Explanatory Memorandum to COM(2008)820 - Criteria and mechanisms for determining the Member State responsible for examining an application for international protection by a third-country national or a stateless person (Recast) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)820 - Criteria and mechanisms for determining the Member State responsible for examining an application for international ... |
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| source | COM(2008)820  |
| date | 03-12-2008 |
- Grounds for and objectives of the proposal
This proposal is a recasting of Council Regulation (EC) No 343/2003/EC of 18 February 2003 on 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 (hereafter: the Dublin Regulation).[1]
The Commission's Evaluation Report of the Dublin system issued on 6 June 2007 (hereafter: the Evaluation Report on Dublin) i as well as contributions received by various stakeholders in response to the Green Paper i consultation process have identified a number of deficiencies related mainly to the efficiency of the system put in place by the current legislative provisions and the level of protection afforded to applicants for international protection which are subject to the Dublin procedure. The Commission therefore wishes to amend the Dublin Regulation in order, on the one hand, to enhance the system's efficiency and, on the other, 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 i, 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.
- As announced in the Policy Plan on Asylum, this proposal is part of a first package of proposals which aim to ensure a higher degree of harmonisation and better standards of protection for the Common European Asylum System (hereafter: CEAS). It is adopted at the same time of the recast of the Eurodac Regulation i and the recast of the Reception Conditions Directive i. In 2009, the Commission will propose to amend the Qualification Directive i and the Asylum Procedures Directive i. In addition, in the first quarter of 2009 the Commission will propose the establishment of a European Asylum Support Office, which will aim to provide practical assistance to Member States in taking decisions on asylum claims. The Support Office will also provide assistance to Member States who are faced with particular pressures on their national asylum system, notably because of their geographical position, to comply with requirement of Community legislation, by providing specific expertise and practical support. General context
In an area without controls at the internal borders of the Member States, a mechanism for determining responsibility for asylum applications lodged in the Member States was needed in order, on the one hand, to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications and, on the other, to prevent abuse of asylum procedures in the form of multiple applications for asylum submitted by the same person in several Member States with the sole aim of extending his/her stay in the Member States.
Arrangements for determining responsibility for considering asylum applications were initially part of the intergovernmental Schengen Convention, and were replaced with the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, known as the 'Dublin Convention' i. To support the operation of the Dublin Convention, Council Regulation 2725/2000/EC of 11 December 2000 for the establishment of Eurodac (a Community-wide system for the comparison of the fingerprints of asylum applicants) was adopted (hereafter: the Eurodac Regulation) i.
In order to implement Article 63(1)(a) of the EC Treaty which required the replacement of the Dublin Convention with a Community legal instrument and to respond to the wish expressed by the Tampere European Council's conclusions of October 1999, the Dublin Regulation was adopted in February 2003.
The Dublin Regulation is considered the first cornerstone of the CEAS. It significantly improved the Dublin Convention, including a number of innovations, and it was based on the same general principles, in particular the fact that the responsibility for examining an application should primarily lie with the Member State which played the greatest part in the applicant's entry into and residence in the territories of the Member States, with some exceptions designed to protect family unity.
The Hague Programme invited the Commission to conclude the evaluation of the first-phase of legal instruments on asylum and to submit the second-phase instruments and measures to the Council and the European Parliament with a view to their adoption before the end of 2010. The Evaluation Report on Dublin concluded that overall, the main objectives of the system, notably to establish a clear and workable mechanism for determining responsibility for asylum applications, have, to a large extent, been achieved, but that some concerns remain, both regarding the practical application and the effectiveness of the system. Moreover, the responses to the Green Paper also identified an important number of shortcomings in the protection afforded to applicants for international protection who are affected by the Dublin Regulation.
Accordingly, this proposal to amend the Dublin Regulation responds to the invitation of the Hague Programme and is aimed at addressing the deficiencies identified in the implementation of the Dublin Regulation.
Moreover, the proposal aims to ensure consistency with developments in the EU asylum acquis , in particular with the Asylum Procedures Directive, with the Qualification Directive, and with the Council Directive 2003/9/EC on minimum standards for the reception of asylum seekers (hereafter: the Reception Conditions Directive) i.
A detailed analysis of the problems identified in relation to this Regulation and concerning the preparation carried out for its revision, the identification and assessment of policy sub-options and the identification and assessment of the preferred policy option is included in the Impact Assessment, annexed to the present proposal.
- Existing provisions in the area of the proposal
The 'Dublin system' consists of the Dublin and Eurodac Regulations, and their two Implementing Regulations: 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 (hereafter: the Dublin Implementing Regulation) i and Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention i.
The Regulation of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny i, adapted several provisions of the Dublin Regulation to the regulatory procedure with scrutiny. These are incorporated into the current proposal.
- Consistency with other policies
This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague Programme of 2004 in relation to the establishment of the CEAS. It is also fully compatible with the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum and the protection of personal data.
The Commission undertook a two-track approach for the evaluation of the Dublin system: a technical and a policy evaluation. The technical evaluation (the Evaluation Report on Dublin) was based on a wide range of contributions from Member States, including answers to a detailed questionnaire sent by the Commission in July 2005, regular discussions in expert meetings and statistics. Contributions from other stakeholders, in particular from the UNHCR and 'civil society' organisations have also been carefully considered. The consultation based on the Green Paper on the future of the CEAS served as a policy evaluation. The response to this public consultation included 89 contributions from a wide range of stakeholders. The issues raised and the suggestions put forward during the consultation have provided the main basis for the preparation of the Policy Plan on Asylum, which sets out a road-map for the coming years and lists the measures that the Commission intends to propose in order to complete the second phase of the CEAS, including inter alia the proposal to amend the Dublin Regulation.
On 5 March 2008 the Commission services informally discussed the broad outline of this proposal with the Member States in the Committee on Immigration and Asylum (CIA). Furthermore, expert meetings were also organised between October 2007 and July 2008 with Member States' practitioners, UNHCR and NGOs, lawyers and judges and Members of the European Parliament in order to seek their views on the improvements needed to the Dublin Regulation.
From the consultation process it emerged that the majority of Member States favour maintaining the founding principles of the Dublin Regulation, while acknowledging the need to improve certain aspects, primarily related to its efficiency. On the other hand, many civil society organisations and the UNHCR argue for a fundamentally different approach, based on allocating responsibility according to where an application for international protection is made. However, in the absence of political will for such a change, they call for better addressing within the Regulation the protection needs of applicants for international protection. The European Parliament in a report adopted on 2 September 2008 on the evaluation of the Dublin system i, suggested a number of improvements to the current system, most of which are protection-oriented.
The Commission's proposal takes into account the concerns expressed by all interested parties. While proposing to uphold the underlying principles of the Dublin Regulation, the Commission considers that it is particularly important to address in the current proposal both the efficiency and the protection related concerns.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- CONSULTATION OF INTERESTED PARTIES
- 1. Scope of the Regulation and consistency with asylum acquis
- 2. Efficiency of the system
- 3. Legal safeguards for the persons falling under the Dublin procedure
- 4. Family unity, sovereignty clause and humanitarian clause
- 5. Unaccompanied minors and other vulnerable groups
- 6. Particular pressure or inadequate level of protection
- ê 343/2003/EC
- Summary of the proposed action
The main aim of the proposal is to increase the system's efficiency and to ensure higher standards of protection for persons falling under the 'Dublin procedure'. At the same time, the proposal aims to contribute to better addressing situations of particular pressure on Member States' reception facilities and asylum systems.
The proposal retains the same underlying principles as in the existing Dublin Regulation, namely that responsibility for examining an application for international protection lies primarily with the Member State which played the greatest part in the applicant's entry into or residence on the territories of the Member States, subject to exceptions designed to protect family unity.
Moreover, it generally maintains the nature of the instrument which is to essentially lay down the Member States' obligations vis-à-vis each other, and to include provisions regulating the Member States' obligations vis-à-vis asylum seekers subject to the Dublin procedure only in so far as those provisions affect the course of the proceedings between Member States or are necessary to ensure consistency with other asylum instruments. However, it is proposed both that the existing procedural safeguards be ameliorated so as to ensure a higher degree of protection and that new legal safeguards be included so as to better respond to the particular needs of the persons subject to the Dublin procedure, while at the same time seeking to avoid any loopholes in their protection.
The proposal addresses the following issues:
The proposal extends the scope of the application of the Regulation in order to include applicants for (and beneficiaries of) subsidiary protection. This modification is considered necessary with a view to ensuring consistency with the EU acquis , namely with the Qualification Directive which introduced the legal notion of subsidiary protection. The proposal moreover aligns the terminology and definitions used in the Regulation with those contained in the other asylum instruments.
With the aim of ensuring that the responsibility determination procedure operates smoothly, several modifications are proposed, in particular:
- Deadlines for submitting take back requests are established and the deadline for replying to requests for information is reduced; a deadline for replying to requests on humanitarian grounds is introduced and it is clarified that requests on humanitarian grounds can be made at any time. These modifications aim to ensure that the responsibility determination procedure will become more efficient and rapid;
- The cessation of responsibility clauses have been clarified as regards in particular the circumstances under which the cessation clauses should apply, the Member State which bears the burden of proof and the consequences of the cessation of responsibility. These clarifications aim to ensure a more uniform application of the Regulation and to diminish divergences of interpretation by the Member States which may complicate or delay the determination of the Member State responsible;
- The circumstances and procedures for applying the discretionary clauses (humanitarian and sovereignty) have been clarified, with the aim inter alia of ensuring a more uniform and efficient application of the Regulation by the Member States. The details of the modifications made to these clauses are inserted under point 4;
- Rules on transfers have been added, i.e. on erroneous transfers and costs for transfers. A new provision on the sharing of relevant information before transfers are carried out is added (details are given under point 5), in view of inter alia facilitating cooperation between Member States on practical arrangements for transfers;
- The existing dispute settlement mechanism, provided currently by the Dublin Implementing Regulation only for divergences between Member States in the application of the humanitarian clause, has been extended in order to cover matters of dispute on the application of the entire Regulation;
- In order for the authorities to gather all necessary information in view of identifying the Member State responsible and, if need be, in order to inform orally the applicant about the application of the Regulation, a provision on the organisation of a compulsory interview is inserted. This aims at both increasing the efficiency of the system, by facilitating its application, and at providing adequate safeguards for the applicants for international protection.
In order to strengthen the legal safeguards for applicants for international protection and enable them to better defend their rights, the proposal introduces a number of modifications:
- The content, form and the timing for providing information to applicants for international protection are specified in greater detail in the Regulation. Moreover, the proposal foresees the adoption of a common information leaflet to be used across the Member States. Better informing applicants for international protection of the implications of the Dublin Regulation will increase their awareness of the responsibility determination procedure, which could inter alia contribute to reducing the phenomenon of secondary movements;
- 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 and the notification process is further 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. This principle confirms the EU acquis on detention, in particular the Asylum Procedures Directive and also ensures compliance with the EU Charter of Fundamental Rights and with international human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the UN Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment. 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 same level of treatment as for all detained asylum-seekers, regulated under the proposal amending the Reception Conditions Directive, has to be applied also for Dublin cases. As in the proposal amending the Receptions Conditions Directive, the special situation of minors and that of unaccompanied minors is taken into account by laying down specific rules for them. Since this provision only concerns the limited grounds for detaining persons falling under the Dublin procedure, it is logical to include it in this Regulation rather than in the proposal amending the Reception Conditions Directive;
- Several provisions are clarified in order to guarantee respect for the principle of effective access to the asylum procedure.
In order to strengthen the right to family unity and to clarify the interactions with and between the sovereignty and humanitarian clauses it is proposed to:
- Extend the right to family reunification to include family members who are beneficiaries of subsidiary protection and who reside in another Member State;
- Make compulsory the reunification of dependent relatives (i.e. either a relative which is dependant on an applicant or an applicant which is dependant on a relative) and of unaccompanied minors with relatives who can take care of them. This is achieved by essentially moving the current provisions dealing with these two issues from the humanitarian clause and inserting them under the binding responsibility determination criteria;
- Extend the definition of 'family members' as far as minors are concerned, in order to ensure better protection of the 'best interests of the child';
- Exclude the possibility of sending back an applicant for whom one of the family unity criteria can be applied at the time of the most recent application, on condition that the Member State where the first application was lodged has not already taken a first decision regarding the substance. The aim is to ensure in particular that possible new elements regarding the family situation of the asylum seeker can duly be taken into account by the Member State on whose territory the asylum seeker is, in line with the obligations laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- For reasons of clarity, the 'sovereignty' and the 'humanitarian' clauses are brought together under the same Chapter, called 'discretionary clauses', and are revised. It is proposed that the 'sovereignty clause' be used mainly for humanitarian and compassionate reasons. Regarding the circumstances for applying the 'humanitarian clause', it is proposed to keep a general clause allowing Member States to use it whenever the strict application of the binding criteria will lead to a separation of family members or of other relatives;
- Several aspects of the procedure regarding the application of the discretionary clauses are also clarified. In order to ensure that the sovereignty clause is not applied against the interests of the applicant, the obligation to obtain the consent of the applicant is retained.
In order to better take into consideration the interests of unaccompanied minors during the Dublin procedure, the proposal clarifies and expands the scope of the existing provision on unaccompanied minors and lays down further protection safeguards:
- A new provision dealing with guarantees for minors is added, spelling out inter alia the criteria Member States have to take into account when assessing the best interests of the child and specifying the right of being represented;
- The protection afforded to unaccompanied minors is enlarged to allow for reunification not only with the nuclear family but also with other relatives present in another Member State who can take care of them, as mentioned above. It is further clarified that, in the absence of a family member or another relative, the Member State responsible is the one where the applicant lodged his/her most recent application, provided this is in his/her best interests.
Regarding in general the protection of vulnerable groups within the Dublin procedure:
With the primary aim of ensuring continuity in the protection offered to applicants under the Dublin procedure subject to transfer decisions to the responsible Member State, the proposal includes a mechanism on sharing of relevant information between Member States before transfers being carried out.
In order to avoid that, in cases of particular pressure on certain Member States with limited reception and absorption capacities, Dublin transfers add to the burden on those Member States, a new procedure is inserted 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.
- Linguistic corrections
One linguistic correction had to be inserted in the Italian version of this proposal, namely in its Article 3 i, where the reference to 'third' before 'country' was added. This aligns the Italian version of Article 3 i of Regulation 343/2003/EC with the other linguistic versions of that Regulation and is needed in order to prevent any risk of misinterpreting that Article.
- Other linguistic corrections may equally occur in other language versions of the Regulation. Legal basis
This proposal amends Regulation 343/2003/EC and uses the same legal base as that act, namely Article 63, first paragraph, point (1)(a) of the EC Treaty.
Title IV of the Treaty is not applicable to the United Kingdom and Ireland, unless those two countries decide otherwise, in accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland attached to the Treaties.
The United Kingdom and Ireland are bound by Regulation 343/2003/EC following their notice of their wish to take part in the adoption and application of that Regulation based on the above-mentioned Protocol. The position of these Member States with regard to Regulation 343/2003 does not affect their possible participation with regard to the amended Regulation.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark attached to the Treaties, Denmark does not take part in the adoption of this Regulation and is not bound by it nor subject to its application. However, given that Denmark applies the current Dublin Regulation, following an international agreement that it concluded with the EC in 2006,[16] it shall, in accordance with Article 3 of that agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.
- Impact of the proposal on non EU Member States associated to the Dublin system
In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded, or is in the process of doing so, several agreements associating these countries also to the Dublin/Eurodac acquis:
-the agreement associating Iceland and Norway, concluded in 2001 i;
-the agreement associating Switzerland, concluded on 28 February 2008 i;
-the protocol associating Liechtenstein, signed on 28 February 2008 i.
In order to create rights and obligations between Denmark – which as explained above has been associated to the Dublin/Eurodac acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Community and the associated countries i.
In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/Eurodac acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the Council and the European Parliament. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac acquis, the 'guillotine' clause is applied and the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise by unanimity.
- Subsidiarity principle
Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to free movement of persons confers certain powers in relation to these matters on the European Community. These powers must be exercised in accordance with Article 5 TEC, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
The current legal basis for Community action regarding the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, is Article 63 (1)(a) TEC.
Due to the trans-national nature of the problems related to asylum in general, the EU is well placed to propose solutions in the framework of the Common European Asylum System (CEAS) to the issues identified as problems regarding the application of the Dublin Regulation. Although a considerable degree of harmonization was achieved in the Regulation adopted in 2003, there is still room for EU action so as to ensure a more efficient and a more protective Dublin system.
- Proportionality principle
The impact assessment on the amendment of the Dublin Regulation carefully assessed each option for addressing the problems identified, with a view to achieving a balance between costs and benefits, before reaching the conclusion that opting for the EU action put forward in this proposal does not go beyond what is necessary to achieve the objective of solving those problems.
- Impact on fundamental rights
This proposal was made subject to an in-depth scrutiny in order to ensure that its provisions are fully compatible with fundamental rights as general principles of Community as well as international law. Particular emphasis was put on the need to strengthen the legal and procedural safeguards for persons subject to the Dublin procedure and to enable them to better defend their rights as well as on the need to ensure better respect for the right to family unity and to improve the situation of vulnerable groups in particular that of unaccompanied minors in order to better address their special needs.
Ensuring a higher degree of protection for the persons subject to the Dublin procedure will have an overall strong positive impact for asylum-seekers from a fundamental rights point of view. In particular, better informing asylum-seekers about the application of this Regulation and their rights and obligations within it will on the one hand enable them to better defend their rights and on the other hand could contribute to diminish the level of secondary movements as asylum-seekers will be better inclined to comply with the system. The effectiveness of the right to judicial remedy will be increased, in particular by: laying down the right to appeal against a transfer decision and the right of not being transferred until a decision on the need to suspend the enforcement of the transfer is taken; providing that a person notified with a transfer decision should be granted a reasonable period of time to seek a remedy; laying down the right to legal assistance and/or representation. The principle of an effective access to the asylum procedure , which is part of the right to asylum, will be strengthened by clarifying the obligation for the Member State responsible to proceed to a full assessment of the protection needs of asylum-seekers transferred to it under the Dublin procedure. The right to liberty and freedom of movement will be reinforced by providing that detention of persons under the Dublin procedure should only be allowed in an exceptional case prescribed under the Regulation and only if it is in line with the principles of necessity and proportionality. Due account must be taken of the situation of minors whose detention is only allowed if it is in their best interests, whereas unaccompanied minors must never be detained.
The right to family reunification will be considerably reinforced, in particular by enlarging the scope of the Regulation to include applicants and beneficiaries of subsidiary protection, by making compulsory the reunification of dependent relatives and by forbidding, subject to certain conditions, the sending back of an applicant for whom one of the family unity criteria can be applied at the time of his/her most recent application. These safeguards will not only provide for an increased standard of protection for asylum-seekers but will also contribute to reduce the level of secondary movements, as the personal situation of each asylum-seeker will be better taken into account in the process of determining the Member State responsible.
Finally, the specific situations of vulnerable groups will be more adequately addressed in particular by strengthening the rights of unaccompanied minors through, inter alia, better defining the principle of the best interests of the child and by setting out a mechanism on exchange of relevant information, notably on medical conditions of the person to be transferred, with the primary aim of ensuring continuity in the protection and rights afforded to that person.
Member States are obliged to apply the provisions of this Regulation in full respect of fundamental rights. A monitoring and evaluation requirement is foreseen in the Regulation. This monitoring will also cover those provisions impacting on fundamental rights.
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