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The (reformed) Dublin III Regulation—a tool for enhanced effectiveness and higher standards of protection?

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ERA Forum Aims and scope

Abstract

The aim of the (recast) Dublin III Regulation is to enhance the effectiveness of the Dublin system while securing higher standards of protection for applicants. The Regulation provides for new tools to achieve these aims. In practice, the implementation of the new Regulation has proven to be challenging, but is generally working well. However, there are still areas for improvement. Especially the right to family life and the right to an effective remedy, need to be further strengthened to conform to human rights standards.

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Notes

  1. Report from the Commission to the European Parliament and the Council on the evaluation of the Dublin system, COM(2007) 299 final, 6 June 2007.

  2. 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, OJ, L 50 of 25 February 2003, 1 (“Dublin II Regulation”).

  3. COM(2008) 820 final, 3 December 2008.

  4. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 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), OJ, L 180 of 29 June 2013, 31 (“Dublin III Regulation”).

  5. See the documents of the recast process as available under Eur-Lex, in particular the first proposal by the Commission of 2008 (see above note 3).

  6. See e.g. recital 9 of the Dublin III Regulation.

  7. See e.g. Maiani/Vevstad [2].

  8. See e.g. UNHCR and ECRE [3].

  9. See recital 1 of the Dublin III Regulation.

  10. CJEU, Case C-19/08, Petrosian, 29 January 2009, ECLI:EU:C:2009:41.

  11. CJEU, Case C-411/10 and C-493/10, N.S. and Others, 21 December 2011, ECLI:EU:C:2011:865. The outcome of this judgment was reconfirmed by the CJEU after the recast process had ended in the judgement, Case C-4/11, Puid, 14 November 2013, ECLI:EU:C:2013:740.

  12. CJEU, Case C-620/10, Kastrati, 3 May 2012, ECLI:EU:C:2012:265.

  13. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31 of 6 February 2003, 18.

  14. CJEU, Case C-179/11, CIMADE and GISTI, 27 September 2012, ECLI:EU:C:2012:594.

  15. CJEU, Case C-245/11, K, 6 November 2012, ECLI:EU:C:2012:685.

  16. CJEU, Case C-528/11, Halaf, 30 May 2013, ECLI:EU:C:2013:342.

  17. CJEU, Case C-648/11, MA and Others, 6 June 2013, ECLI:EU:C:2013:367.

  18. See above note 11.

  19. CJEU, Case C-394/12, Abdullahi, 10 December 2013, ECLI:EU:C:2013:813.

  20. Recital 9 of the Dublin III Regulation.

  21. All articles with no specification are articles of the Dublin III Regulation.

  22. Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 amending Regulation (EC) No 1560/2003 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, OJ L 39 of 8 February 2014, 4.

  23. 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, OJ L 222 of 5 September 2003, 3.

  24. As the Dublin II Regulation was repealed (see article 48) there is no legal basis in place for the application of the Dublin rules in procedures with Denmark.

  25. See Recital 10.

  26. This is only possible if a system of protection on the national level allows for such an application. For the case of Germany, this effect has been described by Bender/Bethke, [1], 358.

  27. See above note 11.

  28. E.g. if Greece was determined to be responsible according to the illegal entry clause (article 13 (1)) and a transfer to Greece cannot be carried out. The Member State needs to examine the criteria starting with the illegal stay clause (article 13 (2)).

  29. Article 18 (2) foresees that the responsible Member State shall “examine or complete the examination of the application for international protection made by the applicant” also in cases where the applicant has left the territory prior to the finalization of the examination. This provision has the effect that a discontinuation for formal reasons of an examination (e.g. because of “implicit withdrawal” or “renunciation” by the applicant) is no longer compatible with the rules of the CEAS.

  30. The only exception foreseen is the (practically so far quasi irrelevant) safe third country clause of article 3 (3).

  31. See articles 21 (3), 23 (4) and 24 (5) refer to the respective lists in article 22 (3).

  32. See evaluation report (note 1), 8.

  33. According to Article 29 (1) and (2) the transfer needs to be carried out within a time limit of six months of the acceptance of the request. In accordance with the CJEU decision in the case Petrosian the time limits starts to run from the final decision on an appeal or review where there is suspensive effect in accordance with article 27 (3). within six months from the final decisions. The time limit may be extended if the person is in criminal detention (up to maximum of one year) or if the person absconds (up to a maximum period of 18 months). If the transfer is not carried out within this time limit responsibility is transferred to the requesting state.

  34. In many Member States the crucial question was to what extent youth authorities have an influence in Dublin procedures and/or whether the protection of the right of the child was actually done by immigration specialists of youth protection entities.

  35. See above note 17.

  36. Some Nordic States still aim to transfer unaccompanied minors under a Dublin procedure if the respective minors already had received a negative decision in another Member State. This interpretation of the judgment MA is based on a diverging reading of para. 63 and 64 of the judgment and places the principle that there should only be one substantial decision over the principle that minors should not be transferred at all (the latter is the reading of the Commission according to its proposal as well as of the majority of Member States).

  37. Art. 5 (2) provides for the “petrification principle”. This means that for the purpose of establishing responsibility the situation at the time of the first asylum application needs to be assessed. This principle is retained in the recast Regulation in article 7 (2).

  38. Statement by the Council, the European Parliament and the Commission, published as part of the recast Regulation, OJ L 180 of 29 June 2013, 59.

  39. Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State, COM (2014), 382 of 26 June 2014.

  40. See e.g. UN Committee on the Rights of the Child (CRC) [4, 5].

  41. For a more in-depth analysis of these effects see Maiani/Hruschka, Der Schutz der Familieneinheit in Dublin-Verfahren, ZAR 2014, 69.

  42. See above note 15.

  43. See e.g. the decisions by the CJEU in N.S. and Others, MA and Others as well as in Puid (see above notes 11 and 17).

  44. ECtHR, Application No. 30696/09, M.S.S. v. Belgium and Greece, 21 January 2013.

  45. ECtHR, Application No. 27765/09, Hirsi Jamaa an Others v. Italy, 23 February 2012.

  46. Information obtained from officials of Member States at a meeting in Malta in September 2014.

  47. CJEU, Case C-277/11, M.M., 22 November 2012, ECLI:EU:C:2012:744.

  48. See in particular the judgements of the ECtHR, Application No. 25389/05, Gebremedhin v. France, 26 April 2007 and M.S.S. (above note 44).

  49. Recital 19 of the recast Regulation contains an explanation of this principle: “In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.” (emphasis added).

  50. Most notably (so far) the German Federal Administrative Court has taken this view: FAC, 10 B 6/14, 19 March 2014.

  51. In the case called EM (Eritrea), [2014] UKSC 12, 19 February 2014, the UK Supreme Court has stated that the real risk test developed by the ECtHR since the case Soering v. UK (Application No. 14038/88, 7 July 1989) remains the valid test.

  52. See e.g. ECtHR, Application No. 71932/12, Mohammadi v. Austria, 3 July 2014, § 74. However, the leading case of Tarakhel v. Switzerland (Application No. 29217/12) is still pending at the time of writing.

  53. See already above under 3.2.2 in the context of the protection of family life.

  54. See UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012.

  55. Most notably in the area of forcible returns as established in particular in Chapter II (“termination of illegal stay”) of the Returns Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals).

  56. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast).

  57. Ireland, the United Kingdom and Denmark have “opted out” of parts of the CEAS, whereas the “Dublin States” Iceland, Liechtenstein, Norway and Switzerland are not Members of the EU but associated to the Dublin system.

  58. In a case concerning the Common Agricultural Policy the German Federal Administrative Court (FAC) stated that the referenced Directives had direct effect within the scope of application of the Regulation (“Die in Bezug genommenen Richtlinien erlangten im Regelungsbereich der Verordnung unmittelbare Geltung.” FAC, 3 C 25.12, 19 September 2013, para 8).

  59. While authorities complain about inconsistent and ineffective procedures especially for transfers, refugee “activists” are concerned about the apparent injustice of the diverging standards of protection and receptions conditions and asylum applicants have significant problems to actually understand the system with the limited information that is available to them (including the fact that they would normally trust the (often flawed) information that they receive within the community and/or from persons that have facilitated their entry rather than the information they receive by authorities and/or lawyers). This leads to a situation where neither the authorities, nor refugee activists, nor asylum applicants actually have faith in the fairness and effectiveness of the Dublin system.

References

  1. Bender, D., Bethke, M.: Dublin III, Eilrechtsschutz und das Comeback der Drittstaatenregelung. Asylmagazin (2013)

  2. Maiani, F., Vevstad, V.: Reflection note on the Evaluation of the Dublin system and on the Dublin III proposal, doc. PE 410.690; published within the framework of the ODYSSEUS Research Project “Setting up a Common European Asylum System—report on the application of existing instruments and proposals for the new system” (EP Tender n° 2008/S91122789), under the supervision of Philippe De Bruycker (2009)

  3. UNHCR: The Dublin II Regulation. A UNHCR discussion paper, April 2006; ECRE, Report on the Application of the Dublin II Regulation in Europe, March 2006; Dublin Transnational Project, The Dublin II Regulation: Lives on hold, February 2013

  4. UN Committee on the Rights of the Child (CRC): General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC /C/GC/14, 29 May 2013

  5. UN Committee on the Rights of the Child (CRC): General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/GC/2005/6, 1 September 2005

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    Constantin Hruschka

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Hruschka, C. The (reformed) Dublin III Regulation—a tool for enhanced effectiveness and higher standards of protection?. ERA Forum 15, 469–483 (2014). https://doi.org/10.1007/s12027-014-0364-x

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