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Dublin Regulation

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The Dublin Regulation (Regulation No. 604/2013; sometimes the Dublin III Regulation; previously the Dublin II Regulation and Dublin Convention) is a Regulation of the European Union that determines which EU member state is responsible for the examination of an application for asylum, submitted by persons seeking international protection under the Geneva Convention and the Qualification Directive, within the European Union.

States applying Dublin instruments
  Dublin regulation
  EU-Denmark agreement
  non-EU member states with an agreement to apply the provisions

The Dublin Regulation forms a key part of the Common European Asylum System (CEAS). Together with the Eurodac Regulation, which establishes a Europe-wide fingerprinting database for unauthorised entrants to the EU, the Dublin Regulation forms the Dublin System. The Dublin Regulation aims to "determine rapidly the Member State responsible [for an asylum claim]"[1] and provides for the transfer of an asylum seeker to that Member State.

One of the principal aims of the Dublin Regulation is to prevent an applicant from submitting applications in multiple Member States. Another aim is to reduce the number of "orbiting" asylum seekers, who are shuttled from member state to member state.[2] The country in which the asylum seeker first applies for asylum is responsible for either accepting or rejecting the claim, and the seeker may not restart the process in another jurisdiction.[3]

As part of the third phase of CEAS, the Dublin III Regulation is to be replaced by the Asylum and Migration Management Regulation (AMMR) in 2024.

History

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The Dublin regime was originally established by the Dublin Convention, which was signed in Dublin, Ireland on 15 June 1990, and first came into force on 1 September 1997 for the first twelve signatories (Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom), on 1 October 1997 for Austria and Sweden, and on 1 January 1998 for Finland.[4] While the convention was only open to accession by member states of the European Communities, Norway and Iceland, non-member states, concluded an agreement with the EC in 2001 to apply the provisions of the Convention in their territories.[5]

Incorporation of the Dublin framework under EU law

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The Dublin II Regulation was adopted in 2003, replacing the Dublin Convention in all EU member states except Denmark, which has an opt-out from implementing regulations under the area of freedom, security and justice.[1] An agreement with Denmark on extending the application of the Regulation to Denmark came into force in 2006.[6] A separate protocol also extended the Iceland-Norway agreement to Denmark in 2006.[7] The provisions of the Regulation were also extended by a treaty to non-member states Switzerland on 1 March 2008,[8] which on 5 June 2005 voted by 54.6% to ratify it, and Liechtenstein on 1 April 2011.[9] A protocol subsequently made this agreement also applicable to Denmark.[10]

 
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Second phase of the Common European Asylum System

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On 3 December 2008, the European Commission proposed amendments to the Dublin Regulation, creating an opportunity for reform of the Dublin System.[11] The Dublin III Regulation (No. 604/2013) was approved in June 2013, replacing the Dublin II Regulation, and applies to all member states except Denmark.[12] It came into force on 19 July 2013. It is based on the same principle as the previous two, i. e., that the first Member State where finger prints are stored or an asylum claim is lodged is responsible for a person's asylum claim.[13]

In July 2017, the European Court of Justice upheld the Dublin Regulation, declaring that it still stands despite the high influx of 2015, giving EU member states the right to transfer migrants to the first country of entry to the EU.[14]

The United Kingdom withdrawal from the European Union took effect at the end of the Brexit transition period on 31 December 2020, at which point the Regulation ceased to apply to it.[15]

Asylum and Migration Management Regulation

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Main article: New Pact on Migration and Asylum

The Dublin III Regulation is to be replaced by an Asylum and Migration Management Regulation (AMMR), as part of the third phase of the Common European Asylum System. The Justice and Home Affairs Council reached an agreement on a negotiating position towards the European Parliament on 8 June 2023.[16] The Pact was adopted by the European Council on 14 May 2024 and will come into force in two years, from 2026.[17] The revised Regulation applies to all EU member states except those with opt-outs from the AFSJ policy area: Denmark and Ireland.[18] Denmark subsequently notified the EU that it would apply the amendments on 11 June 2024,[19] while Ireland's request to opt-in to the amendments was formally approved by the Commission in July 2024.[20]

Key to the Asylum and Migration Management Regulation is the institution of a new solidarity mechanism between the member states. Solidarity can take the form of relocation of migrants, financial contributions, deployment of personnel or measures focusing on capacity building. Solidarity will be mandatory for member states, but the form of solidarity is at the discretion of the member states themselves. Per relocation, member states can instead make a financial contribution of €20.000.[16] The updated rules on solidarity combine mandatory solidarity to assist member states dealing with a significant migrant influx with adaptable options for contributions. These contributions from member states may include relocating individuals, financial support, or, upon agreement with the recipient state, alternative measures of solidarity (such as supplying border personnel or aiding in establishing reception facilities). [21]

Criticism

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According to the European Council on Refugees and Exiles (ECRE) and the UNHCR the current system fails in providing fair, efficient and effective protection. Around 2008, those refugees transferred under Dublin were not always able to access an asylum procedure. This put people at risk of being returned to persecution.[22] The claim has been made on a number of occasions both by the ECRE[23] and the UNHCR[24] that the Dublin regulation impedes the legal rights and personal welfare of asylum seekers, including the right to a fair examination of their asylum claim and, where recognised, to effective protection, and leads to uneven distribution of asylum claims among Member States.

Application of this regulation can seriously delay the presentation of claims, and can result in claims never being heard. Causes of concern include the use of detention to enforce transfers of asylum seekers from the state where they apply to the state deemed responsible, also known as Dublin transfers, the separation of families and the denial of an effective opportunity to appeal against transfers. The Dublin system also increases pressures on the external border regions of the EU, where the majority of asylum seekers enter EU and where states are often least able to offer asylum seekers support and protection.[25]

After ECRE,[26] the UNHCR and other non-governmental organisations openly criticised Greece's asylum system, including the lack of protection and care for unaccompanied children, several countries suspended transfers of asylum seekers to Greece under the Dublin II regulation. Norway announced in February 2008 it would stop transferring any asylum seeker back to Greece under the Dublin II regulation. In September, it backtracked and announced that transfers to Greece would be based on individual assessments.[27] In April 2008 Finland announced a similar move.[28]

The regulation is also criticised by the Council of Europe Commissioner for Human Rights as undermining refugee rights.[29]

The European Court of Human Rights in the case M.S.S. v Belgium and Greece, judged on 21 January 2011 that both the Greek and the Belgian governments violated the European Convention on Human Rights by applying the EU's own law on asylum seekers and were given fines of €6,000 and €30,000, respectively.[30][31][32] Recently, voices have been heard calling for the imposition of tougher sanctions, should similar cases of trying to follow EU asylum laws occur in the future.[33]

The case of Tarakhel vs. Switzerland

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A Grand Chamber judgment in the European Court of Human Rights (ECHR) found that the Dublin Regulation had the potential to undermine individual rights and safeties of refugees.[34] Golajan and Maryam Tarakhel fled Iran to Italy with their six children. After leaving Italy’s reception center in Bari without permission, the family applied for asylum in first Austria and then Switzerland, but both countries applied for a transfer of control to the Italian authorities under the sovereignty clause in Article 3 of the Dublin Regulation, which allows countries to outsource application examinations.[34] Tarakhel then went to talk to the Federal Migration Office to request Swiss asylum, but the office concluded that under the Dublin Regulation, Italy was responsible for deciding their case. The Tarakhel family appealed under Article 3 of the European Convention on Human Rights, saying that they would be subject to “inhuman and degrading treatment” should they be forced to return to Italy due to their “systemic deficiencies” in asylum management.[34] They claimed that when taken in conjunction with Article 3, their rights under Article 13 of the Convention, which gives right to an effective remedy, are violated because the Swiss government did not take into account their situation as a family.[35] In 2013, over 14,000 asylum application had been made to Italy for only 9,630 places.[35] Since the Swiss Court did not have to ensure safe reception of the eight person family unit under the Dublin Regulation, the court found that there was plausible reason for the family to fear for their treatment in Italy. Additionally, the court believed that the presence of children, a “particularly underprivileged and vulnerable” demographic, meant that the governments should be even more careful in ensuring safe reception across borders.[35] Their complaint under Article 13 was found to be manifestly ill-founded. The Grand Chamber concluded in a 14-3 decision that Switzerland must ensure safe asylum before deportation.[34]

Switzerland is not a part of the European Union, but it did sign into the Schengen Zone, making it subject to the laws outlined in the Dublin Regulation. The Dublin Regulation, however, still upholds some aspects of EU Law. Since Switzerland also signed into the Council of Europe, they are beholden to the judgements of the ECHR. Therefore, the ECHR had to apply laws from the EU to a country that is not a part of the EU. In the dissenting opinion from the chamber judges, they write that it is outside of the scope of Swiss responsibilities to protect against potential future unsafe treatment, and they insist on instead putting any future burden on Italy.[34] Their unclear assignment of blame exposes some discrepancies in the Convention of Human Rights as well as the Dublin Regulation.

Dublin Regulation and the European refugees crisis

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Main article: European migrant crisis

Around 23 June 2015 during the European refugee and migrant crisis, Hungary considered itself overburdened with asylum applications after receiving 60,000 "illegal immigrants" that year and announced to no longer receive back applicants who had crossed the borders to other EU countries and were detained there, as they should according to the Dublin regulation, due to unspecified "technical reasons", thus practically withdrawing from that Dublin regulation.[36] On 24 August 2015, Germany therefore decided to make use of the "sovereignty clause" to process Syrian asylum applications for which it would not be responsible under the criteria of the Regulation.[37] On 2 September 2015, the Czech Republic also decided to offer Syrian refugees who had already applied for asylum in other EU countries and who had reached the country to either have their application processed in the Czech Republic (i. e. get asylum there) or to continue their journey elsewhere.[38]

States such as Hungary, Slovakia and Poland also officially stated their opposition to any possible revision or enlargement of the Dublin Regulation, specifically referring to the eventual introduction of new mandatory or permanent quotas for solidarity measures.[39]

In April 2018 at a public meeting of the Interior-Committee of the German Bundestag, expert witness Kay Hailbronner, asked about a future European asylum system, described the current state of the Dublin Regulation as dysfunctional. Hailbronner concluded, that once the EU has been reached, travelling to the desired destination, where the chances for being granted full refugee status are best and better living conditions are expected, was common practice. Sanctions for such travel were practically non-existent. Even if already deported, a return to the desired nation could be organized.[40]

In 2019, the European Union (EU) Member States sent out 142 494 outgoing requests to transfer the responsibility to examine an asylum application and effectively implemented 23 737 outgoing transfers to other Member States.[41] The largest numbers of outgoing requests using the Dublin procedure were sent by Germany (48 844), France (48 321), each representing close to one-third of the total number of outgoing requests recorded in 2019. They were followed by Belgium (11 882) and the Netherlands (9 267). These four Member States together sent more than four-fifths (83%) of all outgoing requests in 2019.[41]

In September 2024, with some 242,000 migrants obligated to leave the country, the German government announced the reintroduction of border controls to its European neighbors in an attempt to turn back new arrivals. Nathan Giwerzew described the Dublin III regulation in that context as "dysfunctional" - migrants who arrive in Europe are usually not registered by the country they first reach and are just waved through to Germany. And with no prior registration, they cannot be returned.[42] Of the 128,000 migrants, caught by German police near the borders in 2023, only 7.9% had been registered before by another European County and the fingerprints of the rest could not be found in the Eurodac database.[43]

See also

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Further reading

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  • Da Lomba, Sylvia (26 February 2004). Right to Seek Refugee Status in the European Union. Intersentia. ISBN 9050953492.

References

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  1. ^ a b "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". Official Journal of the European Union. L (50/1). 25 February 2003. Retrieved 2 March 2021.. repealed on 18 July 2013
  2. ^ Sabbati, Giulio; Poptcheva, Eva-Maria; Saliba, Susan (March 2015). "Asylum in the EU: Facts and Figures" (PDF). European Parliament.
  3. ^ European Commission staff working document accompanying the communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions - Policy plan on asylum : an integrated approach to protection across the EU - Impact Assessment
  4. ^ "Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (Deposited with the Government of Ireland)". Council of the European Union. Retrieved 8 November 2014.
  5. ^ "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 in Iceland or Norway". Council of the European Union. Retrieved 8 November 2014.
  6. ^ "Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the state responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention". Council of the European Union. Retrieved 8 November 2014.
  7. ^ "Protocol to the Agreement between the European Community, 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 in Iceland or Norway". Council of the European Union. Retrieved 23 April 2015.
  8. ^ "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". Council of the European Union. Retrieved 8 November 2014.
  9. ^ "Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to 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". Council of the European Union. Retrieved 8 November 2014.
  10. ^ "Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to 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 in a Member State or in Switzerland". Council of the European Union. Retrieved 23 April 2015.
  11. ^ "European Commission Proposal to recast the Dublin Regulation". Publications Office of the European Union. Retrieved 2 March 2021.
  12. ^ "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)". Official Journal of the European Union. L (180/31). 29 June 2013. Retrieved 2 March 2021.
  13. ^ "The Dublin III Regulation". Cecilia Wikstrom - EU-Parlamentariker. Archived from the original on 22 February 2014.
  14. ^ "EU court rejects 'open-door' policy and upholds right of member states to deport refugees". The Daily Telegraph. 26 July 2017.
  15. ^ Gower, Melanie (21 December 2020). "Brexit: the end of the Dublin III Regulation in the UK (Research Briefing)". House of Commons Library. Parliament of the United Kingdom.
  16. ^ a b https://www.consilium.europa.eu/en/press/press-releases/2023/06/08/migration-policy-council-reaches-agreement-on-key-asylum-and-migration-laws/ [bare URL]
  17. ^ https://www.consilium.europa.eu/en/press/press-releases/2024/05/14/the-council-adopts-the-eu-s-pact-on-migration-and-asylum/ [bare URL]
  18. ^ "Regulation (EU) 2024/1351 of the European Parliament and of the Council of 14 May 2024 on asylum and migration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060 and repealing Regulation (EU) No 604/2013". Official Journal of the European Union. L. 22 May 2024. Retrieved 23 June 2024.
  19. ^ "Regulation (EU) of the European Parliament and of the Council on asylum and migration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060 and repealing Regulation (EU) No 604/2013 Regulation (EU) of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison of biometric data in order to effectively apply Regulations (EU) …/… and (EU) …/… of the European Parliament and of the Council and Council Directive 2001/55/EC and to identify illegally staying third-country nationals and stateless persons and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, amending Regulations (EU) 2018/1240 and (EU) 2019/818 of the European Parliament and of the Council and repealing Regulation (EU) No 603/2013 of the European Parliament and of the Council Regulation (EU) of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 notification from Denmark". Council of the European Union. 13 June 2024. Retrieved 23 July 2024.
  20. ^ "COMMISSION DECISION (EU) 2024/2088 of 31 July 2024 confirming the participation of Ireland in Regulation (EU) 2024/1351 of the European Parliament and the Council on asylum and migration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060". Official Journal of the European Union. L. 2 August 2024. Retrieved 28 September 2024.
  21. ^ https://www.consilium.europa.eu/en/press/press-releases/2024/05/14/the-council-adopts-the-eu-s-pact-on-migration-and-asylum/ [bare URL]
  22. ^ "Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered". ECRE. Archived from the original on 22 March 2012. Retrieved 31 March 2008.
  23. ^ "ECRE Comments on the European Commission Proposal to recast the Dublin Regulation". ECRE. Archived from the original (PDF) on 23 December 2015. Retrieved 3 January 2012.
  24. ^ "UNHCR's Comments on the European Commission's Proposal for a recast of the Dublin and Eurodac Regulations". UNHCR. Retrieved 11 June 2009.
  25. ^ "Greece under fire over refugee treatment". EU Observer. 3 April 2008. Retrieved 11 June 2009.
  26. ^ "ECRE calls for suspension of Dublin transfers to Greece". ECRE. Archived from the original on 24 March 2009. Retrieved 11 June 2009.
  27. ^ "Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece". Human Rights Watch. HRW. 22 December 2008. Retrieved 11 June 2009.
  28. ^ "Finland halts migrant transfer to Greece after UN criticism". EU Observer. 21 April 2008. Retrieved 11 June 2009.
  29. ^ The ‘Dublin Regulation’ undermines refugee rights Archived 12 November 2010 at the Wayback Machine
  30. ^ Valentina Pop, "Human rights court deals blow to EU asylum system," EU Observer (21 January 2011). Retrieved 24 February 2015.
  31. ^ ECHR Press Release on the case
  32. ^ ECHR Grand chamber judgement 21 Januar 2011 in the case of M.S.S. v. BELGIUM AND GREECE, (Application no. 30696/09)
  33. ^ Harald Köpping, "A Vision of a Fair Asylum System for Europe," EUtopia (11 July 2012). Retrieved 24 February 2015.
  34. ^ a b c d e European Court of Human Rights (4 November 2014). "Tarakhel vs Switzerland". HUDOC. Retrieved 2024-05-15
  35. ^ a b c European Court of Human Rights (2014-11-04), Press Release: Sending Afghan family of asylum seekers back to Italy under the “Dublin” Regulation without individual guarantees concerning their care would be in violation of the Convention, HUDOC
  36. ^ "Defying EU, Hungary suspends rules on asylum seekers". Reuters. Archived from the original on 24 December 2015. Retrieved 9 March 2015.
  37. ^ "Germany: Halt on Dublin procedures for Syrians". Archived from the original on 8 November 2020. Retrieved 8 March 2016.
  38. ^ "Change in Czech refugee policy". Prague Post. Retrieved 9 March 2015.
  39. ^ "Refugee and Migrant crisis: Hungary refugees and migrants start walk to border – BBC News". BBC News. 4 September 2015. Retrieved 5 September 2015.
  40. ^ "Stellungnahme Zur Neuordnung des Gemeinsamen Europäischen Asylsystems (GEAS)" (PDF) (in German). bundestag.de. Retrieved 20 April 2018.
  41. ^ a b Key figures on functioning of Dublin system in 2019, Eurostat
  42. ^ Nathan Giwerzew:"Nancy Faeser führt Kontrollen an allen deutschen Grenzen ein – wird das reichen?" NZZ.ch, 9 September 2024, retrieved 9 September 2024
  43. ^ "Zurückweisungen in großem Stil" SZ, 6 September 2024, retrieved 9 September 2024.
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