Systemic Deficiency": Legal Standard Setting, Human Rights, and Its Effect on the Individual in the Common European Asylum System

By looking at two judgments adjudicating Dublin–II–removals to Italy and Greece, this paper finds that setting the standard of “systemic deficiency” as a test in order to stop removals to countries within the Common European Asylum System is demonstrative of a clash between the sovereign interest and the human rights of asylum seekers and refugees. Drawing from Judith Butler’s concepts of ‘vulnerability’ and grievability’, law and rulings will be placed on a broader socio–political context. Through the standard of “systemic deficiency” a hierarchy of suffering based on “grievability” is created. “Systemic deficiencies” thereby impact local suffering and thus the lives of individual asylum seekers and refugees. Legal debate tends to often be reserved for lawyers and law scholars. Through our paper, we aim to broaden the scope of legal analysis by recognizing the value of analyzing legal frameworks from the perspective of the humanities and social sciences that underlie its reasoning. We thus aim to present a theoretical insight into the debate around law and asylum and so provide an integrated legal analysis, researching the material conditions of refugees and asylum seekers in Italy and Greece. By doing so, we hope to reach a broad audience, opening legal analysis up to scholars of neighbouring disciplines.