Part 1
[1]
The objective of Council Regulation (EC) No 343/2003 of 18th February 2003 (Dublin II regulation) is to establish the criteria and mechanisms to determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third - country national. The aims of this regulation are to identify only one member State responsible, to establish time limit for determination it and to prevent “asylum shopping”.
The criteria for determining the Member State responsible are to be applied in the order in which they are presented in the Regulation and on the basis of the situation existing when the asylum seeker first lodged his/her application with a Member State.
They are the following:
1) criteria related to the principle of family unity.
Where the asylum seeker is an unaccompanied minor, the Member State responsible for examining his/her application is the Member State where a member of his/her family is legally present. In the absence of a family member, the Member State responsible is that where the minor has lodged his/her application for asylum.
2) criteria related to the issuance of residence permits or visas.
Where the asylum seeker is in possession of a valid residence document or visa, the Member State that issued it will be responsible for examining the asylum application.
3) criteria related to illegal entry or stay in a Member State.
Where the asylum seeker has irregularly crossed the border into a Member State, that Member State will be responsible for examining the asylum application.
4) criteria related to legal entry in a Member State.
Where a third - country national applies for asylum in a Member State where he/she is not subject to a visa requirement, that Member State will be responsible for examining the asylum application.
5) application in an international transit area of an airport.
Where a third-country national applies for asylum in an international transit area of an airport of a Member State, that Member State shall be responsible for examining the application.
6) default criteria.
If
no Member State can be designated as responsible for examining the
asylum application, the first Member State with which the asylum
application was lodged will be responsible for examining it.
In
addition, the Dublin II regulation contains an humanitarian clause,
specific rules to take charge or take back asylum seekers and to
exchange personal data concerning them.
In
conclusion, it must be remembered the Council Decision 2001/258/EC of
15th March 2001 concerning the conclusion of an Agreement between the
European Community and the Republic of Iceland and the Kingdom of Norway
concerning the criteria and mechanisms for determining the State
responsible for examining a request for asylum lodged. Council Decision
2006/188/EC of 21 February 2006 and Council Decision 2008/147/EC of 28
January 2008 regarding similar agreeement between European Community,
the Kingdom of Denmark and the Swiss Confederation.
Jurisprudence of the ECHR
One
of the more important decision of the Court of Justice of the European
Union regards the judgement in joined case C – 411/10 N.S. versus
Secretary of State for the home department and C – 493/10 M.E. and
others versus refugee application Commissioner, Minister for Justice,
Equality and law Reform.
In
the context of those cases, both the Court of Appeal of England and
Wales (United Kingdom) and the High Court (Ireland) ask the Court of
Justice whether the authorities of a Member State which should transfer
the applicants to Greece (the Member State responsible for the
examination of the asylum application under the Regulation) must first
check whether that State actually observes fundamental rights. They also
ask whether if that State does not observe fundamental rights those
authorities are bound to assume responsibility for examining the
application themselves.
On
21 December 2011, the Court holds that the Member States may not
transfer an asylum seeker to the Member State indicated as responsible
where they cannot be unaware that systemic deficiencies in the asylum
procedure and in the reception conditions of asylum seekers amount to
substantial grounds for believing that the asylum seeker would face a
real risk of being subjected to inhuman or degrading treatment.
The
Court adds that the Member State which should transfer the applicant to
the Member State responsible under the Regulation and which finds it is
impossible to do so, must examine the other criteria set out in the
Regulation, in order to establish whether one of the following criteria
enables another Member State to be identified as responsible for the
examination of the asylum application. In that regard, it must ensure
that it does not worsen a situation where the fundamental rights of that
applicant have been infringed by using a procedure for determining the
Member State responsible which takes an unreasonable length of time. If
necessary, it must itself examine the application.
Jurisprudence of the ECJ
The more important decisions of the European Court of human rights are the following.
1)
T.I. versus the United Kingdom: the applicant, a Sri - Lankan national,
left Germany and applied for asylum in the United Kingdom, since he
feared that in the case of his expulsion, the German authorities would
simply send him back to Sri Lanka. In the decision of 7th March 2000 the
Court considered the application inadmissible, because the risk that
Germany would return the applicant to Sri Lanka in violation of Article 3
had not been established.
2)
K.R.S versus the United Kingdom: an Iranian national made his way to
the United Kingdom after passing through Greece. In compliance with the
Dublin II Regulation, the applicant alleged that his expulsion from the
United Kingdom to Greece would be contrary to Article 3, because of the
situation of asylum seekers in Greece. In the decision of 2nd December
2008 the Court considered the application inadmissible, because it must
be presumed that Greece will comply with its obligations in respect of
returnees. The Court also noted that Greece did not remove people to
Iran.
3)
M.S.S. versus Belgium and Greece: The case concerns an Afghan asylum
seeker who lodged an asylum application in Belgium. Based on the Dublin
II Regulation Belgium sent him back to Greece, the country through which
he had irregularly entered the EU. In Greece he was placed in detention
twice, during which he was subjected to degrading detention
circumstances. After his release, he was abandoned to live on the
streets without any support by the Greek authorities. The question was
whether or not Belgium was allowed to transfer the applicant, being
aware of the structural shortcomings in the asylum procedure and of the
systematic problems in the detention and reception of asylum seekers in
Greece.
On 2nd July 2009 the Court decided to apply Rule 39 against Greece,
to the effect that he would not be deported to Afghanistan pending the
outcome of the proceedings before the Court.
The
court also adds the violations of article 3 (prohibition of inhuman or
degrading treatment or punishment) by Greece; article 13 (right to an
effective remedy) taken together with Article 3 by Greece because of the
deficiencies in the asylum procedure followed in the applicant’s case;
of article 3 by Belgium both because of having exposed the applicant to
risks linked to the deficiencies in the asylum procedure in Greece and
because of having exposed him to detention and living conditions in
Greece that were in breach of Article 3; article 13 taken together with
Article 3 by Belgium because of the lack of an effective remedy against
the applicant’s expulsion order; article 46 (Binding force and execution
of judgments): It was incumbent on Greece, without delay, to proceed
with an examination of the merits of the applicant’s asylum request that
met the requirements of the European Convention on Human Rights and,
pending the outcome of that examination, to refrain from deporting the
applicant.
In
conclusion, it must be remembered that there are currently about 960
cases pending before the Court concerning the application of the
“Dublin” Community law system to asylum seekers. They are mostly
applications lodged against the Netherlands, Finland, Belgium, the UK
and France.
[1] By Aurora Lento