Basic information

Dublin system is a designation for a set of rules that determine one state that is responsible for issue of a decision in merits on an application for asylum (application for international protection)¹, i.e., assessing whether an applicant meets the criteria for being granted asylum, i.e. refugee status.

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 ¹⁾ Act No. 325/1999 Coll., on asylum and amendments to Act No. 283/1991 Coll., on the Police of the Czech Republic, as amended (the Asylum Act), which has been effective since 1 September 2006 uses the terminology “applicant for international protection” and “application for international protection” as opposed to the original terminology of “applicant for asylum” and “application for asylum”. This change was required by the implementation of Council Directive No. 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Council Regulation (EC) No. 343/2003 (known as the Dublin II Regulation) uses the terminology “application for asylum” and “asylum seeker” and for this reason this designation is maintained in relation to the Dublin system.

Objective

The objective of Dublin system is to eliminate a phenomenon known as “asylum shopping”, i.e., to prevent situations wherein an alien applies for asylum in several Member States, either in the same time or successively, and these states then carry out asylum proceedings, either simultaneously or successively, in order to make a decision on the application for asylum. The purpose of the system is therefore to determine following the submission of the asylum application only one Member State, which will examine the application for asylum submitted and will adopt a decision on this matter. By determining only one Member State responsible for examining an application for asylum, occurrence of the “refugee in orbit” phenomenon will be limited in the same time. This term pertains to situations when, due to the application of the safe third country institute, no state acknowledges its responsibility with regard to examining an application for asylum that has been lodged in merits. From the perspective of asylum seekers, Dublin system generally means that an alien has in general the right to have his/her application for asylum examined in merits only by one Member State (“One Chance Only” principle).

History

The question of who is responsible for examining an application for asylum was first addressed by Schengen Implementation Agreement, which was signed in 1990 in relation to realisation of freedom of movement for individuals within the territories of the contracting states. This document established fairly detailed rules for determination of the contracting state that is responsible for examining an application for asylum lodged in the territories of these states. As, at that time, the majority of Member States of the European Communities were not contracting parties to both Schengen treaties and given the necessity of resolving the issues connected with a significant influx of asylum seekers, the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (known as Dublin Convention) was adopted that same year. Dublin Convention entered into force on 1 September 1997 and all of the EU Member States at that time, as well as Norway and Iceland, became contracting parties to the convention.

With the adoption of Amsterdam Treaty, a significant portion of the cooperation in the areas of justice and internal affairs, including common visa, asylum and immigration polices, were transferred to the first (community) pillar of the European Communities. The Amsterdam Treaty established time limits for adopting community legislation with regard to the above-specified areas. As far as common asylum policy is concerned, Article K.1 of Amsterdam Treaty (Article 63 of the Treaty Establishing the European Community) established the obligation to adopt community legislation addressing the relevant issues, including the definition of criteria that would determine the responsibility of a Member State for examining an application for asylum lodged by a third country national, within a period of five years of the date the treaty entered into force. In accordance with this obligation, the Council (EC) adopted Regulation No. 343/2003 on 18 February 2003, which defines the criteria and mechanisms to be applied for the purpose of determining the state responsible for examining an application for asylum lodged in any of the member states of the European Communities (also known as Dublin II Regulation). In practice, Dublin II Regulation fully replaced Dublin Convention and is now considered to be the backbone of entire Dublin system.

Council Regulation (EC) No. 343/2003

Currently, pursuant to Dublin II Regulation, every Member State of EU (as well as Norway, Iceland and Switzerland) is obliged to determine which Member State is responsible for examining an application for asylum lodged by a third country national in its territory. The responsible Member State is determined according to objective and hierarchically structured criteria specified in the regulation. The sovereign right of each Member State to examine an application for asylum lodged in its territory is still maintained, even though another Member State is according to the criteria defined in the regulation responsible for its examination.

The criteria for determining the Member State responsible for examination of an application for asylum are applied in the order in which they are set out in the regulation (Article 5 Paragraph 1), whereby the situation that exists at the moment that the first application for asylum is lodged is decisive for determination of the Member State responsible (Article 5 Paragraph 2).

The criteria can be separated into several groups:

1. Family ties:  Responsible is the state in which a member of the asylum seeker’s family is staying legally. Emphasis is placed especially on situation of asylum seekers who are minors and are not accompanied by a legal representative (Articles 6, 7, 8, and 14 of the regulation);
2. Visa or residence permit: Responsible is the state that has issued a residence permit or visa to an asylum seeker (Article 9);
3. Irregular entry and residence: Responsible is the state whose borders the asylum seeker crossed irregularly coming from a third country or, if it cannot be determined how the asylum seeker arrived in the territory of the Member States, responsible state is the one in which the asylum seeker has been staying irregularly for a period of at least five months (Article 10);
4. Visa waiver: Responsible is the state that the asylum seeker entered and in which the need of the asylum seeker to have a visa is waived (Article 11);
5. First application for asylum lodged: Responsible is the state in which the asylum seeker first lodged an application for asylum (Articles 12 and 13).

Any Member State can, for humanitarian reasons and on the basis of a request of another Member State, also take charge of an asylum seeker and examine the application for asylum lodged thereby (Article 15).

The Member State that is responsible for examining an application for asylum in accordance with the criteria set forth in the regulation is obliged to:

1)take charge of an asylum seeker who has lodged an application for asylum in another Member State and complete the examination of the application for asylum lodged thereby (Article 16 par. 1 letter a) and b));
2)take back into its territory an asylum seeker whose application is under examination and who is staying in the territory of another Member State without permission (Article 16 par. 1 letter c));
3)take back an asylum seeker who has withdrawn the application under examination and lodged an application in another Member State (Article 16 par. 1 letter d)); and
4)take back a third country national whose application for asylum it has rejected and who is staying in the territory of another member state without permission (Article 16 par. 1 letter e)).

The obligation of a Member State to take charge of an asylum seeker ceases in the event that another Member State issues a visa or residence permit to the applicant. The obligation also ceases in the event that it is established that an asylum seeker left the territory of EU Member States for a period of more than three months. Last but not least, the obligations specified in points 3 and 4 above cease once the responsible Member State made all possible steps to ensure that the alien could travel back to the country of origin or to a third country where the alien can travel legally.

In addition to the substantive legal rules specified above, the regulation also includes a procedural section. For the purposes of realization of the responsible Member State’s obligation to take back or to take charge of the asylum applicant into its territory (see above), the other Member States must make a request to take charge of an asylum seeker (refer to point 1) or a request to take back an asylum seeker (refer to points 2 through 4) to the responsible Member State. The regulation establishes time limits wherein the request for taking charge must be made as well as the time limits within which a reply to a request for taking charge or taking back must be given. The expiration of these time limits with no action has substantive legal consequences. If a request for taking charge is not made within the designated time limit, the Member State that missed the deadline becomes the responsible Member State. Likewise, if a reply to a request for taking charge or taking back is not given within the designated time limit it is understood that the requested Member State agrees with taking charge of or taking back the asylum seeker.

In cases wherein the asylum seeker is not staying in the Member State responsible for examining the application for asylum lodged thereby, the final phase of the process under Dublin II Regulation is a transfer of the asylum seeker to the state responsible for examining the asylum seeker’s application. The Member States’ obligation to execute the transfer is laid down by the article 19 par. 1 and 3 and article 20 par. 1 letter d) of the regulation. Once again, the regulation sets out the time limits for the conduct of the transfer, the rules for the counting and the prolonging of the time limits. If the time limit for performing the transfer expires with no action taken, the regulation provides that the responsibility for examining the application for asylum will be passed to the state that missed the deadline.

Dublin II Regulation also defines specific conditions under which it is possible for a Member State to obtain information on an asylum seeker from another Member State (Article 21). The regulation primarily specifies the information that can be obtained from a Member State without the asylum seeker’s consent as well as the information for which the asylum seeker’s explicit consent is required.

The regulation also addresses the issue of how time limits are calculated, the use of probative evidence, suspensive effect of legal remedies against a decision to transfer an asylum seeker, and certain other issues pertaining to the cooperation and communications among Member States during the application of the regulation. It also explicitly addresses the asylum seeker’s right to be informed.

More detailed rules for the application of Dublin II Regulation are set forth in Commission Regulation (EC) No. 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No. 343/2003. This regulation primarily addresses the manner in which requests for taking charge of or taking back an asylum seeker and requests for information are processed. It also addresses the issue of the practical performance of transfers of asylum seekers, ways and means of communication among the Member States and, not lastly, the mechanisms that are to be applied for settling disputes among Member States.

Current Development

On the basis of a self-evaluation of the Dublin system functionality [Report from the Commission to the European Parliament and Council on the Evaluation of the Dublin System – COM(2007) 299] the EC Commission decided to propose certain changes in Council Regulation (EC) No. 343/2003 and Council Regulation (EC) No. 2725/2000. The Commission  has presented proposals for change of both mentioned regulations on 3.12.2008 in the frame of so called first asylum package together with the proposal on change of  Reception Conditions Directive.^[1] During the course of the Czech Republic’s presidency of the Council of the European Union the negotiation of both proposals^[2] on the level of working party has already started.
  
On 15.9.2009 Commission presented next proposal for the change of the EURODAC regulation. This proposal shall enable the law enforcement authorities and EUROPOL to access EURODAC for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences.

1) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.

2) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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 (COM(2008)820);
 
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [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] (COM(2008)825)