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THE DUBLIN II REGULATION

This Regulation replaces the provisions of the 1990 Dublin Convention with Community legislation. Its objective is to identify as quickly as possible the Member State responsible for examining an asylum application, to establish reasonable time limits for each of the phases of determining the Member State responsible, and to prevent abuse of asylum procedures in the form of multiple applications.

ACT

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

SUMMARY

In accordance with the Dublin Regulation, Member States have to assess which Member State is responsible for examining an asylum application lodged on their territory on the basis of objective and hierarchical criteria. The system is designed to prevent “asylum shopping” and, at the same time, to ensure that each asylum applicant’s case is processed by only one Member State.

Where another Member State is designated responsible under the criteria in the Regulation, that State is approached to take charge of the asylum seeker and consequently to examine his/her application. If the Member State thus approached accepts its responsibility, the first Member State must transfer the asylum seeker to that Member State.

In the case where a Member State has already examined or begun to examine an asylum application, it may be requested to take back the asylum seeker who is in another Member State without permission.

The Member State responsible where the applicant is transferred must then complete the examination of the application.

General principles

An asylum application is to be examined by only one Member State. Any Member State may decide to examine an asylum application, even if such examination is not its responsibility under the criteria of this Regulation.

The situation of a minor must be indissociable from that of his/her parent or guardian lodging an asylum application.

Hierarchy of criteria

The criteria for determining the Member State responsible are to be applied in the order in which they are presented in the Regulation and on the basis of the situation existing when the asylum seeker first lodged his/her application with a Member State.

The Regulation sets up the following criteria:

  • criteria related to the principle of family unity

Where the asylum seeker is an unaccompanied minor, the Member State responsible for examining his/her application is the Member State where a member of his/her family is legally present, provided that this is in the best interest of the minor. In the absence of a family member, the Member State responsible is that where the minor has lodged his/her application for asylum.

Where the asylum seeker has a family member who has been allowed to reside as a refugee in a Member State, that Member State will be responsible for examining the asylum application, provided that the person concerned so desires. Where the asylum seeker has a family member whose asylum application has not yet been subject to a first decision in a Member State, that Member State will be responsible for examining the asylum application, provided that the person concerned so desires.

In addition, the regulation provides a criterion for asylum applications submitted simultaneously or on close dates by several members of a family to be examined together.

  • criteria related to the issuance of residence permits or visas

Where the asylum seeker is in possession of a valid residence document or visa, the Member State that issued it will be responsible for examining the asylum application. Where the asylum seeker is in possession of more than one valid residence document or visa issued by different Member States, the responsibility for examining the asylum application will be assumed by the Member State that:

  • issued the residence document conferring the right to the longest period of residency or, where the periods of validity are equally long, the State that issued the residence document having the latest expiry date. Where visas are of different kinds, the same rule is to be applied;
  • issued the visa having the latest expiry date where the various visas are of the same type.

The same rules apply where the asylum seeker is in possession of one or more residence documents that expired less than two years earlier or one or more visas that expired less than six months earlier, but where the asylum seeker has not left the territories of the Member States. In these cases, the Member State responsible is the one in which the application has been lodged.

  • criteria related to illegal entry or stay in a Member State

Where the asylum seeker has irregularly crossed the border into a Member State, that Member State will be responsible for examining the asylum application. This responsibility ceases 12 months after the date on which the border has been illegally crossed.

When it is established that the asylum seeker has been living for a continuous period of at least five months in a Member State before lodging his/her asylum application, that Member State becomes responsible for examining the application. Where the applicant has been living for a period of time of at least five months in several Member States, the Member State where he/she lived most recently shall be responsible for examining the application.

  • criteria related to legal entry in a Member State

Where a third-country national applies for asylum in a Member State where he/she is not subject to a visa requirement, that Member State will be responsible for examining the asylum application.

  • application in an international transit area of an airport

Where a third-country national applies for asylum in an international transit area of an airport of a Member State, that Member State shall be responsible for examining the application.

Finally, the Regulation also provides for a ‘default criteria’ if no Member State can be designated as responsible for examining the asylum application on the basis of the criteria listed. In such cases, the first Member State with which the asylum application was lodged will be responsible for examining it.

Humanitarian clause

Any Member State, even where it is not responsible under the above binding criteria, may accept to examine an asylum application at the request of another Member State for humanitarian reasons and based in part on family or cultural considerations, provided that the persons concerned consent.

Taking charge and taking back

If a Member State deems another Member State responsible for examining an asylum application, it can call on that Member State to take charge of the application. The Member State responsible for the asylum application is required to fulfil specific obligations, in particular the obligations to take charge of or to take back the asylum seeker and to complete the examination of his/her application.

A request to take charge or to take back should provide all the information for the Member State requested to determine whether it is actually responsible. Where the requested State accepts to take charge of or to take back the person concerned, a reasoned decision stating that the application is inadmissible in the State in which it was lodged and that there is the obligation to transfer the asylum seeker to the Member State responsible is sent to the applicant. This decision may be appealed, but without suspensive effect unless, according to national legislation, the courts or competent bodies decide otherwise on a case by case basis.

The Regulation sets out the practical administrative arrangements for taking charge of and for taking back an applicant (time limits for submitting and replying to requests and for operating transfers, the necessary checks, notifications of decision, etc.). When a Member State does not respect the strict time limits laid down in the Regulation, it is considered to have implicitly accepted responsibility for the person concerned.

Administrative cooperation

If necessary for specific purposes, such as for determining the Member State responsible or for examining an asylum application, Member States can exchange personal data concerning asylum seekers, subject to strict data protection rules.

The reasons given by the applicant in support of his/her application shall only be exchanged if strictly necessary and only if he/she consents.

Any request for information shall set out the grounds on which it is based. The Member State that forwards the information shall ensure that it is accurate and up-to-date. The asylum seeker has the right to be informed of any data that is processed concerning him/her, and to have it corrected, erased or blocked if it has been processed in breach of this Regulation or of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

All requests, replies and written correspondence in application of this Regulation shall be sent through the ‘DublinNet’ electronic communications network.

Member States may, on a bilateral basis, establish administrative arrangements that relate to exchanges of liaison officers, simplification of procedures and shortening of time limits, in order to facilitate the application of the Regulation and increase its effectiveness.

REFERENCES

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 343/2003 17.3.2003 OJ L 50 of 25.2.2003

RELATED ACTS

Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [Official Journal L 222 of 5.9.2003].

Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast) [COM(2008) 820 final/2 – Not published in the Official Journal].
On 3 December 2008, the Commission adopted a proposal amending the Dublin II Regulation in order to enhance the system’s efficiency and to ensure that the needs of applicants for international protection are comprehensively addressed under the responsibility determination procedure. Moreover, in line with the Policy Plan on Asylum, the proposal is aimed at addressing situations of particular pressure on Member States’ reception capacities and asylum systems, as well as situations where there is an inadequate level of protection for applicants for international protection.
Regarding the efficiency of the system:

  • different deadlines are established or streamlined in order to make the procedure more efficient and rapid;
  • several provisions are clarified, such as the provision regarding the circumstances under which the responsibility of a Member State should cease. This is necessary to ensure a more uniform application of the Regulation and to diminish divergences of interpretation by the Member States;
  • a new provision is added on the sharing of relevant information before transfers are carried out in view of, inter alia, facilitating cooperation between Member States on practical arrangements for transfers.

Regarding the protection of asylum seekers falling under the Dublin Regulation:

  • the content, form and timing for providing information to applicants for international protection are specified in greater detail in the Regulation;
  • the right to appeal against a transfer decision, together with the obligation for the competent authorities to decide whether or not its enforcement should be suspended and to allow the person concerned to remain on the territory pending such a decision, are laid down. Moreover, the right to legal assistance and/or representation and, where necessary, to linguistic assistance is clarified in order to ensure a more effective right to seek a remedy;
  • a new provision recalling the underlying principle that a person should not be held in detention for the sole reason that he/she is seeking international protection is included. Moreover, in order to ensure that detention of asylum seekers under the Dublin procedure is not arbitrary, limited specific grounds for such detention are proposed;
  • the right to family reunification has been extended by, inter alia, including family members who are beneficiaries of subsidiary protection and who reside in another Member State and by making compulsory the reunification of dependent relatives;
  • the proposal finally strengthens the protection afforded to unaccompanied minors during the Dublin procedure in order to better take into consideration their interests.

Regarding the situations of particular pressure on certain Member States with limited reception and absorption capacities, a new procedure is included in the Regulation allowing for the suspension of Dublin transfers towards the responsible Member State. Such a procedure can also be used in cases where there are concerns that Dublin transfers could result in applicants not benefiting from adequate standards of protection in the responsible Member State, in particular in terms of reception conditions and access to the asylum procedure.
Codecision procedure (COD/2008/0243)

Report from the Commission to the European Parliament and the Council on the evaluation of the Dublin system [COM(2007) 299 final – Official Journal C 191 of 17.8.2007].
According to the Commission, the objectives of the Dublin system have, on the whole, been achieved. The Commission explains that, owing to the lack of precise data from the Member States, it has not been able to evaluate the cost of the system, and that some concerns remain in terms of both the practical application and the effectiveness of the system. The Commission addresses these concerns in the proposals amending the Dublin II Regulation (see above) and the Eurodac Regulation.

Council Decision 2008/147/EC of 28 January 2008 on the conclusion on behalf of the European Community of the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland [Official Journal L 53 of 27.2.2008].

Council Decision 2006/188/EC of 21 February 2006 on the conclusion of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national and Council Regulation (EC) No 2725/2000 concerning the establishment of Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention [Official Journal L 66 of 8.3.2006].

Council Decision 2001/258/EC of 15 March 2001 concerning the conclusion of an Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or Iceland or Norway [Official Journal L 93 of 3.4.2001].

source: http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33153_en.htm