Upcoming events
Annual Meeting and Workshop of the Working Party for Asylum and Immigration,
1. Introduction
On 18. February 2003 the Council of the European Union adopted the „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" (hereinafter referred to as the „Dublin II Regulation“). The main purpose of this Regulation is to determine rapidly the Member State responsible for examining an asylum application, to guarantee effective access to the asylum procedure and to prevent abuse in the form of multiple asylum applications.
The Dublin System is based on the assumption that all Member States respect the principle of non-refoulement and can thus be considered as „safe“ for third-country nationals. It further assumes that legal and practical harmonisation in the field of asylum has alredady beend achieved. In practice, however, the last-mentioned assumption has turned out to be too optimistic. UNHCR emphasized in its Discussion paper on the Dublin II Regluation, published in April 2006, that Member States still implement a variety of reception practices, and that they are far from a common interpretation of the refugee definiton and a common approach to the granting of international protection. This is – in the opinion of UNHCR - illustrated by the wide range of recognition rates in different Member States for asylum-seekers from a particular country of origin. These disparate practices result inter alia in secondary movements within the territory of the European Union. UNHCR expressed its concern, that the lack of harmonisation and inconsistent interpretation of the refugee definition given in Article 1 A of the 1951 Refugee Convention may lead to direct and indirect refoulement1.
With my paper I would like to contribute a little to the common interpretation of the Dublin II Regulation, by describing the Austrian position on the interpretation of the provisions of the Regulation, maybe as an input for further discussions. In fact, Austrian case-law, including the jurisdiction of the Austrian High Administrative Court (Verwaltungsgerichtshof), pays much attention to the Dublin II Regulation, perhaps more (somebody might say too much) than the courts in other Member States (I remember the comment of a German collegue at the work-shop of the IARLJ in Berlin in May 2007, who conceded, that he never had to look up the Regulation in his daily work so far). In the following I want to mention only some main issues, that had been subject of discussion and decisions in Austrian adjudication.
2.General principles (Chapter II of the Regulation)
2.1 Article 3
According to Art. 3 (1) the application of a third-country national shall be examined by a single Member State, which shall be the one, which the criteria set out in Chapter III of the Regulation indicate is responsible. Still in Art. 3 (2) the Dublin II Regulation grants the right of a Member State to take charge of an asylum application lodged with it, even if it is not its responsibility under the criteria set out in the Regulation (Sovereignty Clause).
A large part of the Austria case law relates to theses provisions. In permanent jurisdiction Austria applies the „sovereignty clause“, if the asylum-seekers’s transfer to the Member State responsible under the criteria set out in the Regulation would in itself be or result in a risk of a violation of Articles 3 and 8 of the European Convention of Human Rights (ECHR), i.e. if the asylum-seeker would have to expect inhuman or degrading treatment or punishment or if transfer would lead – in violation of the principle of non-refoulement – to chain deportation. This is, of course, a delicate issue, as the Dublin system – as forementioned – is based on the assumption that all Member States can be considered as „safe“ for third-country nationals, and Austrian judges do not appreciate to assess the asylumpractice in other Member States. However, with regard to the ECHR, which is also part of the Austrian Constitution, the Austrian Constitutional Court and the High Administrative Court correspond in jurisdiction, that Austrian asylum authorities and tribunals have to consider the individual and actual situation, an asylum-seeker has to expect, if he or she is transferred to the responsible Member State, in case the asylum-seeker has shown substantial grounds for believing, that there might be a risk that could reach the threshold of Art. 3 ECHR. In such a case Austria would be obliged to apply the „sovereignty clause“. Consequently Austrian tribunals have to examine the risk of chain deportation or the quality of reception conditions (especially for minor or sick asylum-seekers) in other Member States. Regularly this examination does not lead to the application of the „sovereignty clause“, but the procedures take a long time – sometimes too long, to transfer the asylum-seeker to the responsible Member state. After a procedure that may have taken several years, the reason for not transferring an asylum-seeker does not so much lie in Art. 3 ECHR but - because of the high level of integration reached by that time - rather in Art. 8 ECHR.
Under the aspect of „effet utile“ of Community Law Art. 3 (1) and (2) of the Regulation might also raise the question of a limitation to the rights of Member States to apply the „sovereignty clause“, especially if the asylum-seeker has gone through an asylum procedure in another Member State before he applied for asylum in Austria. So far, the Austrian High Administrative Court has never decided that the application of the „sovereignty clause“ by Austrian asylum authorities or tribunals would have exceeded the limitation of „effet utile“. In my opinion, this view is evidently correct even in cases of serial asylum applications within the territory of the European Union, as long as a transfer of the asylum-seeker to the responsible Member State (Art. 16 (1) (e)) would really be in contradiction to fundamental human rights.
2.2. Art. 4 (3) and Art. 14
Art. 4 (3) of the Regulation states, that for the purpose of this Regulation, the situation of a minor who is accompanying the asylum-seeker and meets the definition of a family member set out in Art. 2, point (1), shall be indissociable from that of his parent or guardian and shall be a matter for the Member State responsible for examining the application for asylum of that parent or guardian, even if the minor is not individually an asylum-seeker. The same treatment shall be applied to children born after the asylum-seeker arrives in the territory of the Member States (...).
Art. 14 of the Regulation deals with the situation that several family members submit asylum applications in the same Member State simultaneously or around the same time, and where the criteria set out in the Regulation would lead to the separation of the family. In this situation the Member State responsible shall be determined on the basis of the following provisions:
(a)responsibility for examining the applications for asylum of all the members of the family shall lie with the Member State which the criteria indicate is responisble for taking charge of the largest number of family members;
(b)failing this, responsiblity shall lie with the Member State which the criteria indicate is responsible for examining the application of the oldest of them.
The interpretation of these provisions in their relation to each other had to be considered by the Austrian High Administrative Court in the following case:
A male asylum-seeker from Chechnya (the oldest family member) lodged an asylum application in the Czech Republic before he entered Austrian territory. His wife left Chechnya a short while after her husband, and arrived in Austria via Slovakia. EURODAC showed that she had been registered as an asylum-seeker in Slovakia. In Austria the couple met again and a child was born. The three family members claimed asylum in Austria.
Leaving Art. 4 (3) and Art. 14 out of consideration the criteria set out in the Dublin II Regulation would have led to a separatiion of the family, as the husband would have to be dealt with by the Czech Republic , whereas Slovakia would be responsible for the application of his wife and Austria for that of their child. There ist no doubt that – as family unity is a fundamental principle in the Dublin system – only one Member State should be determined to examine all the applications. In the given case Art. 14 (a) is inapplicable as there is no "largest number of family members" that has to be taken charge of by one Member State. Therefore, the responsibility has to be determined according to Art. 14 (b) (oldest family member) and thus lies with the Czech Republic.
Would it make a difference, had the wife delivered her baby in Slovakia before they all met in Austria (version No. 1)? Or would the result be a different one if the couple would have got twins instead of one child in Austria after their arrival (version No. 2)?
At least it seems so, because Art. 4 (3) stipulates, that for the purpose of the Regulation the situation of a minor who is accompanying the asylum-seeker and meets the definition of a family member shall be indissociable from that of his parent and shall be a matter for the Member State responsible for examining the application for asylum of that parent. In combination with Art. 14 (a) in version No. 1 this might lead to the result, that responsibility for the whole family lies with Slovakia: the minor was accompanying his mother; his application would thus be a matter for Slovakia; as a result the responsibility for the largest number of family members lies with Slovakia. In version No. 2 Austria would be responsible for the largest number of family members (namely the two minors) – does this mean, that the whole family should stay in Austria? Such a result was disapproved of in the discussion by a majority, for it would turn the sense of Art. 4 (3) into the opposite to the effect, that the applications of the parents would be indissociable from those of their minors.
In fact, the Austrian High Administrative Court did not have to decide these versions of the case, but discussing the issue, it was considered that – as an effect of Art 4 (3) – minors should be left out of consideration in respect of Art. 14 (a) („largest number of family members“), in order to find homogeneous results in any constellation.
2.3. Art. 6
According to the second paragraph of Art. 6 the responsibility for the application of an unaccompanied minor shall - in the absence of a family member - lie with that Member State, where the minor has lodged it. A plain reading of this provision indicates that it overrules a request to take charge of an unaccompanied minor for any other reason (for example irregular border crossing or the issuance of a visa)2. According to this prima facie meaning, Austrian NGOs interpreted the provision to the effect, that Austria should be responsible for the application of an unaccompanied minor even in cases, where the minor had lodged a previous application in another Member State. Of course, this interpretation would prevent minors from the stress of transfers, even if these transfers are normally restricted to short distances. But this interpretation seems to be in contradiction to Art. 5 (2) of the Regulation, that stipulates, that the Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum-seeker first lodged his application with a Member State. Therefore, the Austrian High Adminstrative Court raised no objections against the transfer of minors to the Member State, where they had lodged previous applications, at least if a „best interest“ determination did not require an application of the „sovereignty clause“.
3.Procedural Questions
UNHCR recommends in the aformentioned Discussion Paper with repect to the examination of asylum claims, legal remedies and time limits as follows:
„1. A provision should be added to the Dublin II Regulation imposing an obligation on the responsible State not to remove an asylum-seeker before a full and fair examination of his of her asylum claim has taken place. ...
2. If the time limit for presenting an appeal against the rejection of the asylum application lapsed during the absence of an asylum-seeker from the territory of the State deemed responsible under Dublin II, s/he should have access to an appeal procedure upon return.
3. The Dublin II Regulation should oblige States to provide access to an effective legal remedy against transfer decisions and to remain in the Member State`s territory until a decision on an application for suspensive effect is taken.
4. Relevant information about the Dublin II system should be provided to asylum-seekers, ...
15. The time limits for transfers and for presenting a request to another Member State to take charge of an applicant should be reduced...“3
Actually, procedural questions seem to have just as much influence in the functionality of the Dublin system as the common interpretation of its general principles. The following two examples may show practical and jurisdictional problems in this context.
3.1. Consequences of wrong information to the requesting Member State?
An asylum-seeker from Georgia lodged his application in Austria in July 2005. He was interviewed by the asylum authorities and it was expressly pointed out to him, that he would receive his (first instance) decision shortly and therefore was obliged to notify an eventual change of his adress immediately. Nevertheless the asylum-seeker left his accomodation before receiving the decision and without any notice to the Austrian authorities and travelled – as was found out later – to the Netherlands, where he claimed asylum again. A request for taking him back was accepted by the Austrian authorities in accordance to Art.16 (1) c of the Regulation (Art. 16 (1) c states: „The Member State responsible for examinig an application for asylum under this Regulation shall be obliged to ... take back ... an applicant, whose application is under examination and who is in the territory of another Member State without permission“). This information to the Netherlands was – for whatever reason - actually wrong, because in the meantime, the Austrian asylum authority had made its first instance decision, had tried to deliver it to the (absent) asylum-seeker and the decision had become final under Austrian law (upon that, the risk of missing the time limit to present an appeal against the first instance decision is up to the asylum-seeker, if he ignores his obligation to notice a change of address to the Austrian authorities and they are not able to find out his new address by themselves). It thus would have been correct to accept the request in accordance to Art. 16 (1) (e) of the Regulation (Art. 16 (1) (e) states: „The Member State responsible for examining an application for asylum under this Regulation shall be obliged to take back ... a third-country national whose application it has rejected and who is in the territory of another Member State without permission.“). After the return of the asylum-seeker to Austria, his (new) asylum application was dismissed for reasons of „res iudicata“ (because he could not show any new aspects that had not been considered in the previous procedure). He appealed and argued, that Austria would be obliged to examine his following application because of the wrong information given to the Netherlands. This would have prevented the Netherlands to apply the „sovereignty clause“ – a possiblity they would have had in case of correct knowledge of the finalised procedure in Austria and in case the Dutch authorities feared that Austria might chain-deport the asylum-seeker. Actually, this case led to an intensive discussion at the Austrian High Administrative Court. It was considered, that the incorrect answer to the request of the Netherlands does not give the asylum-seeker an individual right that could prevail over Austrian law in a way that would make the "res iudicata - decision" obsolete. The only way for him to assert that the Austrian answer was wrong would have been an appeal against the transfer-decison in the Netherlands – but how could he have done so without knowing that the Austrian first instance decision had already become final? Such a result was not quite satisfying in principle – although the circumstances of the special case (the asylum claim was, even considering all the arguments in the applicant's remedy, found manifestly ill-founded) did not give room for further discussions on how to find a fair and acceptable solution.
3.2. How to find the responsible Member State in due time?
A Turkish asylum-seeker lodged his application in Austria in November 2006. He was in possession of a valid Hungarian (short-term) visa (Art. 9 (2)). Austria therefore called upon Hungary to take charge of the applicant. Hungary disagreed and argued that – referring to Art. 9 (3) (a) – the visa only had been issued by the Hungarian embassy, because the asylum-seeker could present a Romanian „residence permit“ valid until Oktober 2007. This answer led the Austrian authorities to ask Romania for taking back the applicant, but also Romania refused to do so, because the aforementioned „residence permit“ – as they pointed out – had never been issued for the applicant, but for a different person, and must therefore have been forged afterwards. When Austria confronted the Hungarian authorities with this information and again requested to take the asylum-seeker back, Hungary accepted – but acctually, the second Austrian request was sent to Hungary out of the time-limit of Art. 17 (1); consequently Austria would have become responsible for examination under Art. 17 (2) (Art. 17 (1) and (2) state: „ (1) Where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4 (2), call upon the other Member State to take charge of the applicant. (2) Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylum shall lie with the Memmber State of the applicant.“). This result, in my view, is not satisfactory either, for the only mistake Austrian authorities might have to be blamed for is, that they did not apply a re-examination under Art. 5 of the Commission Regulation (EC) No 1560/2003 of 2. September 2003, laying down detailed rules for the application of Council Regulation (EC) No 343/2003 (...) after receiving the first – negative – answer by the Hungarian authorities. But actually, at that point of time they had no information that could prove the Hungarian answer wrong.
4. Conclusion
We are expecting the report of the European Commission on the Dublin system to be published shortly. Maybe it will cover some of the aforementioned issues. Whith this paper I wanted to point out that there are aspects of the Dublin system, that could be subject to an improvement, maybe just by achieving a common interpretation of its provisions among judges of the Member States.
Some Remarks on the Interpretation of the Dublin II Regulation in Austrian Case-Law
European Association of Administrative JudgesAnnual Meeting and Workshop of the Working Party for Asylum and Immigration,
1. Introduction
On 18. February 2003 the Council of the European Union adopted the „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" (hereinafter referred to as the „Dublin II Regulation“). The main purpose of this Regulation is to determine rapidly the Member State responsible for examining an asylum application, to guarantee effective access to the asylum procedure and to prevent abuse in the form of multiple asylum applications.
The Dublin System is based on the assumption that all Member States respect the principle of non-refoulement and can thus be considered as „safe“ for third-country nationals. It further assumes that legal and practical harmonisation in the field of asylum has alredady beend achieved. In practice, however, the last-mentioned assumption has turned out to be too optimistic. UNHCR emphasized in its Discussion paper on the Dublin II Regluation, published in April 2006, that Member States still implement a variety of reception practices, and that they are far from a common interpretation of the refugee definiton and a common approach to the granting of international protection. This is – in the opinion of UNHCR - illustrated by the wide range of recognition rates in different Member States for asylum-seekers from a particular country of origin. These disparate practices result inter alia in secondary movements within the territory of the European Union. UNHCR expressed its concern, that the lack of harmonisation and inconsistent interpretation of the refugee definition given in Article 1 A of the 1951 Refugee Convention may lead to direct and indirect refoulement1.
With my paper I would like to contribute a little to the common interpretation of the Dublin II Regulation, by describing the Austrian position on the interpretation of the provisions of the Regulation, maybe as an input for further discussions. In fact, Austrian case-law, including the jurisdiction of the Austrian High Administrative Court (Verwaltungsgerichtshof), pays much attention to the Dublin II Regulation, perhaps more (somebody might say too much) than the courts in other Member States (I remember the comment of a German collegue at the work-shop of the IARLJ in Berlin in May 2007, who conceded, that he never had to look up the Regulation in his daily work so far). In the following I want to mention only some main issues, that had been subject of discussion and decisions in Austrian adjudication.
2.General principles (Chapter II of the Regulation)
2.1 Article 3
According to Art. 3 (1) the application of a third-country national shall be examined by a single Member State, which shall be the one, which the criteria set out in Chapter III of the Regulation indicate is responsible. Still in Art. 3 (2) the Dublin II Regulation grants the right of a Member State to take charge of an asylum application lodged with it, even if it is not its responsibility under the criteria set out in the Regulation (Sovereignty Clause).
A large part of the Austria case law relates to theses provisions. In permanent jurisdiction Austria applies the „sovereignty clause“, if the asylum-seekers’s transfer to the Member State responsible under the criteria set out in the Regulation would in itself be or result in a risk of a violation of Articles 3 and 8 of the European Convention of Human Rights (ECHR), i.e. if the asylum-seeker would have to expect inhuman or degrading treatment or punishment or if transfer would lead – in violation of the principle of non-refoulement – to chain deportation. This is, of course, a delicate issue, as the Dublin system – as forementioned – is based on the assumption that all Member States can be considered as „safe“ for third-country nationals, and Austrian judges do not appreciate to assess the asylumpractice in other Member States. However, with regard to the ECHR, which is also part of the Austrian Constitution, the Austrian Constitutional Court and the High Administrative Court correspond in jurisdiction, that Austrian asylum authorities and tribunals have to consider the individual and actual situation, an asylum-seeker has to expect, if he or she is transferred to the responsible Member State, in case the asylum-seeker has shown substantial grounds for believing, that there might be a risk that could reach the threshold of Art. 3 ECHR. In such a case Austria would be obliged to apply the „sovereignty clause“. Consequently Austrian tribunals have to examine the risk of chain deportation or the quality of reception conditions (especially for minor or sick asylum-seekers) in other Member States. Regularly this examination does not lead to the application of the „sovereignty clause“, but the procedures take a long time – sometimes too long, to transfer the asylum-seeker to the responsible Member state. After a procedure that may have taken several years, the reason for not transferring an asylum-seeker does not so much lie in Art. 3 ECHR but - because of the high level of integration reached by that time - rather in Art. 8 ECHR.
Under the aspect of „effet utile“ of Community Law Art. 3 (1) and (2) of the Regulation might also raise the question of a limitation to the rights of Member States to apply the „sovereignty clause“, especially if the asylum-seeker has gone through an asylum procedure in another Member State before he applied for asylum in Austria. So far, the Austrian High Administrative Court has never decided that the application of the „sovereignty clause“ by Austrian asylum authorities or tribunals would have exceeded the limitation of „effet utile“. In my opinion, this view is evidently correct even in cases of serial asylum applications within the territory of the European Union, as long as a transfer of the asylum-seeker to the responsible Member State (Art. 16 (1) (e)) would really be in contradiction to fundamental human rights.
2.2. Art. 4 (3) and Art. 14
Art. 4 (3) of the Regulation states, that for the purpose of this Regulation, the situation of a minor who is accompanying the asylum-seeker and meets the definition of a family member set out in Art. 2, point (1), shall be indissociable from that of his parent or guardian and shall be a matter for the Member State responsible for examining the application for asylum of that parent or guardian, even if the minor is not individually an asylum-seeker. The same treatment shall be applied to children born after the asylum-seeker arrives in the territory of the Member States (...).
Art. 14 of the Regulation deals with the situation that several family members submit asylum applications in the same Member State simultaneously or around the same time, and where the criteria set out in the Regulation would lead to the separation of the family. In this situation the Member State responsible shall be determined on the basis of the following provisions:
(a)responsibility for examining the applications for asylum of all the members of the family shall lie with the Member State which the criteria indicate is responisble for taking charge of the largest number of family members;
(b)failing this, responsiblity shall lie with the Member State which the criteria indicate is responsible for examining the application of the oldest of them.
The interpretation of these provisions in their relation to each other had to be considered by the Austrian High Administrative Court in the following case:
A male asylum-seeker from Chechnya (the oldest family member) lodged an asylum application in the Czech Republic before he entered Austrian territory. His wife left Chechnya a short while after her husband, and arrived in Austria via Slovakia. EURODAC showed that she had been registered as an asylum-seeker in Slovakia. In Austria the couple met again and a child was born. The three family members claimed asylum in Austria.
Leaving Art. 4 (3) and Art. 14 out of consideration the criteria set out in the Dublin II Regulation would have led to a separatiion of the family, as the husband would have to be dealt with by the Czech Republic , whereas Slovakia would be responsible for the application of his wife and Austria for that of their child. There ist no doubt that – as family unity is a fundamental principle in the Dublin system – only one Member State should be determined to examine all the applications. In the given case Art. 14 (a) is inapplicable as there is no "largest number of family members" that has to be taken charge of by one Member State. Therefore, the responsibility has to be determined according to Art. 14 (b) (oldest family member) and thus lies with the Czech Republic.
Would it make a difference, had the wife delivered her baby in Slovakia before they all met in Austria (version No. 1)? Or would the result be a different one if the couple would have got twins instead of one child in Austria after their arrival (version No. 2)?
At least it seems so, because Art. 4 (3) stipulates, that for the purpose of the Regulation the situation of a minor who is accompanying the asylum-seeker and meets the definition of a family member shall be indissociable from that of his parent and shall be a matter for the Member State responsible for examining the application for asylum of that parent. In combination with Art. 14 (a) in version No. 1 this might lead to the result, that responsibility for the whole family lies with Slovakia: the minor was accompanying his mother; his application would thus be a matter for Slovakia; as a result the responsibility for the largest number of family members lies with Slovakia. In version No. 2 Austria would be responsible for the largest number of family members (namely the two minors) – does this mean, that the whole family should stay in Austria? Such a result was disapproved of in the discussion by a majority, for it would turn the sense of Art. 4 (3) into the opposite to the effect, that the applications of the parents would be indissociable from those of their minors.
In fact, the Austrian High Administrative Court did not have to decide these versions of the case, but discussing the issue, it was considered that – as an effect of Art 4 (3) – minors should be left out of consideration in respect of Art. 14 (a) („largest number of family members“), in order to find homogeneous results in any constellation.
2.3. Art. 6
According to the second paragraph of Art. 6 the responsibility for the application of an unaccompanied minor shall - in the absence of a family member - lie with that Member State, where the minor has lodged it. A plain reading of this provision indicates that it overrules a request to take charge of an unaccompanied minor for any other reason (for example irregular border crossing or the issuance of a visa)2. According to this prima facie meaning, Austrian NGOs interpreted the provision to the effect, that Austria should be responsible for the application of an unaccompanied minor even in cases, where the minor had lodged a previous application in another Member State. Of course, this interpretation would prevent minors from the stress of transfers, even if these transfers are normally restricted to short distances. But this interpretation seems to be in contradiction to Art. 5 (2) of the Regulation, that stipulates, that the Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum-seeker first lodged his application with a Member State. Therefore, the Austrian High Adminstrative Court raised no objections against the transfer of minors to the Member State, where they had lodged previous applications, at least if a „best interest“ determination did not require an application of the „sovereignty clause“.
3.Procedural Questions
UNHCR recommends in the aformentioned Discussion Paper with repect to the examination of asylum claims, legal remedies and time limits as follows:
„1. A provision should be added to the Dublin II Regulation imposing an obligation on the responsible State not to remove an asylum-seeker before a full and fair examination of his of her asylum claim has taken place. ...
2. If the time limit for presenting an appeal against the rejection of the asylum application lapsed during the absence of an asylum-seeker from the territory of the State deemed responsible under Dublin II, s/he should have access to an appeal procedure upon return.
3. The Dublin II Regulation should oblige States to provide access to an effective legal remedy against transfer decisions and to remain in the Member State`s territory until a decision on an application for suspensive effect is taken.
4. Relevant information about the Dublin II system should be provided to asylum-seekers, ...
15. The time limits for transfers and for presenting a request to another Member State to take charge of an applicant should be reduced...“3
Actually, procedural questions seem to have just as much influence in the functionality of the Dublin system as the common interpretation of its general principles. The following two examples may show practical and jurisdictional problems in this context.
3.1. Consequences of wrong information to the requesting Member State?
An asylum-seeker from Georgia lodged his application in Austria in July 2005. He was interviewed by the asylum authorities and it was expressly pointed out to him, that he would receive his (first instance) decision shortly and therefore was obliged to notify an eventual change of his adress immediately. Nevertheless the asylum-seeker left his accomodation before receiving the decision and without any notice to the Austrian authorities and travelled – as was found out later – to the Netherlands, where he claimed asylum again. A request for taking him back was accepted by the Austrian authorities in accordance to Art.16 (1) c of the Regulation (Art. 16 (1) c states: „The Member State responsible for examinig an application for asylum under this Regulation shall be obliged to ... take back ... an applicant, whose application is under examination and who is in the territory of another Member State without permission“). This information to the Netherlands was – for whatever reason - actually wrong, because in the meantime, the Austrian asylum authority had made its first instance decision, had tried to deliver it to the (absent) asylum-seeker and the decision had become final under Austrian law (upon that, the risk of missing the time limit to present an appeal against the first instance decision is up to the asylum-seeker, if he ignores his obligation to notice a change of address to the Austrian authorities and they are not able to find out his new address by themselves). It thus would have been correct to accept the request in accordance to Art. 16 (1) (e) of the Regulation (Art. 16 (1) (e) states: „The Member State responsible for examining an application for asylum under this Regulation shall be obliged to take back ... a third-country national whose application it has rejected and who is in the territory of another Member State without permission.“). After the return of the asylum-seeker to Austria, his (new) asylum application was dismissed for reasons of „res iudicata“ (because he could not show any new aspects that had not been considered in the previous procedure). He appealed and argued, that Austria would be obliged to examine his following application because of the wrong information given to the Netherlands. This would have prevented the Netherlands to apply the „sovereignty clause“ – a possiblity they would have had in case of correct knowledge of the finalised procedure in Austria and in case the Dutch authorities feared that Austria might chain-deport the asylum-seeker. Actually, this case led to an intensive discussion at the Austrian High Administrative Court. It was considered, that the incorrect answer to the request of the Netherlands does not give the asylum-seeker an individual right that could prevail over Austrian law in a way that would make the "res iudicata - decision" obsolete. The only way for him to assert that the Austrian answer was wrong would have been an appeal against the transfer-decison in the Netherlands – but how could he have done so without knowing that the Austrian first instance decision had already become final? Such a result was not quite satisfying in principle – although the circumstances of the special case (the asylum claim was, even considering all the arguments in the applicant's remedy, found manifestly ill-founded) did not give room for further discussions on how to find a fair and acceptable solution.
3.2. How to find the responsible Member State in due time?
A Turkish asylum-seeker lodged his application in Austria in November 2006. He was in possession of a valid Hungarian (short-term) visa (Art. 9 (2)). Austria therefore called upon Hungary to take charge of the applicant. Hungary disagreed and argued that – referring to Art. 9 (3) (a) – the visa only had been issued by the Hungarian embassy, because the asylum-seeker could present a Romanian „residence permit“ valid until Oktober 2007. This answer led the Austrian authorities to ask Romania for taking back the applicant, but also Romania refused to do so, because the aforementioned „residence permit“ – as they pointed out – had never been issued for the applicant, but for a different person, and must therefore have been forged afterwards. When Austria confronted the Hungarian authorities with this information and again requested to take the asylum-seeker back, Hungary accepted – but acctually, the second Austrian request was sent to Hungary out of the time-limit of Art. 17 (1); consequently Austria would have become responsible for examination under Art. 17 (2) (Art. 17 (1) and (2) state: „ (1) Where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4 (2), call upon the other Member State to take charge of the applicant. (2) Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylum shall lie with the Memmber State of the applicant.“). This result, in my view, is not satisfactory either, for the only mistake Austrian authorities might have to be blamed for is, that they did not apply a re-examination under Art. 5 of the Commission Regulation (EC) No 1560/2003 of 2. September 2003, laying down detailed rules for the application of Council Regulation (EC) No 343/2003 (...) after receiving the first – negative – answer by the Hungarian authorities. But actually, at that point of time they had no information that could prove the Hungarian answer wrong.
4. Conclusion
We are expecting the report of the European Commission on the Dublin system to be published shortly. Maybe it will cover some of the aforementioned issues. Whith this paper I wanted to point out that there are aspects of the Dublin system, that could be subject to an improvement, maybe just by achieving a common interpretation of its provisions among judges of the Member States.