Migration Law JUFN20. The Dublin System. Lund University / Faculty of Law / Doctoral Student Eleni Karageorgiou 2015/01/30

Transcription

1 Migration Law JUFN20 The Dublin System

2 The evolution of the Dublin System The Dublin system is a collection of European regulations on the determination of the state responsible to examine an asylum application. It progressively developed since the Schengen Agreement in 1985: 1990 Dublin Convention intergovernmental agreement 2003 Regulation 343/2003 or Dublin II 2013 recast Dublin Regulation (604/2013) or Dublin III Eurodac as a component of Dublin System.

3 Interpreting Dublin Regulations With respect to the treatment of persons falling within the scope of Dublin Regulations, MS are bound by their obligations under international law, including ECHR case-law (recital 32 Dublin III) 1951 Refugee Convention & 1967 Protocol non-refoulement (rec. 20) 1989 UN CRC and ECHR Best interest of the child (rec. 13) ECHR and EU Charter: family life, procedural safeguards (rec. 14,19) Compliance with other CEAS instruments (rec ,20)

4 Sharing or shifting responsibilities? The Dublin System establishes a hierarchy of criteria for identifying the MS responsible primarily the state which played the greatest part in the applicant's entry or residence in the EU. Dublin system may de facto result in additional burdens on MSs that find themselves under particular migratory pressures because of their geographical location. (Commission Green Paper, 2007)

5 System s (in)efficiency On average across Europe (2009 and 2010) appr. only 25.75% of all outgoing requests and 34.86% of all accepted requests resulted in actual transfers of asylum seekers under the Dublin Regulation. (Source: Eurostat) States frequently exchange equivalent numbers of Dublin requests between themselves, i.e. in 2010, Germany sent 306 outgoing requests to Switzerland and received in the same period 350 requests from Switzerland. ( Lives on Hold Report, 2013)

6 System s (in)efficiency Suspension of transfers by national courts to countries due to worryingly inadequate legal safeguards vis-à-vis asylum seekers Following M.S.S. and N.S. and M.E. rulings all EU states have suspended transfers to Greece (2012 and 1st half of 2013). German courts have suspended transfers to Italy in more than 200 cases between January 2011 and January Courts in Italy have suspended transfers to Malta and Hungary. In 2014 UNHCR called EU states to suspend transfers to Bulgaria.

7 Dublin III overview

8 Regulation 604/2013 recast (Dublin III) Applies to all applicants for international protection Exhaustive and clearer deadlines Provisions on procedural guarantees Detailed provisions on applicants with special needs Early warning, preparedness and crisis mechanism

9 Scope of the Regulation Geographical scope: EU Member States Associated States (Norway, Iceland since 2001 Switzerland, Liechtenstein since 2008) Personal scope: Applicants with on-going examination procedures, and 'former' applicants whose application was rejected with a final decision and who are present on the territory of another MS without authorization.

10 Applicability Issues (Art. 49) Case 1: application lodged and request sent before 1 January 2014 Dublin II applies; Case 2: both application lodged and request sent after 1 January 2014 Dublin III applies; Case 3: application lodged before 1 January, request sent after 1 January - criteria of Dublin II and the procedural rules of Dublin III apply;

11 Hierarchy of Criteria The application shall be examined by a single MS, indicated by the criteria set out in Chapter III (Art. 3 1) The criteria shall be applied in the order in which they are set out (Art. 7 1) Where no MS responsible can be designated on the basis of the criteria, the first MS in which the application for international protection was lodged shall be responsible for examining it (Art. 3 2)

12 Criteria (Art. 7) Minors (Art. 8) Family members refugees or subsidiary protection beneficiaries (Art. 9) Family members applicants for international protection (Art. 10) Family procedure (Art. 11) Issue of residence documents or visas (Art. 12) Entry and/or stay (Art. 13) Visa waived entry (Art. 14) Application in an international transit area of an airport (Art. 15)

13 Discretionary Clauses A MS may decide to examine an application, even if such examination is not its responsibility under the criteria. (Art and rec. 17) A MS may, at any time before a first decision regarding the substance is taken, request another MS to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations. (Art and rec. 17)

14 Provisions on minors (Art. 2) Minor a person below the age of 18 years Unaccompanied minor a minor who arrives on the territory of the Member States unaccompanied by an adult responsible, or who is left unaccompanied after he/she has entered the territory of MS Family members the spouse or his/her unmarried partner in a stable relationship and the minor and unmarried children of those When the applicant is minor and unmarried - the father, mother or another adult responsible for the applicant Relative(s) - adult aunt or uncle or grandparent of the applicant, present in the territory of a MS

15 Provisions on minors (Art. 6,8) The best interests of the child shall be a primary consideration for Member States with respect to all procedures (See also art. 3 CRC) Criteria for assessing the best interests of the child: (a) family reunification possibilities; (b) the minor s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity.

16 Family Tracing in Dublin context (Art. 8 5,6) The MS where the minor lodged an application shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child. (Does the family member have the capacity to take care of the minor?)

17 Dependency (Art. 16) Conditions: (exist cumulatively) the child/sibling/parent is legally resident in one of the MS; either the applicant or the child/sibling/relative is pregnant, or has a newborn child, or is seriously ill, or has a severe disability or is old; one of them depends on the assistance of the other, who is able to take care of him or her Burden of proving family link and dependency on the applicant Reunification in the MS where the relative is resident

18 State s obligations (Art. 18) take charge of an applicant who has lodged an application in a different Member State Or take back an applicant whose application is under examination in that MS, or who has withdrawn the application under examination, or whose application has been rejected (and who subsequently made an application in another MS or who is on the territory of another MS without authorization)

19 Examination of the application (Art. 18) Once the person is taken charge of or taken back: The MS responsible must examine or complete the examination of the application for international protection Where the application has been rejected at first instance only, the MS responsible must ensure that the person concerned has or has had the opportunity to seek an effective remedy pursuant to Art. 46 of Directive 2013/32/EU.

20 Timeframes (Art ) The 'normal' duration of a Dublin procedure should not extend a total of 11 months, in three steps: 1. Sending out a take charge/ take back request Within 3 months after the applicant lodged the application 2. Carrying out the transfer within 6 months after the country accepted responsibility or, in case of appeal of the transfer decision, after the final decision on the appeal

21 Timeframes (Art ) 3. Replying to a request "take charge" procedure: within 2 months after the receipt of the request. "take back" procedure: within 1 month after the receipt of the request. No answer from that country within this timeframe means that it has accepted responsibility for the application and agrees to take back.

22 Detention (Art. 28) Conditionality: Significant risk of absconding; Individual assessment; Proportionality; Less coercive measures cannot be applied effectively; Reasonable duration (time necessary to fulfil the required administrative procedures for transfer) Detention conditions and guarantees: Art. 9, 10, 11 Directive 2013/33

23 Early Warning Mechanism (Art. 33) Mechanism that ensures the well functioning of CEAS in case of particular pressure or risk of violation of fundamental rights Phases: 1. Commission carries out a process of evaluation of CEAS implementation (early warning) 2. If discovers potential issues of concern, asks informally the state for remedial action. If problems continue, makes formal recommendations and Commission MS-EASO conclude to a preparedness plan 3. If the PAP is not followed, MS has to draw up a crisis management plan

24 Dublin in practice

25 Two-step analysis in Dublin transfers 1. Material assessment of any risk of direct refoulement (inhumane and degrading treatment in the receiving country) 2. Material assessment of any risk of indirect refoulement (the receiving state may deport the applicant to his/her country of origin) How? Through an examination of compliance in law as well as in practice by the intermediary country with its regional and international human rights obligations

26 Cases of impossible transfer N.S. and M.E (Netherlands), Joined Cases C-411/10 and C-493/10, 21 December Obligation not to transfer? (Art. 3 Dublin II) A MS may not transfer an asylum seeker under Dublin Regulation to another MS, if it cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions in the receiving MS, amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhumane or degrading treatment within the meaning of Article 4 of the Charter (par. 94) (Art. 3 par. 2, Dublin III)

27 Remarks on N.S. case The presumption that a MS is in compliance with fundamental human rights is rebuttable the practical implementation of protection standards by the receiving MS must be verified. The case endorsed the M.S.S. reasoning but from the Charter perspective: risk of Article 4 of the Charter violation (prohibition of torture) Threshold systemic deficiencies in the asylum procedure and reception conditions. Is a slight failure by a MS to comply with the asylum acquis insufficient to stop returns?

28 Applying the criteria Kaveh Puid (Germany), Case C-4/11, 14 November (Art /2003 and Art /2013) Where a MS decide not to transfer an asylum seeker to the state competent to examine his application because of a risk of infringement of his fundamental rights in the latter, the MS is not, in principle, required itself to examine the application, rather it is required to continue examining the criteria and identify another MS as responsible. (par ) (Art. 3 par. 2, Dublin III)

29 Unaccompanied Minor MA, BT, DA (UK), Case C-648/11, 6 June (Art /2003) Art /2013 Unaccompanied minor with no member of his family legally present in the territory of a MS has lodged asylum applications in more than one MS the MS in which that minor is present becomes responsible. So that the procedure is not unnecessarily prolonged and unaccompanied minors have prompt access to asylum (par ) Note: If in that case the applicant was an adult and no other criterion applies the first MS in which the application was lodged becomes responsible (Art. 3 par. 2 Dublin III)

30 Case Study Linda, refugee in country A,with a new-born child father is absent, no work and no friends in A, limited financial means, suffers flashbacks. Kate, asylum seeker in country B, Linda s cousin, fled the same village. 1. Applicable provisions (recast Regulation) 2. Human rights standards (European regional law IL) 3. Country responsible

31 Thank you for your attention!