The Dublin II Regulation: 10 Years On and Little to Celebrate

ECRE Weekly Bulletin 22 February 2013

For many, Dublin is a city of literature and culture. However, for those fleeing violence and persecution and seeking protection in Europe, the mere mention of “Dublin” evokes feelings of injustice and undue suffering. On the 10th anniversary of the Dublin Regulation, that identifies which European State is responsible for examining an asylum application, ECRE, Forum Réfugiés-Cosi, the Hungarian Helsinki Committee andproject partners published a comparative report on its application in Austria, Bulgaria, France, Germany, Greece, Hungary, Italy, Slovakia, Spain, Switzerland and the Netherlands. The research reveals that the Dublin system, which Member States see as a pillar of the Common European Asylum System, continues to operate to the detriment of refugees, causing families to be separated, an increased use in detention and hindering their access to the asylum procedure.

Respect for the fundamental rights of asylum seekers should be the central element to a humane common asylum policy. This new research shows once again that the system in its current functioning contravenes these rights for asylum seekers subjected to it. Indeed, far from its objective of guaranteeing rapid access to an asylum procedure, the Dublin system leads to considerable delays in the examination of asylum claims, or in the worst case, their claims never being examined, perpetuating the situation of ‘asylum seekers in orbit’. Having sought protection in Europe, such asylum seekers are often left in a prolonged state of anxiety and uncertainty with their lives put ‘on hold’ due to the automatic application of this legal instrumentIn terms of access to reception conditions, asylum seekers in the Dublin procedure are on an unequal footing right from the start, sometimes leading to homelessness and destitution both in the requesting and receiving Member State. Our research also demonstrates that there is a lack of safeguards in the Dublin procedure and practical obstacles hamper access to judicial remedies. Asylum seekers subjected to the Dublin Regulation are frequently detained in nine out of the eleven Member States surveyed.

The Dublin Regulation has two discretionary provisions, commonly referred to as the sovereignty clause and the humanitarian clause, which can be applied for humanitarian or other reasons for Member States to take over responsibility for an asylum claim. This report shows how infrequently these provisions are applied to remedy injustices caused by the operation of binding criteria. Often courts, both at the national and European level, have been required to intervene to protect the rights of refugees. For example, just last week the European Court of Human Rights issued an interim measure under Rule 39 of the Rules of the Court to prohibit the return from Germany of a Somali family with three young children to Italy under the Dublin Regulation.

The Dublin Regulation is also ineffective for Member States with, on average across Europe for 2009 and 2010, less than 35% of accepted requests resulting in transfers. Similarly, the fact that there has never been a comprehensive audit of the costs of the Dublin system is difficult to reconcile in this time of austerity. However, States have no political will to change the underlying principles of the Dublin system. The soon-to-be adopted recast of the Dublin Regulation will significantly improve safeguards for those within the Dublin system but the principles remain the same. The recast Regulation will also introduce an Early Warning System that has the potential to be built into a permanent ‘health check’ of the Common European Asylum System to address serious deficiencies in Member State reception conditions and asylum systems, if fully resourced and implemented correctly.

Despite these positive developments, interim reforms will not address all of the inherent flaws in the Dublin system, which establishes that, as a general rule, the first EU Member State that an asylum seeker enters should be the one to examine the asylum application. ECRE and partner organizations believe that ultimately the underlying principles of this system need to be fundamentally revised to take into account asylum seekers’ connections with particular Member States.

The Dublin II Regulation: Lives on Hold comparative report was produced by the Dublin transnational network project co-ordinated by Forum Réfugiés -Cosi in collaboration with ECRE, the Hungarian Helsinki Committee and national partners. For further information seewww.dublin-project.eu

 

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