EU Developments: A Closer Look at the Dublin Regulation University of Oslo 14 March 2007

EU developments From Schengen to Amsterdam From Tampere to the Hague Establishment of a Common European Asylum System (CEAS) Political trends

Asylum and Migration policy (Hague programme) Root causes of migration Entry and admission policies Integration policies Return policies

A Common European Asylum System (CEAS) Qualification Directive (2004) Procedures Directive (2005) Dublin Regulation (2003) Reception Conditions Directive (2003) Temporary Protection Directive (2001) Refugee Fund ( )

Genesis regarding distribution of asylum seekers UNHCR, 1970s onwards Council of Europe ( ) Europe in the 1980s: - Increase in number of asylum seekers - ”Jet Age Refugees” Schengen cooperation

Genesis cont. Schengen convention, (1990/1995) chapter 7 Dublin convention (1990/1998) Bilateral and other regional agreements London Resolutions (1992) Amsterdam treaty, (1997/1999) Dublin regulation (2003 Feb./Sept.) Eurodac Regulation (2003)

Why did the Dublin convention not work? Lack of will? Slowness in processsing? Unfair responsibility sharing? Impossibility in defining who had sought asylum elsewhere?

Dublin II Amsterdam treaty article 63 Tampere conclusions CEAS Eurodac

Object and Purpose Determine which country is responsible for an asylum request Avoid ”asylum shopping” Ensure examination of application in one country, but only one Avoid ”refugee in orbit situations” Responsibility sharing?

Which countries are in ”the club”? EUs MS (old and new) UK and Ireland have opted in Denmark (since 2006) Norway Iceland Switzerland (2008?) Liechtenstein (2008?)

Main differences Dublin I and II Shorter deadlines Focus on principle of family unity Focus on children EURODAC In the making: VIS (2007)

Dublin II Basics Preamble puts emphasis on: 1951 Convention Respect for principle of non-refoulement Other instruments of international law Charter of Fundamental Rights of the EU Art. 18 right to asylum Art. 19 on non-refoulement, not mentioned

Hierarchy of Criteria Article 5 The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter

Article 6 Unaccompanied Minor Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor.

Cont. Article 6 2nd paragraph In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum.

Article 7 Family Unity Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire

Article 8 Family Unity If the asylum seeker has a family member in a Member State whose application has not yet been the subject of a first decision regarding the substance, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire.

Article 9 Residence Permit and Visa Paragraph 1 Where the asylum seeker is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for asylum.

Cont. Article 9 Paragraph 2 Where the asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum, unless the visa was issued when acting for or on the written authorisation of another Member State.

Cont. Article 9 Paragraph 5 The fact that the residence document or visa was issued on the basis of a false or assumed identity or on submission of forged, counterfeit or invalid documents shall not prevent responsibility being allocated to the Member State which issued it.

Article 10 Irregular Border Crossing Paragraph 1 Where it is established, on the basis of proof or circumstantial evidence…that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum.

Cont. Article 10, paragraph 1 This responsibility shall cease 12 months after the date on which the irregular border crossing took place.

Cont. Article 10 Illegal stay Paragraph 2 When a Member State cannot or can no longer be held responsible in accordance with paragraph 1, and where it is established,…that the asylum seeker…has been previously living for a continuous period of at least five months in a Member State, that Member State shall be responsible for examining the application for asylum.

Article 12 In Transit Where the application for asylum is made in an international transit area of an airport of a Member State by a third-country national, that Member Satte shall be responsible for examining the application.

Article 13 ”First country of asylum” Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it.

How does it work in practice? ”Take Back” ”Take charge” Eurodac Vis

Cont. How does it work in practice? Common understanding of refugee law Common standards in reception conditions Mutual trust Foreign relations

Take Back/Take Charge ”Take back” in case a person has applied for asylum in another MS, no deadline, answer required within 1 month cf Article 20(1)(b) ”Take charge” in case has not applied for asylum, but other circumstances imply responsibility 3 months deadline cf Article 17, answer required within 2 months Return within 6 months cf. Art. 19(3) and Art. 20(1)(d)

Implications for States Burden or Burden Sharing?

Implications for Asylum Seekers Loss of free choice Loss of freedom Loss of access to procedures and protection Refoulement Application of ”safe third country concept”

Article 3, paragraph 3 ”Safe third country concept” Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention.

Non refoulement principle Dublin mechanism allows no derogation cf. Preamble Article 33 (1) of 1951 Conv. No contracting State shall expel or return (”refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life of freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Other sources pertaining to the Non-refoulement principle ECHR Art. 3 and its interpretation Torture convention. Art. 3 CPR Art. 7 Qualification directive Art. 21 EUs HR Charter Art. 19 Customary Law

Relevant Strasbourg Case Law Cruz Varas vs. Sweden (1991) Vilvarajah et. Al. Vs. UK (1991) Ahmed vs. Austria (1996) Chahal vs.UK (1996) H.L.R. vs.France (1997) D vs. UK (1997) Soering vs.UK (1989) T.I. vs UK (2000) Ramzey vs.Holland

Article 15 Humanitarian Clause Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations.

Cont. Article 15 In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

Article 3, paragraph 2 ”Sovereignty Clause” …each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation.

When in doubt: USE THE HUMANITARIAN CLAUSE USE THE SOVEREIGNTY CLAUSE DISREGARD FOREIGN POLICY IMPLICATIONS IF NECESSARY

Critisisms UNHCR, ECRE 2006 Widely divergent interpretations Art 3(2) used as accelerated procedure, not as safeguard Art 6 not applied and vulnarability of children not taken into consideration Art 3(2) and art. 15 not widely used Non access to procedures

Criticisms cont. Serious differences between countries ad CEAS Application of Qualification directive Application of Reception Conditions Directive Interpretation of non refoulement principle Use of Safe third country concept Appeal illusory

Criticism cont. Increased use of detention in Dublin cases Lack of information to asylum seekers Lack of reciprocal information between states

Commission role Report on application of Dublin, end March? Green book 2007 Evaluation of 10 directives