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Reconciling the Dublin system with European fundamental rights and the Charter

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Abstract

The article analyses the changes introduced to the Dublin system by the Dublin III Regulation concerning namely the provisions related to determining the Member State responsible for examining the application for protection, rules regarding procedural rights, the possibility to detain the person in order to secure transfer procedures and the “early warning mechanism”. It also assesses those rules from the point of view of fundamental rights.

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Notes

  1. See MSS v Belgium and Greece, judgment of 21 Jan. 2011, not yet reported; and Joined Cases C-411/10 NS and C-493/10 ME, judgment of 21 Dec. 2011, not yet reported, reaffirmed in Case C-4/11 Puid, judgment of 14 Nov. 2013.

  2. OJ 1997 C 254. For the background, see Hurwitz, The Collective Responsibility of States to Protect Refugees (OUP, 2009), Chap. 1.

  3. Reg. 343/2003, OJ 2003 L 50/1.

  4. See the treaties between the EU and: Norway and Iceland (OJ 2001 L 93/38, and Protocol in OJ 2006 L 57/15); Denmark (OJ 2006 L 66/38); Switzerland (OJ 2008 L 53); and Liechtenstein (OJ 2008 L 83).

  5. Case C-19/08 Petrosian [2009] ECR I-495; Joined Cases C-411/10 NS and C-493/10 ME, judgment of 21 Dec. 2011; Case C-620/10 Kastrati, judgment of 3 May 2012; Case C-245/11 K, judgment of 6 Nov. 2012; Case C-528/11 Halaf, judgment of 30 May 2013; Case C-648/11 MA, judgment of 6 June 2013; Case C-4/11 Puid, judgment of 14 Nov. 2013; and Case C-394/12 Abdullahi, judgment of 10 Dec. 2013.

  6. Reg. 1560/2003, OJ 2003 L 222/3.

  7. Reg. 604/2013, OJ 2013 L 180/31, Art. 49. All references in this article are to this Regulation, unless otherwise indicated.

  8. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60); Regulation 603/2013 on Eurodac (OJ 2013 L 180/1; and Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96). The other key measure in the second-phase is Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9).

  9. Reg. 118/2014, OJ 2014 L 39/1, which amended the previous implementing measure. See the discussion of Arts. 44 and 45 in Sect. 2.9 below.

  10. COM (2008) 820, 3 Dec. 2008.

  11. NS and ME, as confirmed by Puid (n. 6 above), based on the Strasbourg judgment in MSS v Belgium and Greece. For analysis of the latter judgment, see for instance Moreno-Lax, “Dismantling the Dublin System: M.S.S. v Belgium and Greece”, 14 EJML (2012) 1.

  12. NS and ME, ground 81.

  13. Member States still retain a general option to consider any application on any grounds (the “sovereignty clause”: Article 17(1)) or to consider an application (or request another Member State to consider it) on humanitarian or family grounds (the “humanitarian clause”: Article 17(2)).

  14. N. 6 above.

  15. Art. 3(4), Dublin II Regulation. There was no comparable provision in the Dublin Convention.

  16. Art. 16a and Annexes X and XI to the implementing Regulation, added by Reg. 118/2014.

  17. Compare to the interview clause in the procedures Directive.

  18. See by analogy the MA judgment (n. 6 above). See also recital 13 in the preamble.

  19. See Reg. 1560/2003, as amended by Reg. 118/2014.

  20. See judgments in MA, Kastrati and K (n. 6 above). Furthermore, the Abdullahi judgment could be read to mean that it only applies where the “irregular entry” criterion is being invoked.

  21. Compare to the mere “risk of absconding” as one of the grounds for detention in Art. 15(1) of the Returns Directive.

  22. Therefore, contra the judgment of 17 July 2014 in Case C-481/13 Qurbani, not yet reported, the Court should have jurisdiction to interpret that provision of the Convention where it is arguably relevant to a detention.

  23. This compares to the normal deadline to make a request within two or three months.

  24. This compares to the normal deadline to reply to a request within one or two months.

  25. This compares to the normal deadline to transfer the person within six months.

  26. Note that there is no obligation to release if the requested State misses its deadline to reply.

  27. Those rules also apply to the non-participants in the first-phase Directive (Ireland, Denmark and the Schengen associates).

  28. See by analogy Case C-357/09 PPU Kadzoev [2009] ECR I-11189.

  29. See the 2013 report of the Jesuit Refugee Service, Lives on Hold, which concluded on the basis of interviews with asylum-seekers that a lack of information and poor interview practice made it much more difficult for them to invoke appeal rights in the Dublin system in practice.

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Authors and Affiliations

  1. Law School, University of Essex, Wivenhoe Park, Colchester, CO4 3SQ, UK

    Steve Peers

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  1. Steve Peers
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Correspondence to Steve Peers.

Additional information

This paper is adapted from a longer analysis of the Regulation in Garlick, Guild, Moreno Lax and Peers, EU Immigration and Asylum Law, Vol. 3 (forthcoming: Brill, 2015) and is based on a presentation given at the ERA conference Applying the Reformed Dublin Regulation organised on 28–29 April 2014 in Trier.

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Peers, S. Reconciling the Dublin system with European fundamental rights and the Charter. ERA Forum 15, 485–494 (2014). https://doi.org/10.1007/s12027-014-0365-9

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  • DOI: https://doi.org/10.1007/s12027-014-0365-9

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