Migration Law JUFN20 The Dublin System
Issues at stake A flees Eritrea and enters Italy. She stays there for one week but doesn t claim asylum. She then travels to Germany where she lodges an asylum application. Which state is responsible to examine A s asylum claim? What are the criteria for declaring a MS responsible? Does A have a say on the decision of responsibility? Can a state not responsible to examine A s claim, assume responsibility? Can A challenge a trasfer decision? On what grounds?
Evolution of the Dublin System The Dublin system is a collection of European regulations on the determination of the MS 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.
Dublin objectives To establish a method..[for determining responsibility for claims] based on objective, fair criteria both for the Member States and for the persons concerned.. Which should.. make it possible to determine rapidly the Member State responsible.. so as to guarantee effective access to the procedures for granting international protection. Recital 5, Regulation 2013/604/EU
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)
System s (in)efficiency On average across Europe (2008-2012) only around 25% of all outgoing requests resulted in actual transfers of asylum seekers under the Dublin Regulation. (EASO Report 2014) States frequently exchange equivalent numbers of Dublin requests between themselves, i.e. in 2013 Germany made 281 transfers to Sweden, while Sweden transferred 289 asylum seekers to Germany (EUROSTAT 2014) Suspension of transfers by national courts to countries due to worryingly inadequate legal safeguards vis-à-vis asylum seekers
Dublin III overview
Interpreting Dublin Regulations With respect to the treatment of persons falling within the scope of Dublin Regulations, MSs 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. 10-12,20)
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
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.
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)
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)
Discretionary Clauses A MS may decide to examine an application, even if such examination is not its responsibility under the criteria (Art. 17 1 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. 17 2 and rec. 17)
Definitions (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 entering the territory of MS Family members - spouse or unmarried partner and minor unmarried children of the applicant - 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
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 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 age and maturity. Family tracing (Art. 8 5,6) family members, siblings, relatives
Dependency (Art. 16) Conditions: (exist cumulatively) the child/sibling/parent is legally resident in one of the MS; either the applicant or the relative is pregnant, or has a new-born 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/her Burden of proving family link and dependency on the applicant Reunification in the MS where the relative is resident
Humanitarian clause CJEU, K (Austria), Case C-245/11, 6 November 2012 (Art. 15 343/2003) Does a state become automatically responsible on humanitarian grounds in a situation of dependency? In a situation not of bringing together relatives but rather of keeping them together in the MS in which they are present, the requirement of a request from the MS responsible would run counter to the obligation to act speedily (paras 52-54) Definition of other relatives to include mother-in-law
National case law Upper Tribunal Immigration and Asylum Chamber, UK ZAT and others v. Secretary of State of the Home Department, 21 January 2016. The Order we make achieves an accommodation between the two legal regimes in play. It strikes an appropriate balance by preserving the general structure of the CEAS and the Dublin Regulation principles in particular, while simultaneously ensuring that once a claim by any of the first four Applicants has been made, the administration of the CEAS will not be permitted to interfere disproportionately with the Article 8 rights of that Applicant or his family member (par.58)
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