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The Dublin IV Proposal

Same Philosophy, Same Problems?

Victor Stephany
European Law School
Maastricht University

Supervisor:
Prof. Dr. Hildegard Schneider

A thesis submitted in partial
fulfilment of the requirements for a
Master of European Law (free track) degree

August 2016

ACKNOWLEDGMENT

I would first like to thank my thesis supervisor Prof. Dr. Hildegard Schneider of the European
Law School at Maastricht University, who allowed this paper to be my own work, but steered
me in the right the direction.

I would also like to thank the experts who were involved in the realisation of this research
project, Dr. Sergio Carrera and Mr. Dersim Yabasun. Without their participation and input,
the drafting of the present paper could not have been successfully conducted.

Finally, I must express my very profound gratitude to my uncle Jeff Abrams and to my
godfather Luc Leens for providing me with unfailing support and continuous encouragement
through the process of researching and writing this thesis. This accomplishment would not
have been possible without them. Thank you.

Victor Stephany

ABSTRACT

This paper aims to analyse the recent proposal of the Commission for a recast of the Dublin
III Regulation (the Dublin IV Proposal). It will explain, in view of what has been done in the
past, that it is likely that the proposed regulation will encounter the same problems as its
predecessors and therefore fail to achieve its goals. To that end, a first part is dedicated to the
examination of the past and present Dublin legal framework: the Dublin Convention, the
Dublin II Regulation and the Dublin III Regulation. These pieces of legislation will be
reviewed from the angle of their efficiency and their compliance with human rights law: the
main impediments to the functioning of the Dublin system will be detailed, as well as
fundamental rights issues surrounding the mutual trust principle – at the core of the Dublin
scheme – and the position and condition of asylum seekers in procedures for international
protection. The Dublin IV Proposal is dissected from the same angle in a second part, which
will explain why the novelties introduced – greater coercion and establishment of a corrective
allocation mechanism – will not improve the effectiveness of the system while decreasing the
protection afforded to asylum seekers.

LIST OF ABBREVIATIONS

CEAS Common European Asylum System

CJEU Court of Justice of the European Union

CoE Council of Europe

CRC Committee on the Rights of the Child

DC 1990 Dublin Convention

DIVP Dublin IV Proposal

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECRE European Council on Refugees and Exiles

EP/PE European Parliament/Parlement européen

EU European Union

Eurodac European Automated Fingerprint Recognition System

SC 1990 Schengen Convention

TEU Treaty on the European Union

TFEU Treaty on the Functioning of the European Union

UN United Nations

UNHCR United Nations High Commissioner for Refugees

Victor Stephany (i6123480) Maastricht University

TABLE OF CONTENTS

INTRODUCTION ...................................................................................................................... 2
PART I. THE DUBLIN SYSTEM FROM A HISTORICAL PERSPECTIVE ......................... 4
1. FROM THE SCHENGEN AGREEMENTS TO THE DUBLIN CONVENTION ........... 4
1.1. The Schengen Agreements .......................................................................................... 4
1.2. The Dublin Convention ............................................................................................... 5
1.2.1. Responsibility ....................................................................................................... 6
1.2.2. Procedure .............................................................................................................. 7
1.2.3. Evaluation............................................................................................................. 8
1.2.3.1. Efficiency ...................................................................................................... 8
1.2.3.2. Human Rights .............................................................................................. 10
2. EUROPEAN HARMONISATION IN ASYLUM LAW: DUBLIN II ............................ 11
2.1. The CEAS ................................................................................................................. 11
2.2. The Dublin II Regulation .......................................................................................... 12
2.2.1. Responsibility ..................................................................................................... 13
2.2.2. Procedure ............................................................................................................ 14
2.2.3. Evaluation........................................................................................................... 14
2.2.3.1. Main issues identified.................................................................................. 14
2.2.3.2. Mutual trust in asylum law: case law of the ECtHR and the CJEU ............ 15
3. RECAST OF THE EUROPEAN ASYLUM FRAMEWORK: DUBLIN III .................. 18
3.1. Responsibility ............................................................................................................ 19
3.2. Procedure ................................................................................................................... 19
3.3. Evaluation.................................................................................................................. 19
3.3.1. Efficiency ........................................................................................................... 19
3.3.2. Human Rights ..................................................................................................... 22
PART II: THE DUBLIN IV PROPOSAL ............................................................................... 24
1. OVERVIEW OF THE PROPOSAL ................................................................................ 24
1.1. Responsibility ............................................................................................................ 24
1.1.1. First check by the State of application ............................................................... 25
1.1.2. Obligations of the applicant ............................................................................... 25
1.1.3. Hierarchy of criteria ........................................................................................... 26
1.1.4. Discretionary clause ........................................................................................... 26
1.2. Corrective allocation mechanism .............................................................................. 27
1.2.1. Registration and monitoring system ................................................................... 27
1.2.2. Triggering the corrective allocation mechanism ................................................ 27
1.3. Procedures ................................................................................................................. 28
1.3.1. Take charge requests and take back notifications .............................................. 28
1.3.2. Procedural safeguards......................................................................................... 29
2. CRITICAL APPRAISAL OF THE PROPOSAL ............................................................ 29
2.1. Efficiency .................................................................................................................. 29
2.2. Human Rights ............................................................................................................ 32
2.2.1. Remedies ............................................................................................................ 32
2.2.2. Sovereignty clause.............................................................................................. 34
2.2.3. Unaccompanied minors ...................................................................................... 35
2.2.4. Penalties for applicants....................................................................................... 36
2.2.5. Definition of family members ............................................................................ 39
CONCLUSION ........................................................................................................................ 40
BIBLIOGRAPHY .................................................................................................................... 42

1

In a second part.g. 2 . at an earlier stage. statistics and studies drafted by various stakeholders: EU institutions 1 Hereinafter the DIVP. This instrument is therefore a tool for the benefit of the Member States rather than a catalogue of basic rights granted to applicants for international protection.Victor Stephany (i6123480) Maastricht University INTRODUCTION It is an understatement that immigration has always been a significant challenge for the European Union (EU). Thus. in accordance with Article 78(2)(e) of the Treaty on the Functioning of the EU (TFEU). This modest contribution aims to examine the proposed measures regarding their objectives and the likelihood to achieve them. As this essay will demonstrate. For over 25 years the EU has struggled to find a solution for granting effective access to international protection procedures to asylum seekers who enter the EU. adopted in 2013. but now the issue has overwhelmed the community. In order to address identified shortcomings in the application of the Dublin III Regulation. a first part will review the current and former legal framework of the Dublin system. From a methodological point of view. in light of past experiences. follows the Dublin II Regulation (2003) and. The Dublin III Regulation. the Dublin IV Proposal will be examined and evaluated with respect to its (expected) efficiency and compliance with human rights standards.560 asylum claims have been lodged in Europe in 2015 and this figure is not likely to appreciably decrease in the near future. In addition to a continuing debate on the principle in all EU nations. information compiled in this paper has been found in reports. approximately 1. According to Eurostat. the Commission has recently presented a recast proposal (the Dublin IV Proposal1).321. the procedures set out for transfer of applicants and the evaluation of the application of the instrument under scrutiny. as well as their compliance with fundamental rights law. and for allocating them within the EU members. as regards the allocation of responsibility for applications for international protection. technical issues remain unsettled such as the distribution of applications for international protection between EU Member States. The legal framework dedicated for that objective is composed of the Dublin III Regulation which sets out criteria for the distribution of applicants between the Member States as well as procedures for their transfer. the Dublin Convention (1990). All these pieces of legislation have been criticised for similar reasons. the Dublin III and Dublin II Regulations and the Dublin Convention. e. their effectiveness and efficiency have frequently been called into question.

2 Hereinafter UNHCR. Relevant material also includes case law of the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). European Council on Refugees and Exiles3) and scientific research centres (Centre for European Policy Studies4). This essay is equally based on scientific literature and to a more limited extent on websites. 3 . international organisations and non-governmental organisations (United Nations High Commissioner for Refugees 2 . blogs and newspaper articles. 3 Hereinafter ECRE.Victor Stephany (i6123480) Maastricht University (Commission and European Parliament). 4 Hereinafter CEPS.

‘Dublin after Schengen: Allocating Responsibility for Examining Asylum Applications in Practice’ [1998] EIPASCOPE. Therefore. the Federal Republic of Germany and the French Republic. stronger judicial cooperation through a faster extradition system and transfer of enforcement of criminal judgments. 9 Schengen Convention. Luxemburg. The designated Member State is obliged to examine the claim and there is no room for the personal choice of the asylum seeker in the determination of the responsible State. enhanced police cooperation (including rights of cross-border surveillance and hot pursuit). 4 . the Netherlands. the Schengen Convention (SC) was signed and it came into force in 19956. 29(3). the Schengen Convention established a list of criteria for the allocation of responsibility to one single Member State for the examination of an asylum application. 8 ‘Asylum shopping’ means for the purposes of that paper the problem of multiple asylum claims. FROM THE SCHENGEN AGREEMENTS TO THE DUBLIN CONVENTION 1. it was incorporated into the acquis communautaire in 1999 with the Treaty of Amsterdam.Victor Stephany (i6123480) Maastricht University PART I. harmonisation of the conditions of entry and of the rules on visas for short stays. 6 Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union. simultaneously or successively lodged in different Member States by the same alien. The Schengen Agreements In 1985. Art. on the Gradual Abolition of Checks at Their Common Borders’ [1990] OJ L 239/19 (Schengen Convention). THE DUBLIN SYSTEM FROM A HISTORICAL PERSPECTIVE 1. It was developed separately from the EC. In order to address the difficulties of refugees in orbit7 and asylum shopping8. Belgium. 10 Clotilde Marinho and Matti Heinonen.1. 7 “Refugees in orbit” are refugees who are declined their claim for asylum in a Member State on the basis that they have already found another asylum Member State (see Khadija Elmadmad. 5 Other key rules adopted within the Schengen framework include: a common set of rules applying to people crossing the external borders of the EU Member States. In 1990. France and Germany signed the Schengen Agreements which established the Schengen area. Asile et réfugiés dans les pays afro-arabes (EDDIF 2002) 135). 2. If the Schengen Convention was initially only applicable in the contracting States. aimed at gradually abolishing internal border controls and establishing a common external border5. the Schengen Convention lays down rules on asylum which retain the principle that only one State shall be responsible for processing the asylum application of an alien9. rather than harmonising substantive or procedural rules on asylum10. as other Community Member States were reluctant to cease all checks at their borders. establishment and development of the Schengen Information System (SIS).

29(4) and 30(2). The contracting States have two possibilities to deviate from the foregoing criteria. 1. the refugee's father or mother (Schengen Convention. (v) where an application was first lodged and being processed. Art. 15 See Art. for humanitarian reasons based in particular on family or cultural grounds. Art.2. whereas the Convention entered into force on 1 October 1997 in Sweden and Austria and on 1 January 1998 in Finland (Marinho and Heinonen (n 10) 2). 5 . 14 Schengen Convention. (vi) and with which the application was lodged if none of the foregoing criteria was applicable12.Victor Stephany (i6123480) Maastricht University Responsibility therefore lies in the State (i) where a member of the alien’s family11 was already granted asylum. Art. 13 Schengen Convention. As the DC was based on the same principle as the Schengen Convention (one single Member State competent for dealing with an alien’s asylum application)15 and contained very similar provisions on the allocation of responsibility for an asylum application. 11 ‘Family member’ means the refugee's spouse or unmarried child who is less than 18 years old or. Art. 16 Protocol on the Consequences of the Dublin Agreement Coming into Effect for Some Regulations of the Schengen Supplementary Agreement’ [1994] (Bonn Protocol). 36. The DC entered into force seven years after its conclusion. 30(1). the former replaced the asylum provisions of the latter by means of the so-called Bonn Protocol of 199416. 17 It precisely entered into force on 1 September 1997 in the twelve European Union Member States which had originally signed the instrument. the EC adopted in 1990 the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. 35(2)). The second and more specific possibility is the humanitarian clause which enables the responsible State to ask. which entails that a State retains the right to process an application for asylum even if another Schengen State would be responsible according to the SC. if the refugee is an unmarried child who is less than 18 years old. (iii) which was entered legally without visa requirement. (ii) which issued a visa or residence permit to the asylum seeker. In that case the latter State shall be relieved of its obligations13. another Schengen State to examine the asylum application14. 12 Schengen Convention. 1. The Dublin Convention Confronted with the same challenges and sharing the ambition of establishing a borderless internal market. 3(2) of the DC. The first and general possibility is the sovereignty clause or opt-out clause. (iv) across whose external borders the asylum seeker illegally entered the Schengen Area. referred to as the Dublin Convention (DC) or Dublin I. Art. in 199717.

6 . 22 Ibid. unmarried minor children under eighteen. 24 UNHCR. 648. 20 DC. which relies on the fact that there is a common framework for the different national laws constituted by the Geneva Convention19. This system is therefore based on mutual confidence in each other’s legislation and adjudication processes. 23 Family member’ is defined by Article 4 of the DC as the spouse. See also Art. 5(4) of the DC under which already expired residence permit or visa may also be taken into account in some circumstances. 26 DC. Thirdly. ‘Conclusions of the Executive Committee No. 3(3) of the DC: ‘The criteria set out in Articles 4 to 8 shall apply in the order in which they appear’. a Member State which issued a valid visa is responsible26. The allocation criteria are founded on the authorisation principle: ‘the more a Member State has consented (explicitly or tacitly) to the penetration of its territory by an asylum-seeker.Victor Stephany (i6123480) Maastricht University 1. 19 Marinho and Heinonen (n 10) 3. in case of illegal entry. Secondly. This criterion meets the concern expressed by the UNHCR that States should facilitate the admission to their territory of at least the spouse and minor or dependent children of any person who was already granted asylum.1. Under Article 4 of the DC. The residence permit and visa criteria are subjected to several exceptions in cases where the applicant is in possession of more than one residence permit or visa27. 5(1). the entered Member State is responsible for examining the asylum application unless the applicant has lodged the application in another 18 See the wording of Art. a Member State which issued a valid residence permit is responsible25. ‘The 1990 Dublin Convention: A Comprehensive Assessment’ [1999] International Journal of Refugee Law 646. Thus. in the interest of family reunification and for humanitarian reasons24. 15 (XXX) – Refugees Without and Asylum Country’ [1979] available at www. 5(3) of the DC. The applicant must give her/his consent. Responsibility The DC sets out uniform criteria that determine which Member State is responsible for examining an asylum application in a hierarchical order18. 27 See Art. 10(1)(b). Intention of the applicant is not relevant for the responsibility determination process22. father or mother of the applicant if he/she is unmarried and minor under eighteen. the first criterion to determine which Member State is responsible for examining an asylum application is family unity. Art. The designated Member State has the obligation to carry out the whole process of asylum claim20. 25 DC.unhcr. where the applicant for asylum has a member of his family23 who has been granted international protection in a Member State and is legally resident there.org (10 April 2016). that Member State is responsible for examining the application.2. 5(2). Fourthly. Art. Art. 21 Agnès Hurwitz. It does not harmonise substantive and procedural rules of the Member States relating to asylum. the more it is responsible’21.

even though it would not be competent according to the criteria set out in the DC. 4(1)). Art. 29 DC. A Member State with which an application for asylum has been lodged may call upon to take charge of the applicant another Member State that it considers to be responsible (DC. in cases where none of the above criteria applies. it is to be considered as accepting the claim32. 32 That request must be formulated as quickly as possible and in any case within the six months following the introduction of the application. 31 Marinho and Heinonen (n 10) 3.2. in case of legal entry into the territory of a Member State. Fifthly. In case it does not react within that period. Once the period has passed. 30 DC.2. as long as he/she agrees. Art. The requested Member State has to provide an answer within three months of receipt of the claim. 8. A Member State responsible for an asylum application has the obligation to take back on request the applicant who is in another Member State irregularly pending the examination 28 DC. Art. provided that the applicant so desires. 1. based in particular on family or cultural grounds’. the choice of the applicant does not influence the determination of the responsible Member State: it is the conditions of his/her access to the EU and. the Member State responsible for the control of that entry is responsible for examining the asylum request29. Art. The humanitarian clause (Article 9 of the DC) authorises any Member State to accept the request of another Member State to examine an application ‘for humanitarian reasons. concerning provisions for the implementation of the Convention [1997] OJ L 281/01 (Decision No 1/97). 11)32. the first Member State with which the application for asylum is lodged is responsible for examining it30. Finally. 6. The opt-out clause (Article 3(4) of the DC) provides the sovereign right of a Member State to examine an application lodged by an alien. 7 .Victor Stephany (i6123480) Maastricht University Member State where he/she has been living for at least six months28. Once the request is accepted. the transfer of the asylum seeker should take place within one month and in any case no later than three months after receiving the claim (Decision No 1/97 of 9 September 1997 of the Committee set up by Article 18 of the DC of 15 June 1990. Procedure The DC sets out procedures for transfer of asylum seekers. Therefore. to a certain extent. responsibility for examining the application rests with the Member State in which the application was lodged. her/his personal conditions31. Art. 7(1). Member States may also derive their responsibility from the opt-out and the humanitarian clauses.

and of these.7% are actually transferred to a Member State other than in which the application was lodged’ (Economic and Social Committee. Under Art.Victor Stephany (i6123480) Maastricht University of his/her application33 or who has withdrawn his/her application and introduced a new application in another Member State34. Efficiency Deficiencies of the DC were revealed soon after it entered into force. Art. that assumes responsibility for examining that application. The European Commission stated that there was “widespread agreement that it [was] not functioning as well as had been hoped”35. the applicant must be taken back as quickly as possible and at the latest one month after the requested Member State agreed the claim (DC. 36 Commission. only 1. ‘Commission Staff Working Paper: Revisiting the Dublin Convention: developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States’ SEC(2000) 522 (hereinafter: Commission Staff Working Paper SEC(2000) 522). ‘Opinion of the Economic and Social Committee on the Proposal for a Council Regulation 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’ [2002] CES 352/2002. the economic and social committee thus notes that ‘in only 6% of cases is there any debate as to which Member State has the responsibility for determining the application and. Additionally. 3.1. 1. 34 DC.2. moreover. the requested Member State must provide an answer to the tack back request within eight days of the matter being referred to it. 35 Commission. ‘European Commission Staff Working Paper: Evaluation of the Dublin Convention’ SEC(2001) 756 (hereinafter: Commission Staff Working Paper SEC(2001) 756). Article 3(7) of the DC deals with the situation where a person lodges an asylum application in one Member State. 8 . 37 In that regard. Art. As regards time limits. thus preventing asylum seekers from circumventing the mechanism contained in the DC for determining responsibility. in which the asylum application is lodged.2. The laborious mechanism of the DC is therefore only applied to a very small proportion of all asylum application cases.3. 3(7) and 10(1)(d). 10(1)(c). If it accepts the claim. in 95% of cases it is the Member State. the same goes for asylum seekers whose application has been rejected. Besides. Evaluation 1.7). statistics speak for themselves as to the very weak use of the DC and the low level of transfers of asylum seekers between Member States37. 10(1)(e) of the DC. the first Member State must take back the applicant with a view to completing the Dublin procedure for determining the Member State responsible. but then the asylum applicant withdraws that claim and introduces a new claim in another Member State. Art. 33 DC. para 2. and therefore “the Convention’s role as a measure that complements freedom of movement is limited”36. In that case.3. 13(1)(b)). which begins to apply the Dublin procedure for determining the Member State responsible. 1.

the procedure for determining responsibility would ultimately take longer than examination of the actual application for asylum. 45 ECRE. 9 . Thus. 23(3) of that decision which provides that ‘if establishment of proof carried excessive requirements. In this regard. The Eurodac regulation was then adopted in 2003 to address these evidence issues (see infra). 47 Agnès Hurwitz (n 21) 671. 41 Ségolène Barbou des Places.eu (12 July 2016). especially since Member States had divergent opinions on what constitutes sufficient evidence44. 44 Agnès Hurwitz (n 21) 658. Yet. 46 Decision No 1/97. travel documents were of utmost importance. see also Art. Member States with more extensive national registers tend to be ‘penalised’ because their responsibility could be proved more easily43. Art. In this context. 42 Commission Staff Working Paper SEC(2000) 522. their self- interest led them in many cases to destroy them. 16-17.org (11 July 2016). Yet. not to mention the concerns raised regarding the DC’s aim to achieve a more equitable and logical distribution of responsibility for asylum applications within the Union 45 . if in practice first illegal entry should be the most frequently used criterion. the Convention would fail totally to have the desired effect and would even contradict one of its objectives since the delays would create a new category of 'refugees in orbit'.eui. asylum seekers often circumvented application of criteria when they felt their interests were not taken into account41. Plus. Decision 1/97 adopted by the Committee set up by Article 18 of the DC attempted to address these evidence issues by providing that responsibility may be founded on converging indicative evidence and emphasising the importance of ‘genuine cooperation’ between Member States46. 40 Commission Staff Working Paper SEC(2001) 756. 38 Ibid 2-3. 43 Decision No 1/97. 24. 23(4). asylum-seekers whose applications would not be examined until the procedure laid down under the Convention had been completed’. In that case. Member States have been reluctant to comply with such guidelines47. available at www. many of the applicants arrived without papers. ‘Position on the implementation of the Dublin Convention in the light of lessons learned from the implementation of the Schengen Convention’ [1997] para 15. para 47. and for those who had papers. The main procedural problem was assembling necessary evidence to determine the responsible Member State42. 39 Commission Staff Working Paper SEC(2000) 522.Victor Stephany (i6123480) Maastricht University Shortcomings in efficiency were due to limited numbers of effectively carried out transfers of asylum seekers between Member States38. available at cadmus. inadequate communication between the Member States which slows down the procedure and difficulties with effectively implementing the transfers40. ‘Le dispositif Dublin 2 ou les tribulations de la politique communautaire d’asile’ [2004] European University Institute.refworld. chapter III. the difficulty in proving illegal crossing rendered it almost inapplicable. differing national practices in applying and interpreting the Dublin provisions39. Art.

decision on the admissibility. Art. v UK decision where the ECtHR transfers to another Member State under the DC could lead to violation of the ECHR. the first problems relating to mutual trust appeared with the T. applicants could only rely on national law to find a possibility to challenge a transfer decision52. which entailed different chances of success for applicants53. 51 DC. available at www. ‘Position on the implementation of the Dublin Convention in the light of lessons learned from the implementation of the Schengen Convention’ (n 45) paras 34-36.I. Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law’ [2001] Nordic Journal of International Law 1. See aslo Gregor Noll.2. Next. The denial of socio-economic rights could constitute inhuman or degrading treatment under Article 3 of the ECHR. They had no right to examination of their claim under the concept of responsibility. Art.unhcr. Therefore.Victor Stephany (i6123480) Maastricht University 1. ‘Implementation of the Dublin Convention. 52 DC. 49 T. ECRE.org (15 July 2016). whose decisions are not subject to judicial control by the CJEU 51 .3. 18(2). nor from the sovereignty and humanitarian clauses50. The latter had no direct effect and was not therefore intended to grant rights to applicants. Thus. ‘Formalism vs. Empiricism. The jurisdiction of the CJEU was excluded: issues on the application and the interpretation of the DC were the exclusive privilege of the committee set up by Article 18 of the DC. v UK App no 43844/98 (ECtHR. both the UNHCR and ECRE urged the adoption of rules ensuring asylum-seekers adequate reception conditions and assistance during the Dublin procedure48. 7 March 2000). 48 UNHCR. 10 .2. Therefore. Human Rights Concerns were expressed about the lack of provisions on social and economic rights of asylum seekers during the Dublin procedure. 53 Clotilde Marinho and Matti Heinonen (n 10) 8. Some UNHCR Observations’ [1998] 3. given the diverging State legislations and practices in the field of asylum49. Furthermore. the judicial position of the applicant was rather weak under the DC.I. 50 Clotilde Marinho and Matti Heinonen (n 10) 3. 11(5). asylum procedures of the Member States were very divergent. Further explanations are given infra on mutual trust and the case law of the ECtHR and the CJEU.

1. In 2001. In order to facilitate the determination of the Member State responsible in accordance with the Dublin criteria. 58 Commission. was therefore harmonised at EU-level58. This facilitates to a large extent the burden of proof of the Member States and the adequate application of the responsibility criteria. ‘Temporary protection’. the Council adopted in 2003 the Reception Conditions Directive59. In order to provide certain necessities to asylum seekers waiting for a decision on their pending request.europa.Victor Stephany (i6123480) Maastricht University 2. available at ec. 57 Directive 2001/55/EC of the Council of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12. Art. This protection.eu (consulted on 10 June 2016). Member States may therefore compare fingerprints to determine if the concerned person has already lodged an application in another Member State or whether the person entered the EU irregularly56. available at ec. 55 Eurodac I Regulation. 4. Temporary protection is an exceptional measure designed to provide immediate and temporary protection to displaced persons from non-EU countries who are unable to return to their country of origin. 56 Commission. the Council adopted the Temporary Protection Directive57 to address the need for special procedures to deal with mass influx of displaced persons owing to the conflicts in the former Yugoslavia and Kosovo during the 1990s. thus 54 Regulation (EC) No 2725/2000 of the Council of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1 (the Eurodac I Regulation). EUROPEAN HARMONISATION IN ASYLUM LAW: DUBLIN II 2. which stands for European Dactyloscopy). provided in the Geneva Convention. 59 Directive 2003/9/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18. It consists of a fingerprint database aimed at identifying asylum seekers and irregular border-crossers aged over 1455. 5 and 8. the Council adopted in 2001 the Eurodac Regulation54 establishing the European Automated Fingerprint Recognition System (Eurodac. ‘Identification of applicants (EURODAC)’.europa. This instrument establishes common standards of conditions of living of asylum applicants.eu (consulted on 10 June 2016). The CEAS From 2000 onwards the Council of the European Union adopted new EU rules in order to set up the CEAS. all of them based on the Geneva Convention and – allegedly – with due respect to fundamental rights as guaranteed by the Charter and the ECHR. 11 .

‘so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications’. access to education. residence permits. According to preamble recital 4. the Council replaced the DC of 1990 by the Council Regulation of 18 February 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 – commonly known as the Dublin II Regulation64. It sets principles. ‘Who qualifies for international protection’.2. The Dublin II Regulation pursues the same aim as the DC: determining. food. access to accommodation. 65 Dublin II Regulation. healthcare. Art.Victor Stephany (i6123480) Maastricht University ensuring that applicants have access to housing. The Dublin II Regulation In 2003. available at ec.europa.europa. 64 Regulation 343/2003/EC of the Council of 18 February 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 [2003] OJ L50/1 (the Dublin II Regulation or Dublin II). 62 Commission. the criteria laid down in that regulation must ensure a rapid determination of the Member State responsible. available at ec. social welfare. on the basis of a hierarchy of criteria.eu (consulted on 10 June 2016). which Member State is responsible for the examination of an application for asylum lodged by a third-country national in a EU Member State65. ‘Reception conditions’. as well as the content of this protection. 63 Directive 2005/85/EC of the Council of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. It is also 60 Commission. as well as specific provisions for children and vulnerable persons62. right to legal assistance and representation during the procedure and right to appeal. 61 Directive 2004/83/EC of the Council 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 [2004] OJ L304/12. 2. access to integration facilities. 1. access to employment. travel documents. rights and obligations for the applicant for all stages of the procedure. health care and employment. Adopted in 2004 by the Council. 12 . The 2005 Asylum Procedures Directive63 establishes common safeguards ensuring fair and efficient procedures for people fleeing persecution and seeking international protection.eu (consulted on 10 June 2016). such as access to the procedure. as well as medical and psychological care60. the Qualification Directive61 aims to establish common grounds for granting international protection. It also guarantees a series of rights on protection from ‘refoulement’.

69 Regarding unaccompanied minors. Commission ‘Proposal for a Council Regulation Establishing the Criteria for Determining the Member State Responsible for Examining an Asylum Application Lodged in one of the Member States by a Third-country National’ COM(2001) 447 final.1. Valid Throughout the Union. for Persons Granted Asylum’ COM(2000) 755 final. the Dublin II Regulation contains the sovereignty clause (a Member State may examine an asylum application lodged in its territory even if it is not responsible for that claim according to the hierarchy of criteria) and the humanitarian clause (Member States may ‘bring together family members. on humanitarian grounds based in particular on family or cultural considerations’)70.1 and 16(1)(b). 2(i)). the Dublin II Regulation is based on the core principle that only one Member State is responsible for examining an asylum application67.Victor Stephany (i6123480) Maastricht University based on the same principle. Another change brought by Dublin II is that the family member must not necessarily have been granted the refugee status – as it was the case under the DC – since it suffices that the asylum application lodged by that family member be under examination (Dublin II Regulation. an element of dependency is imposed under Dublin II for unmarried minor children to fall within the scope of the notion of ‘family member’. As with its predecessor. 3(2) and 15. If none of these criteria may apply. Responsibility As in the DC. as well as other dependant relatives. explanatory memorandum para 2(2)). Art. Towards a Common Asylum Procedure and a Uniform Status. 7 and 8)68. The list of criteria therefore stands as follows: family unity (Art. 13). 10). the Dublin II provides the new rule that the Member State where a member of her/his family is legally present will be responsible for her/his application for asylum. Commission. 67 Dublin II Regulation. The hierarchy of criteria has equally been conserved.unhcr. provided that unmarried couples are treated in a comparable way to married couples according to the legislation or practice of the Member State. with specific rules regarding unaccompanied minors69. 6). by extending the definition of family member to the unmarried partner in a stable relationship with the applicant. 66 A system primarily based on the place of application was considered by the Commission. 13 . place of residence (Art.org (17 May 2016). 10. the place of application determines responsibility (Art. para 59. for persons granted asylum” (COM (2000) 755 final)’ [2001] available at www. 68 The Dublin II Regulation amended the scope of that rule. ‘Communication from the Commission to the Council and the European Parliament. Art. Art 3. See also UNHCR. However. If no family member is legally present on the territory of a Member State. with no room for choice of the applicant. valid throughout the European Union. the Member State where the minor lodged her/his application will be deemed responsible (Dublin II Regulation. Art. which finally abandoned that criterion due to the lack of harmonisation at that time in other asylum-related areas (see Commission Staff Working Paper SEC [2000] 522. 70 Dublin II Regulation. OJ C 304 E/192. 2. with several modifications to address the problems detected in the application of the DC66. 9) and place of first illicit entry (Art. ‘UNHCR observations on the European Commission Communication “Towards a common asylum procedure and uniform status.2.

As a consequence. Should that request not be sent within that three-month period. 20(1) and (2) of the Dublin II Regulation). it must be carried out ‘as soon as practically possible. Art. Dublin II provides for the take charge and take back requests. 4(5) and 20(1) of Dublin II). either because the former is not responsible or because the applicant is irregularly present on its territory while her/his claim for asylum is under process or has been withdrawn/rejected in another Member State (Art. The requested Member State – which is called upon to take back the applicant – must reply to the request ‘as quickly as possible’ and no latter than one month after receiving it. the transfer of the applicant must take place ‘as soon as practically possible.3. which did not provide for any consequence in that respect (Dublin II Regulation. Procedure The process of determining the Member State responsible starts ‘as soon as an application for asylum is first lodged within a Member State’71. Failure to act within that period will be tantamount to accepting the request (Dublin II Regulation.2. responsibility will lie with the requesting Member State – contrary to the DC. 18(1) and (7)). 2. 72 Thus. Beyond that time-limit. aimed at transferring an asylum applicant from one Member State to another.2. Failing to reply within one month is tantamount to accepting the request. Art. the requested Member State has two months to take a decision on the request. even though there is a high rate of acceptance of transfer 71 Dublin II Regulation.3. This negative effect is however mitigated by the very low rate of transfer completed. whereas the DC provided for a three-month period (longer than the one-month period suggested by Article 4(1) of Decision 1/97 of the Committee set up by Article 18 of the DC). Art. the requesting Member State will be responsible for the claim (Dublin II Regulation. Evaluation 2. The whole process of taking charge cannot thus exceed five months under Dublin. and at the latest within six months of acceptance of the request’. it has been criticised for the very same reasons: it fails to prevent secondary movements and a disproportionate burden is imposed on Member States located at the ‘sensible’ external frontiers of the EU73. European Parliament. ‘European Parliament resolution of 2 September 2008 on the evaluation of the Dublin system’ 2007/2262(INI) [2007] paras 5-6. Beyond that limit.2. After receiving the request. instead of six months under the DC. 19(3) and (4)). whereas it could last up to nine months under the previous regime. In case the request is accepted. and at the latest within six months of acceptance of the request’. 14 . As with the DC. Once the transfer has been agreed.Victor Stephany (i6123480) Maastricht University 2. under take charge requests must be sent ‘as quickly as possible and in any case within three months of the date on which the application was lodged.1. Dublin II shortened the different time limits of the take charge procedure72. 17(1)). responsibility will lie with the requesting Member State – in which was lodged the application (Art. Main issues identified Dublin II did not profoundly amend the philosophy and responsibility criteria of the DC.2. 4(1). Art. 73 Joanna Lenart ‘“Fortress Europe”: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ [2012] Utrecht Journal of International and European Law 4. 13.

whereas family links are harder to establish and some Member States require a DNA test to prove them82. 76 Francesco Maiani and Vigdis Vevstad. Furthermore.refworld. on the assumption that ‘each Member State respects the rights of asylum seekers in accordance with European and international law’83. These clauses do not require in addition the consent of the applicant. In addition. In addition.2. Diverging standards of protection of applicants. ‘The Dublin II Regulation’ [2006] 30-32. 7. European Comparative Report’ [2013] 5. available at www. 81 Ibid. available at www. ‘The Dublin II Regulation’ (n 78) 26-27. 78 UNHCR. which has led to instances before the CJEU and the ECtHR (explained infra). Another issue is the difficulty to provide evidence.eu (20 August 2016). insufficient procedural guarantees. ‘Distribution of Applicants for International Protection and Protected Persons’ in Directorate-General for Internal Policies. 77 Ibid 32. available at www. which apply and interpret the allocation criteria differently 75 . many Member States have not made use of these clauses to alleviate family separation issues80. Only Eurodac “hits” tend to be accepted to certify illegal crossing of a border81. which can prevent her/him to rejoin family members in other Member States79. 80 ECRE. ECRE.2. Christian Filzwieser. 4 and 8. ‘Report form the Commission to the European Parliament and the Council on the evaluation of the Dublin System’ (Commission evaluation of Dublin II) COM(2007) 299 final. Mutual trust in asylum law: case law of the ECtHR and the CJEU The Dublin system is based on mutual trust. ‘Dublin II Regulation: Lives on hold. 79 Commission evaluation of Dublin II. ‘Summary Report on the Application of the Dublin II Regulation in Europe’ [2006] 3.org (20 August 2016). European Comparative Report’ (n 70) 6. Shortcomings in the functioning of Dublin II further derive from diverging practices among Member States. 75 ECRE. 82 UNHCR.org (20 August 2016). with some Member States unable to ensure fair asylum procedures (due to e.forcedmigration.ecre. 74 Commission. also preclude the attainment of the objectives of the Dublin system76. ‘The Dublin Regulation vs the European Convention of Human Rights – A Non-Issue or a Precarious Legal Balancing Act?’[2006] 1.e.org (20 August 2016). 2. Family unity criteria are restrictively framed by the Dublin II Regulation and harshly applied by the Member States77. the application of unduly restrictive qualification criteria or reliance on flawed risk assessments) and dignified standards of living. 15 . Setting up a Common European Asylum System [2010] PE 425.Victor Stephany (i6123480) Maastricht University requests.3. ‘Dublin II Regulation: Lives on hold.g.ch (19 August 2016). certain Member States transfer a similar number of applications between themselves74. 31. time limits are not always respected. available at www.unhcr.europa.europarl.622. and a weak use of the sovereignty and humanitarian clauses has been noted78. available at repository. i.

33) and the EU Charter on Fundamental Rights (art. Belgium was condemned as well. where their fundamental rights will be respected. stating that in ‘the absence of any proof to the contrary.R. in case of transfer of an asylum seeker (in that case from the UK to Germany). have an obligation to examine the compliance of the intermediate State’s asylum rules with the principle of non (direct or indirect) refoulement. v UK (K. violated Article 3 in conjunction with Article 13 of the ECHR because of two reasons: (i) the poor living and detention conditions of applicants for international protection and (ii) the risk faced by the applicant. This principle of ECHR States’ own responsibility under Article 3 ECHR when transferring an asylum seeker to another state was confirmed in 2008 with the case of K.S. for both direct (because of the poor living and detention conditions in Greece for asylum seekers) and indirect refoulement (because of the probability to be expelled to her/his country of origin where she/he would be in danger). 84 Ibid 139. At first.S. due to the shortcomings in the asylum procedure. the ECtHR and the CJEU have shaped and limited the principle of mutual trust in European refugee law. This case places a heavy burden of proof on the Member 83 Evelien Brouwer.I. Throughout the application of the Dublin system. v Belgium and Greece case86. 4)84. the ECtHR tolerated mutual trust. v Belgium and Greece App no 30696/09 (ECtHR. when transferring an asylum seeker pursuant to the Dublin rules. v United Kingdom App no 32733/08 (ECtHR.S. 2 December 2008) decision on the admissibility) concerning the transfer of an applicant from UK to Greece.S. Member States may not rely on the fact that the Member State of reception of the applicant is party to the Dublin system and the ECHR to conclude that her/his fundamental rights will be respected: they must effectively verify whether the removal of the applicant will not expose her/him to ill-treatment. 16 . it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant’ (para 18).R. though it could not be absolute85. The ECtHR narrowed the ability of the Member States to rely on mutual trust regarding transfer of applicants with the M. 138. of being returned to his country of origin without any serious examination of her/his application and without having access to an effective remedy. The ECtHR held in that case that Greece. in combination with art. v UK decision (n 49) where the ECtHR held that states were not free to rely in any circumstances on mutual trust: they are responsible for protecting asylum seekers against direct refoulement as well as against indirect refoulement. 13 on the right to effective remedy). 3.S. This presumption is supported by the fact that all Dublin States are bound to the principle of ‘non-refoulement’. This means that. to whom Belgium had sent back an asylum seeker. 86 M.S. all Member States are to be considered as safe countries for asylum seekers. 85 See the T. provided by the ECHR (art. ‘Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof’ [2013] Utrecht Law Review 135. The ECtHR declared in that case that the presumption of trust was refutable.Victor Stephany (i6123480) Maastricht University Therefore. The Strasbourg Court therefore confirmed that Member States. 21 January 2011). the Geneva Convention (art.

v SSHD (Joined Cases C-411/10 and C-493/10 NS v SSHD [2011] ECR I-0000). 90 It however seems that his infringement is not to limited to an inhuman or degrading treatment within the meaning of Article 4 of the Charter. the concerned Member State may be held responsible under Article 4 of the Charter even if the asylum seeker does not submit this claim herself/himself. Unlike the ECtHR.S. 17 . the CJEU paid special attention to the question when the presumption of trust must be rebutted. Sílvia Morgades-Gil. the sovereignty clause in Article 3(2) of the Dublin II Regulation may turn into an obligation. and reverses the presumption established in previous case law87. paras 87 and 93. and further emphasised the governance of the principle of solidarity and the fair sharing of responsibility between the Member States in the implementation of the asylum policy. 93 Tarakhel v Switerland App no 29217/12 (ECtHR. 88 In N. The CJEU also ruled that in case of systemic flaws in the reception conditions of the receiving Member State. According to the CJEU. the CJEU noted that the application of the Dublin Regulation resulted in a disproportionate burden for Greece – which is the main point of entry for illegal migrants – compared to other Member States. 92 Evelien Brouwer (n 83) 144. even though it belongs to the applicant to submit grounds of systematic flaws in asylum procedures of the receiving State. as the CJEU reaches the conclusion that EU law precludes the application of a conclusive presumption that the responsible Member State under Dublin II observes the fundamental rights of the EU (see NS v SSHD. Greece – applies its legislation. For the sake of preserving the efficiency of the Dublin Regulation.e. The latter stressed in that case the obligations of states to carry out a thorough and individualised examination of the situation of the applicant for international protection. qualification directive and asylum procedures directive) cannot therefore alone prevent the transfer of an applicant for asylum to another Member State90. 91 NS v SSHD. ‘‘Systemic Flaws’ and Dublin Transfers: Incompatible Tests before the CJEU and the ECtHR?’ [2015] International Journal of Refugee Law 135. as provided by Article 80 TFEU91. This individualised examination requirement 87 On that issue. the CJEU held that Member States may not transfer an asylum seeker where ‘they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions amount to substantial grounds for believing that asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’ (para 86). 89 NS v SSHD (n 88) para 82.Victor Stephany (i6123480) Maastricht University States. Differences in the interpretation between the ECtHR and the CJEU were heightened with the 2013 Tarakhel decision of the ECtHR 93 . The slightest infringement of EU Directives on asylum (reception conditions directive. see Anna Lübbe. 343/2003’89. 4 November 2014). mutual trust must be abandoned88. Those remarks imply that Member States may not rely unquestioningly on the principle of mutual trust in the framework of the Dublin system92. ‘The Discretion of States in the Dublin III System for Determining Responsibility for Examining Applications for Asylum: What Remains of the Sovereignty and Humanitarian Clauses After the Interpretations of the ECtHR and the CJEU?’ [2015] International Journal of Refugee Law 433. Plus. Thus. which are expected to verify actively how the intermediate State – i. the CJEU held that not ‘any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member State to comply with the provisions of Regulation No. para 105 and Evelien Brouwer (n 83) 144).

100 Regulation 604/2013. Art. the Commission did not propose a repeal of the principles of allocation of responsibility. to reach the objective initially set out at the Tampere European Council in 1999 of establishing ‘a clear and workable method for determining the Member State responsible for the examination of an asylum application’99. It covers therefore a broader scope than Dublin II. 99 See Regulation 604/2013. 97 Steve Peers. preamble recitals 2 to 7. 18 . 95 Opinion 2/13 of the CJEU (18 December 2014). which only applied for asylum101. 2016) 161. 94 Case C-399/11 Stefano Melloni v Ministerio Fiscal (CJEU. as this legislation was accused of transferring such responsibility away from northern and western Member States – which are the favourite destinations of most asylum seekers – and toward the southern and eastern Member States. RECAST OF THE EUROPEAN ASYLUM FRAMEWORK: DUBLIN III96 The application of the Dublin II rules on responsibility for asylum applications has been widely criticised. Maria Bergström and Theodore Konstadinides. 26 February 2013). which are less experienced and therefore have more difficulties managing large numbers of applicants for asylum97. 3. which were left unchanged. 96 Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining the application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 (Regulation 604/2013 or Dublin III). preamble recital 9. In spite of this.Victor Stephany (i6123480) Maastricht University imposed by the ECtHR goes beyond the ‘exceptional circumstances’ requirement set out by the CJEU in Opinion 2/13 and quoting both Dublin (NS) and European Arrest Warrant (Melloni94) case law95. para 191. Art. Dublin III is thus forged in the context of the development of the second phase of the CEAS. 98 See Regulation 604/2013. See Valsamis Mitsilegas. 1. Madeline Garlick and Elspeth Guild ‘EU Immigration and Asylum Law’ (2nd edn. The criteria and mechanisms provided by Dublin III apply to applications for international protection100. 101 Regulation 343/2003. Koninklijke Brill NV 2015) 347. but rather suggested the adoption of a compromise between two contradictory objectives: enhancing the efficiency of the system on the one hand and improving the level of protection for asylum seekers on the other hand98. Violeta Moreno-Lax. Research Handbook on EU Criminal Law (Edward Elgar Publishing. This provision does not however refer to the tension between the objective of effectiveness and the objective of protection of asylum seekers. 1.

Dublin III allocates responsibility through a criteria scheme (Articles 7-15). 8). 29). 19 .Victor Stephany (i6123480) Maastricht University 3. 9 and 10)102. 105 A take back request must be filed ‘as quickly as possible’ and in any event within three months of the date on which the application was lodged (or within two months of a Eurodac hit). or two months from a Eurodac hit (Regulation 604/2013. Responsibility As for its predecessors. or one year in case of imprisonment of the person concerned or up to 18 months in case of absconding (Regulation 604/2013. If the request is accept. Art. Evaluation 3. 29). with specific rules regarding unaccompanied minors (Art. Art. 12). 104 A take charge request must be filed ‘as quickly as possible’ and in any event within three months following the introduction of the application. the differences in application and interpretation of the 102 The scope of that rule is wider than the matching rule in Dublin II and the DC. then the Member State where an irregular migrant has been staying for a continuous period of at least five months is responsible. 3. 3(2)). 3. If the request is accepted.1. 22(1)). if none of these criteria apply. 13)103 and. Responsibility based on that ground ceases 12 months after the irregular border crossing occurred. only modifying the time limits for both procedures. The requested Member State has two months following the receipt of the request to accept or reject it (Regulation 604/2013. 13(2) of Dublin III. Efficiency Evaluations tend to indicate that the Dublin system is currently ineffective and fails to prevent ‘asylum shopping’ and multiple applications. place of legal residence (Art. If a Member State cannot be held responsible pursuant to Article 13. The requested Member State must accept or reject the request ‘as quickly as possible’ and in any event within one month of the receipt of the request. which remained unchanged: family unity (Art. 17).1. in particular Eurodac data. if this can be proved.2. That time limit may be extended up to one year if the transfer could be carried out due to imprisonment of the person concerned or up to a maximum of 18 months where authorities believe that the applicant has absconded (Regulation 604/2013. Art. under which did not include family members of persons with subsidiary protection. Art. Member States may also derive their competence from the sovereignty and the humanitarian clauses (Art. Art. This is due to the complexity and the nature of the Dublin procedure. 21(1)). first irregular entry (Art. the place of application (Art. the transfer of the applicant must be completed within six months. take charge104 and take back105 procedures have been shortened.3. or two weeks from a Eurodac hit (Regulation 604/2013. the border crossing must be established ‘on the basis of proof or circumstantial evidence’. 25). Thus. 103 Under Art. the time limit to complete the transfer of the applicant is of six months. Procedure Dublin III conserved the take charge and take back requests.3.

available at ec. available at www. This failure in implementing the last stage of the Dublin procedure may be explained by appeals against transfer decisions and the high rate of absconding during the Dublin procedure108. See also Susan Fratzke (n84) 13. ‘Not Adding Up. The Greens. Member States often exchange the same number of requests110. Next. available at ec. 108 Commission. trauma or voluntary return to the country of origin. as well as difficulties coordinating transfer logistics may be other reasons. 20 . 107 The Commission evaluation report of the Dublin III Regulation thus states that in 2014. Applicants’ illness. See also Richard Williams. only 8 % of the total number of accepted take back and take charge requests resulted in actual physical transfers (Commission. Furthermore. ‘Beyond Dublin. thereby preventing ensuring an efficient flow of applicants throughout the procedure.europa. See also Susan Fratzke. As a result. which delays access to the asylum procedure: criteria and procedure are set out by the Regulation. ‘Evaluation of the Dublin III Regulation’ (n 106) 12). Due to the complexity of the procedure. ‘Evaluation of the Dublin III Regulation’ (n 106) 6. EU Asylum: Towards 2020 Project. The 2015 refugee crisis aggravated that effect: Dublin III was not designed to deal with situations of mass influx.eu (15 August 2016) for data of 2014 – note that data update is planned for September 2016. 110 See Eurostat.greens-efa. only a very low rate of Dublin transfer requests is effectively carried out107. the Dublin III Regulation rarely succeeds in implementing 106 Commission. who takes the figures of 2013 to note that only 28% of the accepted transfer requests actually resulted in transfer of the applicant. the uneven burden shared by Member States in the number of applications and the meagre deference paid to the interests of the applicants.migrationpolicy. some Member States de facto stopped applying Dublin III – or apply it incorrectly – thereby reducing its overall relevance106.org (11 August 2016).eu (12 August 2016).Victor Stephany (i6123480) Maastricht University Regulation. upon which Member States will have to negotiate with each other on a bilateral basis in order to determine who is to be responsible for an application. The Fading Promise of Europe’s Dublin System’ [2015] 11-12.europa.eu (16 August 2016). the method displayed by the Dublin Regulation is marked by important differences in how Member States interpret and apply the criteria for determining the responsible Member State. 109 Susan Fratzke (n 107) 12-13. In addition to the low rate of effective transfers. available at www. a lack of formal evidence (such as a Eurodac hit or a DNA test in the case of family unity) may prevent the acceptance of a transfer request by the receiving Member State109. The delays provided are moreover lengthy. ‘Evaluation of the Dublin III Regulation’ [2015] 8. The method for allocating responsibility is based on an intergovernmental approach. which has severely reduced its relevance in the current context and undermined achieving its objectives. ‘Dublin statistics on countries responsible for asylum application’. Dublin III provides for procedures which are already lengthy in normal circumstances. A Discussion Paper for the Greens/EFA in the European Parliament’ [2015] 11. Plus.

which in turn receive significant responsibility. European Parliament Research Service. in order to move on to a more desirable destination which they believe will take into account their needs more adequately112. ‘EU legal framework on asylum and irregular immigration 'on arrival' State of play’ [2015] EP 551. Dublin leads to a circulation of requests among the largest asylum destinations rather than a push to the borders.e. i. 8. This effect is however mitigated by the low level of transfers actually carried out. ‘Europe’s huddled masses Rich countries must take on more of the migration burden’ The Economist (London. who holds that allocation criteria are so often ignored in practice that responsibility ultimately lies with the fist Member State of application in the vast majority of cases. available at www. 2016) 256. Deficiencies of Dublin III thus result in disproportionate distribution of applicants113.com (12 August 2016). available at www. Dublin III was not designed to ensure fair sharing of responsibility and does not effectively address the disproportionate distribution of applications for international protection.europa. 4. Maria Stavropoulou.fmreview. CEPS.Victor Stephany (i6123480) Maastricht University the last stage of the Dublin procedure. .eu (19 July 2016). Moreover. Furthermore. 113 Commission. Briefing.europarl. Eva-Maria Poptcheva.org (12 August 2016). 114 Susan Fratzke (n 107) 9. de facto and legally shifting the responsibility for an asylum applicant from one Member State to another111. ‘Evaluation of the Dublin III Regulation’ (n 106) 6. applicants may be tempted to travel on and submit claims in more ‘attractive’ destinations. ‘The EU’s Response to the Refugee Crisis.economist. Clear procedures are laid down but their effectiveness is undermined by the current in flux of refugees. 112 Ibid 7. which can even suggest that (non) application of the Dublin system ‘does not appear to result in a large-scale shift of asylum seekers to Europe’s external borders’114. The Member States’ capacity to process claim is not taken into account by the hierarchy of criteria and no balance of efforts is considered in determining which Member State is responsible.333. ‘Evaluation of the Dublin III Regulation’ (n 106) 11. Susan Fratzke (n 107) 8. ‘Refugee protection in Europe: time for a major overhaul?’ [2016] Destination: Europe. 13. Criteria relating to family unity are unclear and hard to prove. 21 . As a consequence. Overburdened Member States – the external borders Member States according to the most often used criterion of first irregular entry – may not have the capacity to fulfil their obligations. the interests and needs of the applicants are not sufficiently taken into account by the hierarchy of criteria. . Several factors affect the clarity and feasibility of the method for allocating responsibility set up by Dublin III: . The Human Rights of Migrants and Refugees in European Law (OUP. Sergio Carrera. The reception and humanitarian conditions in many of these Member States are systematically deficient. According to her. Brussels. See also Cathryn Costello. Steven Blockmans. Daniel Gros and Elspeth Guild. Applicants try to avoid being identified in place of entry. Taking Stock and Setting Policy Priorities’ [2015] CEPS Essay. 16 August 2014) available at www. Family criteria and the humanitarian and sovereignty 111 Commission.

See also Richard Williams (n 99) 10-11.3. 4)118. 487. the rule of personal interview. as substantiated by the case law of the ECtHR (see supra). 5).org (10 August 2016). Yet a second and a third sub-paragraphs had been added to Article 3(2). 22 . 118 Dublin II only provided that the applicant had to be informed on the application of the Regulation. the consequences of applying in another Member State or moving between Member States. the Dublin III Regulation increased the procedural rights of the applicant in many aspects: right to information has been expanded (Art. and the dependency clause in article 16 as well as the discretionary clauses’ (UNHCR.2. 6). the poor reception conditions in some Member States still impede the smooth running of the Dublin system. the UNHCR suggests ‘a proactive and efficient use of the enhanced articles 8-11 of the Dublin III Regulation for unaccompanied children and family members. It strengthened the family unity principle and gave all applicants subject to a Dublin transfer (take back or take charge) the right to a personal interview and to remain in the concerned Member State while appealing the decision. 3(4) of Dublin II). reflecting the case law of the CJEU on that matter117. ‘Reconciling the Dublin system with European fundamental rights and the Charter’ [2015] Europaische Rechtacademie 485. Applicants have an incentive to move on in secondary movements and to remain irregular and invisible to authorities: if they are recognised as refugee in a Member State. its time limits and effects (Art. which would allow them to move and reside in another Member State (providing that they have means of support and/or employment)116. best interests of the child are a ‘primary consideration’ as regards the procedures in Dublin III and unaccompanied minors must be assisted by a representative throughout these procedures (Art. 4 and 5. Human Rights Compared to Dublin II. 116 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44. 117 Steve Peers. expanded 115 In that respect. refugees and migrants by sea to Europe’ [2015] 3. the possibility to submit information on family members and relatives. Member States are obliged to conduct a personal interview with the applicant (Art. rules regarding appeal of a transfer decision and rules relating to data procession and protection. Regarding mutual trust. ‘UNHCR proposals to address current and future arrivals of asylum- seekers.refworld.Victor Stephany (i6123480) Maastricht University clauses are not frequently used in practice115: responsibility is therefore usually based on the place of entry – ‘an irrelevant and coincidental factor in relation to the person’s needs/interests’. it will take up to five years to be granted long-term resident’s status. the Dublin III Regulation provided some additional clarifications. available at www. Dublin III now provides that the applicant must be informed as soon as the application is lodged of the objectives of the Regulation. particularly in the hierarchy of criteria to consider. the hierarchy of allocation criteria. Furthermore. Art. 3.

27)120. 120 Steve Peers. ‘Reconciling the Dublin system with European fundamental rights and the Charter’ (n 117) 489- 491. She/he must be informed of the main elements of that decision.Victor Stephany (i6123480) Maastricht University rules on notification are now provided (Art. 119 The applicant – or her/his lawyer instead – must be notified of the transfer decision and of any decision not to consider the merits of her/his application. 23 . 26)119 and a ‘right to an effective remedy’ is granted by Dublin III (Art.

establishing a fairer distribution system through a corrective mechanism which will automatically identify whether a Member State is faced with a disproportionate number of applications for asylum. ‘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 (recast)’ COM (2016) 270 final (the Dublin IV Proposal of the DIVP).Victor Stephany (i6123480) Maastricht University PART II: THE DUBLIN IV PROPOSAL On the 4th of May 2016. they should not be provided with excessive room for choosing the final country of asylum. Even though the DIVP maintains the hierarchy of criteria. Justice and Home affairs. . Member States recalled that applicants are seeking international protection/fleeing persecution and that. since the rationale of Dublin is not that of a (economic) migration scheme (DIVP. therefore. Other changes are proposed to discourage abuses and prevent secondary movements of applicants within the EU. While some said that preferences could not be fully ignored as this would almost inevitably result in secondary movements. If there was overall broad support for a fundamental reform the Dublin system. Member States and other stakeholders such as UNHCR and non-governmental organisations working in the area of asylum. This proposal is based on the following lines: . providing a clarification of the obligations of applicants for asylum in the EU and of the consequences of failing to comply with those obligations122. OVERVIEW OF THE PROPOSAL 1. 123 Consultations led by the Commission involved LIBE coordinators of political groups of the European Parliament’s Committee on Civil Liberties. 1. bolstering the efficacy of the system by making a single Member State responsible for assessing each individual application for international protection. . Also. there were divergent views on whether the preferences of applicants should be taken into account. the latter came to the conclusion that it is necessary to preserve the current Dublin criteria to determine responsibility. 12-13). important modifications regarding its application are suggested by the Commission. 97. as clear. in order to address the 121 Commission. others strongly advised against. 24 . 122 DIVP. the Commission made a proposal to recast the Dublin III Regulation121. objective criteria were needed and adding preferences would result in complicated case-by-case assessments. while supplementing them with a corrective fairness mechanism to relieve Member States under disproportionate pressure. Responsibility Against a background of a great difference of opinion between the various stakeholders consulted by the Commission123.1.

Applicants having entered unlawfully the Dublin area must make their application in the Member State where they are legally present. 126 See Art. 127 DIVP. First check by the State of application Before the start of the process of determining the Member State responsible. in which case the Member State of application will be responsible and has to examine the application in accelerated procedure. 25 .1. and the Member State who made the inadmissibility check will be considered responsible for that application.2. obligations of the applicants and other minor amendments). The Member State of application must also check whether the applicant comes from a safe country of origin or presents a security risk. Article 3(3) of the DIVP introduces an obligation for the Member State of application to check whether the application is inadmissible pursuant to Directive 2013/32/EU.1. If the applicant applies in another Member State. 4(1). the Member State of legal stay will remain responsible and examine the application in an accelerated procedure127. Art. on the grounds that the applicant comes from a first country of asylum or a safe third country126. Obligations of the applicant In order to reduce secondary movements of applicants. 1. Article 4 of the DIVP provides new obligations for applicants – about which they must be informed pursuant to Article 6. Moreover. employment. 125 DIVP. If this is the case. Art. The Commission Proposal makes clear that the criteria for determining responsibility may be applied only once124. she/he will not be entitled to reception conditions of schooling and education of minors. in case of application in any Member State other than the one in which the applicant is required to be present. 15. material 124 DIVP.Victor Stephany (i6123480) Maastricht University shortcomings attached to Dublin III (First check by the State of application. 1. vocational training.1. 9(1). This means that the readmission rules (take back) will apply without exception in case of a second application in another Member State: determination of responsibility occurs only once125. 33(2)(b) and (c) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60. the applicant will be returned to that first country or safe third country.

Discretionary clause Discretionary basis of responsibility has been narrowed. 2(g) of the DIVP). 11-13). 3(2)). As regards the humanitarian clause. 1. 129 DIVP. Some minor changes are however to be noted: As regards family unity criteria. Under Article 19 of the Commission Proposal.1. 128 See DIVP. 16. 130 DIVP.1. 14 to 19 of the Reception Conditions Directive: Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. These extensions of the family definition are expected to reduce the risk of irregular movement or absconding for persons concerned by new rules130. the sovereignty clause may be invoked only as long as no Member State has been determined to be responsible and on family grounds not covered by the definition of ‘family members’ (Art. place of first irregular entry (Art. Art.Victor Stephany (i6123480) Maastricht University reception conditions and health care if there is no emergency128. 26 . the Proposal of the Commission widens the scope of the definition of ‘family members’ by including (i) the siblings of an applicant and (ii) family relations which were formed after leaving the country of origin but before arrival on the territory of the Member State129. Hierarchy of criteria The DIVP does not modify the hierarchy of criteria and the specific unaccompanied minors regime: responsibility is based on family unity (Art. Furthermore. 15) and eventually place of application (Art. With respect to the unlawful entry criterion. 14). place of legal residence (Art. The reference to ‘humanitarian grounds based in particular on family or cultural considerations’ has been removed. 5. unaccompanied minors are entitled to a representative only in the Member State where they are ‘obliged to be present’ under Article 8(2) of the DIVP.3. it is limited to requesting another Member State to take charge of an applicant ‘in order to bring together any family relations’. 1. 2(g). the clause envisaging cessation of responsibility after 12 months from irregular entry was deleted.4. All these conditions are laid down in Art. Art.

in addition to 131 131 DIVP. in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is the Member State responsible under the Regulation131. an automated system is established in which Member States must register all applications they receive. this will be included in the system as well135. 135 Ibid Art. 22(1) of the DIVP. 22(1). 23(1). 137 Ibid Art.g. indicating links to the applications of family members or relatives travelling together132. 20(7).Victor Stephany (i6123480) Maastricht University 1. to help detect multiple applications and to prevent irregular secondary movements and asylum shopping133. the application for international protection must be entered in the central system as soon as possible and no later than 72 hours after it has been lodged. 27 . contained in a new Chapter VII. in order to ensure a fair sharing of responsibility between Member States and swift access of applicants to procedures for granting international protection. Each application registered in the automated system is recorded under a unique application number134.2. 136 Ibid Art. 1. 133 DIVP. Registration and monitoring system To manage this sharing of the burden. The system will also indicate the numbers of persons effectively resettled by each Member State137. 134 Ibid Art. see also preamble recital 29. where the number of applications for which a Member State is responsible. Art. As soon as a Member State has been determined to be the Member State responsible. Art.2. This is intended to allow the monitoring of each Member States’ share in all applications.2. 23(1)(c). Art.2. Pursuant to Art. Triggering the corrective allocation mechanism As soon as a Member State is confronted with a disproportionate number of applications – e. in real time. 22(2) and 23(2)(a).1. compared to other Member States136. 132 DIVP. as well as – after a Member State responsible has been determined – the number of applications that each Member State must examine as Member State responsible and the share which this represents. 34(1). 1. 22(1)(b). the total number of applications lodged in the EU and the number per Member State. Corrective allocation mechanism The Commission Proposal establishes a corrective allocation mechanism. The automated system will indicate.

28 . Family members to whom the allocation procedure applies will be allocated to the same Member State141.3. the DIVP shortens the time limits for submitting and replying to a take charge request143 and replaces the take back request by a take back notification144.1. apply in the case of the applicant. 142 Under the Dublin III system. Indeed. Where this should be the case. 24(1)). the Member State of allocation must do the Dublin check to verify whether there are primary criteria. the method of allocating responsibility delays access to the asylum procedure and therefore undermines the aim to ensure an applicant's swift access to the asylum procedure. Take charge requests and take back notifications Due to the length of the take back and take charge procedures under Dublin III142. 34(3) of the DIVP. 140 Ibid Art. 138 Under Art. 144 Under Art. 35(2) of the DIVP – to the total number of applications as well as the total number of resettled persons that have been entered by the respective Member States responsible in the automated system during the preceding 12 months.3. and must receive the applicant. 34(2). pursuant to Art. the Member State which must take back an applicant for international protection has the obligation to make a take back notification at the latest within two weeks after receiving the Eurodac hit. 139 DIVP. Thus.Victor Stephany (i6123480) Maastricht University the number of persons effectively resettled. Article 37 of the Commission Proposal offers Member State a possibility to deviate from the corrective allocation mechanism for a twelve months period.000 per applicant to the Member States that were determined as responsible for examining those applications. in exchange for a solidarity contribution of EUR 250. 36. The Member State responsible must confirm immediately the receipt of the notification to the Member State which made the notification. 26(1) of the Commission Proposal. such as family in another Member State. it may no longer give a decision on the take back request. is higher than 150% of the reference number138 for that Member State139 – all new applications for which that Member State is responsible are allocated to other Member States. Art. applicants may wait up to 10 months (in the case of "take back" requests) or 11 months (in the case of "take charge" requests) before the procedure for examining the claim for international protection starts. the reference number is determined by applying a specific reference key – based equally on the size of the population and the total GDP of the Member State. 143 The take charge request must be lodged as quickly as possible and in any event within one month (instead of three months under the current system) of the date on which the application for international protection was lodged (Commission Proposal. shared proportionally and on the basis of the reference key140. 141 Tot that end. Art. the applicant will be transferred to the Member State which would consequently be responsible. Procedures 1. 1.

2. is legally present in another Member State. certain aspects of the DIVP are contestable. resulting in a risk of inhuman or degrading treatment. In addition to establishing specific. Art. which relates to the non-transfer to the Member State responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State. in the case of minors. In any case. Art. A new remedy is introduced for cases where no transfer decision is taken. 147 DIVP.Victor Stephany (i6123480) Maastricht University 1. the proposal has overall a highly coercive character in order to ensure compliance. First. The notification to the applicant of the decision to transfer him from one Member State to the Member State responsible must now be made ‘in writing without undue delay’145.1. short time limits146. The DIVP moreover limits the scope of the effective remedy to an assessment of whether there is or not a violation of Article 3(2) of that Regulation. Procedural safeguards Procedural safeguards granted to the applicant for international protection under the DIVP are slightly increased. Should applicants not respect 145 DIVP. and the applicant claims that a family member or. It is however doubtful that the logic of fear will be very effective – in addition to raising serious human rights concerns (see infra). Furthermore. 27(1) and (2). 28(2) of the DIVP. Member States must now provide for a period of 7 days after the notification of transfer decision for the applicant to exercise her/his right to an effective remedy.3. 28(3). making use of a remedy automatically suspends the transfer147. 146 Under Art.2. it reduces rights of the applicants and the scope to consider humanitarian needs. CRITICAL APPRAISAL OF THE PROPOSAL 2. It maintains responsibility criteria with no room for choice of the applicant and by permitting random allocation. It therefore imposes obligation on applicants underpinned by severe sanctions and procedural consequences. Efficiency By retaining Dublin’s core principles and its contested responsibility criteria. the rules on remedies have been adapted in order to considerably speed up and harmonise the appeal process. it is uncertain whether the DIVP is correctly designed to address past deficiencies and ensure swift access to international protection procedures. also a relative. 29 . and will not improve the situation of international protection seekers.

In that respect.Victor Stephany (i6123480) Maastricht University their obligations. carrying out admissibility screening and taking responsibility for inadmissible applications. ‘The Reform of the Dublin III Regulation’ [2016] PE 571. Applications for international protection in the EU have always been concentrated in a few Member States – external border and ‘attractive’ Member States. Meijers Committee. ‘Note on the proposed reforms of the Dublin Regulation (COM(2016) 197). 4. Dublin IV will be as inefficient and disruptive to the functioning of the CEAS as its predecessors. and the proposal for an EU Asylum Agency (COM(2016) 271 final)’ [2016] available at www. This is due to the fact that border Member States bear under the DIVP huge obligations: identifying applicants. it seems that the DIVP is dedicated to the enforcement of allocation rules and repression of secondary movements. Next. due to the shortened deadlines for take charge requests. with a potential generalisation of curtailment of procedural rights and of the accelerated procedure148. The allocation of responsibility for examination of applications is also exposed to the risk of becoming more unbalanced. the corrective allocation mechanism will not be very helpful for border Member States. Directorate-General for Internal Policies. with only limited solidarity tools proposed by Dublin IV. since it does not exempt those States from carrying out the obligations depicted above149. available at www. It does not seek to ensure the respect of the fundamental rights 148 Francesco Maiani.europa. 36. Thus. registering their claims. In addition. even if the applicant has returned to her/his country of origin for an extended period of time and that his/her personal or familial situation has changed in the interim or the conditions in the responsible Member State have altered substantially. 149 Francesco Maiani. Meijers Committee (n 148) 2. the Eurodac recast proposal (COM(2016) 272 final). at the expense of core CEAS objectives. Directorate-General for Internal Policies (n 148) 37. in proportions varying according to the degree of compliance of the applicant with the obligation to lodge the application in the first Member State irregularly entered – and this situation is not likely to change with the DIVP. Dublin IV is intended to ensure the functioning of the Dublin system and to allocate responsibility according to a criteria scheme. regarding the set of procedural steps incumbent to the requesting Member State.europarl. Furthermore.eu (18 July 2016). 30 . security cases and presumptively unfounded claims. The abolition of all clauses relating to the cessation or the shifting of responsibilities will not improve that situation.360. the reform proposed by the Commission implies that the same Member State will be responsible for any application submitted at any time.commissie- meijers. already overburdened Member States will be charged with additional tasks.nl (18 July 2016). the DIVP could lead to an even more unbalanced system which increases the disparities of workload between the Member States. The one-month time limit is indeed very likely to be missed.

151 Francesco Maiani. the DIVP proposes a set of measures designed to address those difficulties. even though such a choice has not proved to be quick and efficient in the past for placing applicants in international protection procedures. thereby causing extended proceedings. 31 . Plus. 7 and the DIVP. the main factors that make the Dublin process cumbersome remain untouched. the Commission has always failed to acknowledge that secondary movements may be caused by deficiencies in certain Member States regarding the implementation of EU standards. Nevertheless. even in terms of efficiency151. As described above. Directorate-General for Internal Policies (n 148) 38.Victor Stephany (i6123480) Maastricht University of the applicants for international protection 150. the DIVP opted for the no-choice policy by conserving the same allocation criteria. application of the allocation criteria will indicate the responsible Member State and a transfer decision will have to be adopted and notified – potentially generating litigation from the applicant – and that transfer will entail a security check by the responsible Member State before being effectively carried out. On the contrary. That is not surprising: in terms of efficiency as schemes based on political allocation criteria and involuntary transfers necessarily imply “heavy” administration and intergovernmental procedures involving complex fact-findings and transactions. Since the creation of the Dublin system. only a very small share of the agreed transfers were effectively carried out under Dublin II and III. which are unlikely to ensure effective and swift access to status determination procedures. Furthermore. then checking whether the family reunification criterion do not indicate this Member State as responsible. Afterwards. recital 32. See for instance April 2016 Communication. Meijers Committee (n 148) 4. 150 Francesco Maiani. This can be observed inter alia in the disproportionate sanctions imposed on applicants who do not comply with their obligations. Of course. another Dublin procedure will take place in the benefitting Member State. Dublin IV – like its predecessors – is seeking to achieve an objective set out in Article 78(2)(e) of the TFEU (establishing criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection) while neglecting protection imperatives laid down in Article 78(1) of the TFEU as well as fundamental rights. transfers decided without the consent of the applicant are likely to be challenged by the latter. The corrective allocation mechanism proposed by Dublin suffers from similar administrative constraints: the benefitting Member State must in any case launch screening for the admissibility of the claim and accelerated procedures. Directorate-General for Internal Policies (n 148) 37. This approach is therefore debatable. possibly followed by another transfer and subsequent litigation. if not.

2.ejiltalk. the possibility offered to Member States to not take part in the corrective allocation mechanism by a paying a lump sum for each applicant not relocated on their soil could lead to instances of discrimination by allowing Member States to choose which applicants to accept or reject on the basis of religion. Regarding the corrective allocation mechanism. Art. many members of the European Parliament criticised the financial contribution possibility (European Parliament. In addition.Victor Stephany (i6123480) Maastricht University Thus.washingtonpost. But can it work?’ [2016] Eurosearch.2. in France (‘Le maire de Roanne ne veut accueillir que des réfugiés chrétiens’ Le Monde (Paris. in order to avoid compromising the reception and procedural conditions of applicants for international protection who are already in the Member State until the figure is reached153.g. Slovakia (‘Slovakia will take in 200 Syrian refugees. Directorate-General for Internal Policies (n 148) 39. selon Viktor Orban’ Le Soir (Brussels.com (21 August 2016). available at eurosearch. human rights issues that could arise must be pointed out.2.lesoir. Besides. but they have to be Christian’ The Washington Post (Washington.wordpress. it pursues efficiency through sanction and a reduction of rights. ‘The Commission’s plan for reforming EU asylum policy is very ambitious. 3 September 2015) available at www. It would seem more logical to trigger this mechanism as soon as capacity is exceeded. The scale of the solidarity contribution mechanism is however so large that its application could seem unrealistic (in that respect. available at www. it is hard to understand why such a high threshold – 150% of the capacity of the Member States in question – has to be reached before activating it. 7 September 2015) available at www. ‘Leap Ahead or More of the Same? The European Commission’s Proposed Revisions to the Dublin System’ [2016] Ejil: Talk!.europarl. ‘Dublin rules: MEPs reiterate call for solidarity among EU member states’ [2016] Press release.com (21 August 2016)) or Hungary (‘L’afflux des réfugiés menace l’identité chrétienne de l’Europe. 2. 155 DIVP. 154 Discrimination on grounds of religion could be particularly problematic.org (25 August 2016). see Jean-Pierre Gauci. In this regard. 32 .be (21 August 2016).1. On the contrary. see Dimiter Toshkov. 19 August 2015) available at www.europa. as recent events have shown e. Appeal is now accompanied by a fully automatic suspensive effect155 and explicitly 152 Francesco Maiani.eu (25 August 2016)). 28(2).fr (21 August 2016)).lemonde. Remedies Several changes brought by the DIVP may be welcomed regarding the right to an effective remedy. ethnicity or nationality154. In that perspective. there is no reason to state that this new system will speed up the Dublin relocation system152. 153 One may also argue that the DIVP is unfair for non-overburdened Member States for which the allocation of applicants will stop as soon as they reach 100% of their capacity. Human Rights The DIVP has not been designed to increase human rights standards for international protection applicants. available at www.

In the latter. 10. 7 June 2016). 156 Article 27 of the Dublin III Regulation only ensures the right to an effective remedy ‘against a transfer decision’. ‘which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’ (para 62). In that case. (n 139) 5). 160 Case C-394/12 Shamso Abdullahi v Bundesasylamt (CJEU. the applicant challenged his transfer decision. 13 and 18 of the DIVP)158.eu (18 August 2016). The Court concludes from these provisions that Article 27 in conjunction with recital 19 of the Dublin III Regulation amounts to an obligation to grant a comprehensive legal remedy regarding the correct application of the criteria: ‘in a situation such as that in the main proceedings. According to Francesco Maiani. such as the right to family life or the child’s best interests’ (see Meijers Committee.Victor Stephany (i6123480) Maastricht University includes the right to challenge the decision not to transfer on grounds of family unity156. the DIVP drastically reduces the scope of appeals. the obligation to grant the right to be heard in a personal interview (Article 5 Dublin of the III Regulation) and the procedural guarantees regarding notification and the right to an effective remedy in Article 26 and 27. ‘Dublin is dead! Long live Dublin! The 4 May 2016 proposal of the European Commission’ [2016] EU Immigration and Asylum Law and Policy. The CJEU held that as the EU legislature has introduced or enhanced various rights and mechanisms guaranteeing the involvement of asylum seekers in the process for determining the Member State responsible. under Article 47 of the EU Charter of fundamental rights. 159 DIVP. in an appeal against a decision to transfer him. Nevertheless. Dublin IV clarifies that period by explicitly stating that an appeal may be lodged up to 7 days after the notification of a transfer decision. which was applicable in the case which gave rise to the Abdullahi decision (para 46). 13. Dublin III differs. available at eumigrationlawblog. 161 Case C-63/15. Dublin III provided for a right to appeal of a transfer decision within ‘a reasonable period of time’. to a significant degree. Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie (CJEU. Article 28(5) of the new Regulation limits it to transfers to a Member State where systemic flaws in international protection procedures entail a risk of inhuman or degrading treatment (Art. Regarding time limit. an asylum seeker is entitled to plead. which has been recently overruled by the Ghezelbash161 and the Karim162 cases (concerning Dublin III). the CJEU held that a transfer decision can be challenged by the applicant on grounds of misapplying the allocation criteria (in this case relating to first irregular entry) only if there are systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in the requested Member State. 158 Constantin Hruschka. The Commission justifies this restriction stating that specifying the scope of the appeal will increase the effectiveness of the right to judicial remedy159. from Dublin II. 3(2) of the Dublin IV Regulation) or transfers in breach of the family criteria including minors and dependent persons (Art. In that case. One can assume that decisions not to transfer an applicant cannot be challenged before a court pursuant to the Regulation. Directorate-General for Internal Policies (n 148) 39. the 33 . 157 Francesco Maiani. arguing that the criterion relating to the grant of a visa had been misapplied. the delimitation of the scope of appeal is inspired by a restricting reading of the Abdullahi case (concerning Dublin II)160. The fact remains that applicants will enjoy reduced protection regarding the right to appeal. An effective remedy must be available. It may be expected that that new rule will improve the situation in Member States with the lowest standards while being regressive in respect of Member States with higher standards157. The CJEU reasoning is inter alia based on the information obligations by the Member States (Article 4 of the Dublin III Regulation). 10 December 2013). wherever a decision not to transfer ‘affects the asylum applicant in the enjoyment of his or her fundamental rights.

where the ECtHR held that ‘the decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3. available at www. see Constantin Hruschka. Regarding the expulsion or seriously ill persons. According to Constantin Hruschka. The CJEU reached the same conclusion as in Ghezelbash: the applicant must have the possibility to challenge the transfer decision. It is also essential for ensuring compliance with the Reception Conditions Directive. Sovereignty clause Another fundamental rights issue relates to the sovereignty clause. 2 May 1997)). the latter imposes that transfers exposing applicants to inhuman or degrading treatments – no matter whether there are systemic flaws or not – be subject to appeal163. including the correct application of the responsibility criteria and the cessation provisions. 23 February 2012) para 198. Hirsi Jamaa and Others v Italy App no 27765/09 (ECtHR. 2. this means that in addition to the correct application of the responsibility criteria.2. Such a possibility is no longer available under Dublin IV. 164 Constantin Hrushcka and Francesco Maiani.asylumlawdatabase. where the humanitarian grounds against the removal are compelling’ (para 31). 30 June 2015)). For a commentary on that case law. ‘Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State 34 . the situation where the applicant is critically ill and appears to be close to death. one might wonder whether the regression brought by the DIVP could violate Article 13 of the ECHR on the right to an effective remedy. In that case. George Karim v Migrationsverket (CJEU. firstly. “independent and rigorous scrutiny” of any complaint made by a person in such a situation. see the A. 2 Dublin III Regulation (n 174).eu (21 June 2016). 162 Case C-155/15. Having regard to that conclusion. but only in a very exceptional case. This clause allows the Member States to renounce a transfer if it would breach fundamental rights of the applicant (Art. the court must also examine whether there is a cessation ground according to Article 19 (2) al. whether or not there are systemic flaws. where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3”. v Switzerland case (App no 39350/13 (ECtHR. for instance. 163 See the Tarakhel case (n 93) where the ECtHR held that Article 3 of the ECHR ‘requires. incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Regulation. responsibility of the requested Member State was based on the cessation ground in Article 19(2) of Dublin III. shelter or social support (D v UK App no 30240/96 (ECtHR. Indeed. in particular the criterion relating to the grant of a visa set out in Article 12 of the Regulation’ (para 61).S. 17(2) of Dublin III). ‘Strengthening effective remedies for asylum seekers in the Dublin procedure: from Abdullahi to Ghezelbash and Karim’ [2016]. 7 June 2016).Victor Stephany (i6123480) Maastricht University the CJEU underlines that its reasoning in Abdullahi is no longer valid and confirms that the scope of the effective remedy also comprises the correct application of the Dublin III Regulation. The ECtHR however considered in that case that the applicant had access to an effective remedy (para 126). can not be guaranteed any nursing or medical care in his country of origin and has no family there willing or able to care of him or provide him with even a basic level of food. if he is in the possession of means of proof that he or she had been outside the Member States’ territory for three or more months. which can be problematic in cases where the application of the sovereignty clause is mandatory under human rights law164.2. A very exceptional case is. which requires offering the possibility to challenge any decision arguably breaching any right enshrined in the ECHR.

‘it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible. By doing so. 166 In a 2015 communication. the Council. access to status determination will be swifter if the application is examined where applicant resides. the Commission called upon the Member States to ‘make a broader and regular use of the discretionary clauses. preamble recital 21. Two comments can be formulated in that respect. the European Economic and Social Committee and the Committee of the Regions. the Commission intends to quickly determine the responsible Member State as well as discouraging secondary movements of unaccompanied minors. (…) designating as responsible the Member State in which the minor is present after having responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)’ in Kay Hailbronner and Daniel Thym (eds). 1478. 35 . which means that. the ‘best interest’ argument evoked by the Commission regarding secondary movements overrules the case law of the CJEU. unless this is not in the best interests of the minor (Article 8(4)). Directorate-General for Internal Policies (n 148) 40. as a rule.Victor Stephany (i6123480) Maastricht University Arguably the Commission proposes to limit the scope of the sovereignty clause as the latter ‘may undermine the effectiveness and sustainability of the system’165. 169 Case C-648/11. 2. ‘Communication from the Commission to the European Parliament. 165 DIVP. Indeed. 5 and 17 and preamble recital 20. the justification of quick determination of the Member State responsible is not utterly convincing: as for the sovereignty clause. Second.2. the Member State of first application is responsible. First. Furthermore. allowing them to examine an asylum application and relieve the pressure on the frontline Member States’ (Commission. EU immigration and asylum law : a commentary (OUP 2016). As we have seen. It is nonetheless strange that one year ago the Commission called for the ‘broader and regular use’ of the discretionary clauses166. ‘which are not in their best interest’168. the latter stated in the MA case that ‘unaccompanied minors form a category of particularly vulnerable persons’ and. unaccompanied minors should not be transferred to another Member State’169. BT and DA v Secretary of State for the Home Department (CJEU. the use of the sovereignty clause contributes to the effectiveness of the system rather than undermining it: the most efficient way to put an applicant in the procedure is to examine her/his claim where it is lodged167. 168 DIVP. the DIVP provides that in the absence of family relationships. 6 June 2013) para 55. 167 Francesco Maiani. A European Agenda on Migration’ COM(2015) 240 final.3. Unaccompanied minors Unaccompanied minors’ fundamental rights under the DIVP also raise questions. for that reason. 13). The CJEU further held that ‘taking into account the child’s best interests requires. MA. in principle.

171 Francesco Maiani. ‘Fundamental rights implications of the obligation to provide fingerprints for Eurodac’ [2015] available at fra. Directorate-General for Internal Policies (n 148) 41. Material reception conditions First. preamble recital 30 and Art. for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast)’ COM(2016) 272 final. as a consequence. indubitably raises fundamental rights issues. 2. . 173 Committee on the Rights of the Child (CRC). ‘States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State in compliance with the Convention [on the Rights of the Child] and other international obligations’.2. Article 5(3) provides for the deprivation of the applicant from all material reception conditions. The CRC states in particular that. Besides.org (21 June 2016) 11.europa. as well as depriving unaccompanied minors of the right to be represented if they are not in the Member State where they are obliged to be present. Penalties for applicants The coercive path taken by the Commission. ‘Proposal for a Regulation of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 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]. This does not seem 170 Ibid.eu (21 June 2016) 2 and 9. save only emergency health care.4.ohchr. Treatment of unaccompanied and separated children outside their country of origin’ [2005] available at www2. Therefore. 2(4). See European Agency for Fundamental Rights. ‘General Comment no 6. augment delays in the procedure171. aside from being debatable from the point of view of effectiveness.Victor Stephany (i6123480) Maastricht University lodged an application there’ 170 . This could be at odds with the recommendations of the UN Committee for the Rights of the Child173 and jeopardise the effectiveness of other rights of minors provided by the DIVP such as the right to appeal174. The DIVP provides for two kinds of penalties. Directorate-General for Internal Policies (n 148) 41. 36 . in order to ensure unaccompanied child’s best interests. subjecting children to fingerprinting from the age of six. without completely ruling out the possibility of sanctions and coercion for non-compliance is problematic with respect to human rights172. 10. the unaccompanied minor’s best interests assessment could form a barrier to her/his transfer to the responsible Member State and. whenever she/he is unlawfully staying in another Member State than the one where she/he is required to be present. 172 Commission. 174 Francesco Maiani. para 60.

und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (CJEU. 11 July 2002). 179 Francesco Maiani. 31 provides the right to housing) and the International Covenant of Economic Social and Cultural Rights (of which Art. Directorate-General for Internal Policies (n 148) 42. See for instance Case C-179/11. 11 provides the right to ‘an adequate standard of living (…) including adequate food. de l’Outre-mer. The deprivation of material reception conditions also risks being at odds with the prohibition of inhuman or degrading treatments provided by Article 4 of the Charter and Article 3 of the ECHR. The CJEU further clarified in Saciri that the Reception Conditions Directive is designed to ensure asylum seekers ‘a dignified standard of living and comparable living conditions in all Member States’ (Case C-79/13. The CJEU also used that context in the interpretation of the Return Directive in the Abida case where it stated that ‘the provisions of Directive 2008/115 are to be interpreted (…) with full respect for the fundamental rights and dignity of the persons concerned’ (Case C-562/13. Omega Spielhallen. ‘Reception and Detention Conditions of applicants for international protection in light of the Charter of Fundamental Rights of the EU’ [2015] available at www. 178 The ECtHR already held that ‘the very essence of the Convention is respect for human dignity and freedom’ (Pretty v UK. 27 September 2012) where the CJEU held that due to the general scheme and purpose of the Reception Conditions Directive. Article 5(3) of the DIVP purports to force Member States to ‘engage in actions contrary to those human rights standards179. If Member States provide material reception conditions that are wholly insufficient and put the applicant at risk of real poverty. 20(3) of the Commission Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast). Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and Others (CJEU. see ECRE. Decisions shall be based on the particular situation of the person concerned. objectively and impartially and reasons shall be given. in order to observe fundamental rights. 29 July 2002) para 65).ecre. The recast proposal of the Commission however intends to remove the reference to sanctions in that provision (Art. In fact. Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida (CJEU. des Collectivités territoriales et de l’Immigration (CJEU. in principle raise 175 That provision reads: ‘Decisions for reduction or withdrawal of material reception conditions or sanctions (…) shall be taken individually. App no 2346/02 (ECtHR. and to the continuous improvement of living conditions’). clothing and housing. 177 The CJEU relied on the concept of human dignity on several occasions in a Dublin context. Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur. A bigger problem is that such a deprivation appears to be hardly compliant with the right to human dignity. the right to human dignity must be respected and protected (para 65). 14 October 2004). For a use of the concept of human dignity in a general context. 37 . Member States shall under all circumstances ensure access to health care (…) and shall ensure a dignified standard of living for all applicants’. COM(2016) 465 final). especially with regard to [vulnerable] persons (…) taking into account the principle of proportionality. See also Kurić and Others v Slovenia App no 26828/06 (ECtHR. 176 See preamble recital 22 which provides that violation of legal obligations ‘should lead to appropriate and proportionate procedural consequences for the applicant and to appropriate and proportionate consequences in terms of his or her reception conditions. For more information on the right to human dignity in the context of EU asylum law. In line with the Charter of Fundamental Rights of the European Union. it could. Cimade. The standard of living that must be ensured to applicants for international protection can be interpreted in the light of other instruments such as the European Social Charter (of which Art. see the case C- 36/02. 26 June 2012) and Christine Goodwin v UK App no 28957/95 (ECtHR.org (21 June 2016). the Member State where such an applicant is present should in any case ensure that the immediate material needs of that person are covered’. 27 February 2014) paras 39-40). 18 December 2014) para 42).Victor Stephany (i6123480) Maastricht University to comply with Article 20(5) of the Reception Conditions Directive175 and even with the Regulation itself176. enshrined in Article 1 of the EU Charter177 and reflected in the case law of the ECtHR178.

luttepauvrete. Appropriate and proportional procedural consequences Second. The exclusion of the schooling of minors could also constitute a breach of the right to education of minors. 182 Tarakhel v Switerland (n 93) para 122. if the applicant has withdrawn her/his first application and then makes an application in another Member State. which is brought to her/his notice only once the application is lodged (Art. which entails limited leeway for the applicant and that her/his application risks to be rejected in the absence of new elements (Art. La contribution de la Cour européenne des droits de l’homme’ [2008] available at www. see Françoise Tulkens and Sébastien Van Drooghenbroeck. see the judgment of the ECtHR Larioshina v Russia App no 56869/00 (ECtHR. the DIVP provides for ‘appropriate and proportional procedural consequences’ in the event the applicant is not in the Member States where he must be. her/his last application will be considered as a subsequent application in accordance with the asylum procedures directive. para 62. the claim will be examined under an accelerated procedure if the applicant lodges her/his application in the ‘wrong’ Member State OR if the applicant. 183 Francesco Maiani. was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously’181. 20(4) of the DIVP). For further information. 23 April 2002) where the ECtHR held that ‘a complaint about a wholly insufficient amount of pension and the other social benefits may. . The ECtHR reiterated that critierion in Kutepov and Anikeyenko v Russia App no 68029/01 (ECtHR. It took into account ‘that the applicant. ‘Pauvreté et droits de l’homme. v Belgium and Greece (n 86) para 232.be (24 June 2016). Furthermore. In addition. The ECtHR similarly took into account the applicants’ inherent vulnerability when considering the reception conditions of asylum seekers in Italy in its Tarakhel v Switzerland decision182. Directorate-General for Internal Policies (n 148) 42-43.S. 38 . lodges a new application in another Member State. being an asylum seeker. Thus.S. recognised by Articles 14 and 24 of the Charter and Article 22 of the Geneva Convention. while her/his application is under examination. 181 M. The first situation is not very fair from a procedural point of view: the applicant cannot have been duly informed in a timely manner of his obligation.Victor Stephany (i6123480) Maastricht University issues under those provisions180. in principle. Besides. raise an issue under Article 3 of the Convention which prohibits inhuman and degrading treatment’. 18 April 2007). the applicant whose application has been rejected and who then made an application in another Member State is deprived from 180 In this regard. the ECtHR found in MSS v Belgium and Greece whereby Belgium and Greece were found to be in violation of Article 3 of the ECHR due to the poor reception conditions in Greece. 6(1) of the DIVP)183.

europa. The Member States greatly differ in respect of the evidence accepted for these criteria. under Dublin III. ‘Communication from the Commission to the European Parliament and the Council. with applicants attempting to travel onwards’ (DIVP. 187 Francesco Maiani. which is often difficult to produce for the asylum applicant. Furthermore.eu (25 June 2016) 27. 39 . The substantial divergence on what is acceptable proof of family connections makes it difficult to determine responsibility. Final Report’ [2016] available at ec. The Commission acknowledged those difficulties and stated in the DIVP itself that ‘the criteria relating to family links were less frequently used. Yet the Commission had told in its communication of April 2016 that sanctions against applicants not present in the Member State where they are obliged to be would be applied ‘without prejudice to the principle of non-refoulement and to the right to an effective remedy’ (Commission. an impossibility to appeal could run against the right to an effective remedy185. 184 Ibid 43. the first check of (in)admissibility and accelerated procedures for examination of the claim under Article 3(3) and (4) of the DIVP are likely to reduce the effectiveness of family unity 187 . 12. 186 Commission. 11.2. even though it is modest. leading to lengthy procedures. Rejecting an application for international protection on this basis without assessing the existence of family in another Member State or the needs of minor may also be at odds with the right to family life recognised under Article 7 of the Charter and Article 8 of the ECHR.Victor Stephany (i6123480) Maastricht University her/his right to appeal (Art. This could be a factor in driving secondary movements. Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe’ COM(2016) 197 final. Plus. since only information and documentation submitted before the interview for determination of the responsible Member State is taken into account and proof of a child-parent relationship that could be needed to certify family connection can take time. 185 ECRE. Directorate-General for Internal Policies (n 148) 43. 20(5) of the DIVP). One could even argue that the DIVP complicates the burden of proof of the applicant regarding family ties. Those last two penalties could increase the risk of refoulement184. ‘Reception and Detention Conditions of applicants for international protection in light of the Charter of Fundamental Rights of the EU’ (n 177). family criteria are ‘not utilised as frequently in practice as they should be’186. mainly due to the difficulty of tracing family or obtaining evidence of family connections.5. 10). It does not however solve a serious issue impeding family reunification in practice: family connections are particularly hard to prove and. Definition of family members Enlargement of the definition of ‘family member’ to siblings and families formed in transit is to be welcomed from a human rights perspective. 2. ‘Evaluation of the Implementation of the Dublin III Regulation. but a main requirement is usually documentary evidence (such as birth or marriage certificate).

The DIVP does not constitute a major turn. it is worth considering increasing the rights of the asylum seeker. Thus. the more it is responsible for her/his claim. it risks encountering the same problems as its predecessors: overburdened Member States with poor reception conditions. As a consequence.Victor Stephany (i6123480) Maastricht University CONCLUSION For more than 25 years. is necessary for them to comply with the Dublin determination of the responsible Member State. Thus. It focuses on the implementation of the current legal framework by means of increased coercion – with a flavour of burden sharing – rather than rebuilding the whole system on a new basis. evidence issues (particularly regarding family links). the DIVP fails to acknowledge that attaining Dublin’s objectives of access to asylum procedure and preventing secondary movements of applicants for international protection may depend on other factors. Second. First. in accordance with the reception conditions directive. This could go from establishing a free-choice model where the applicant for international protection may freely choose her/his Member State of application to a system where her/his will is partially taken into consideration. delays in the procedure and other human rights issues such as separation of family members. for instance. This could be achieved. it may depend on the level of implementation of other CEAS instruments such as the reception conditions directive: offering a decent standard of living to applicants for international protection while their claim is pending. the possibility for newly recognised refugees to circulate within the EU (for instance to join family) should increase confidence of applicants in the Dublin system. Third. low rates of completed transfers of applicants. Such a method has proven over time to be inefficient. with positive incentives to cooperate to the procedure rather than coercion. 40 . A cumbersome intergovernmental procedure delays the transfer of the applicants and does not allow a swift access to the international protection procedures. allocation of applicants for international protection depends on objective criteria which are not in the interest of the applicants nor in the interest of the Member States themselves: they are only based on the principle that the more a Member State has participated in the entry on its territory of an applicant. through the establishment of a European refugee status. it is important to reduce administrative complexity and establish a light procedural system. Finally. This room for the choice of the applicant should be accompanied by a burden-sharing mechanism. to reconcile the respective needs and interests of the applicants and the Member States. difficult access to international protection procedures. not only applicants but also recognised refugees could be granted more extensive rights.

41 . in order to reduce the risk of pull factors to and within the Union. Indeed. which shows a possible tension between an effective.Victor Stephany (i6123480) Maastricht University In conclusion. The fact remains that there is ample reason to doubt whether the proposed recast will be effective and efficient for tackling the root causes of the breakdown of the Dublin system. efficient and attractive system and an unworkable but deterrent scheme. any fair assessment of the DIVP cannot conclude that it has satisfactorily addressed the failures of the Dublin system. Member States could be reluctant to offer ‘attractive’ conditions to applicants for international protection. which is not very surprising given the multiple difficult issues being addressed in this politically sensitive area.

Regulation (EC) No 2725/2000 of the Council of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1 .1. on the Gradual Abolition of Checks at Their Common Borders’ [1990] OJ L239/19 42 . European Union legal sources 1. Regulation 343/2003/EC of the Council of 18 February 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 [2003] OJ L50/1 . Protocol on the Consequences of the Dublin Agreement Coming into Effect for Some Regulations of the Schengen Supplementary Agreement’ [1994] . Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60 . Directive 2004/83/EC of the Council 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 [2004] OJ L304/12 . PRIMARY SOURCES 1. Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining the application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 . Directive 2001/55/EC of the Council of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12 . concerning provisions for the implementation of the Convention [1997] OJ L281/01 . Directive 2005/85/EC of the Council of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13 . the Federal Republic of Germany and the French Republic. Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96 .Victor Stephany (i6123480) Maastricht University BIBLIOGRAPHY 1. Directive 2003/9/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 . Council Directive 2003/109/EC of 25 November 2003 concerning the status of third- country nationals who are long-term residents [2003] OJ L16/44 .1 EU legislation . Decision No 1/97 of 9 September 1997 of the Committee set up by Article 18 of the DC of 15 June 1990.1.

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