularly given the evident pattern of coolness between the two courts since Opinion 2/13, there is a need for a return to greater reciprocity.