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Conception and layout: Annie Fourny

Right of asylum, right to asylum, principle of non-refoulement. Three common expressions both in
everyday language and in refugee law.
What do these concepts address? Do they have a legal basis?
In everyday language, we also hear the notion of diplomatic asylum, which we will discuss later.
In the formulation Asylum Law, one could distinguish between the right of asylum and the right to
asylum. They represent two points of view: the right of the State and the right of the individual.
– The right of asylum is the right of the State. This means that granting asylum is a matter of
state sovereignty. It can only be a peaceful and humanitarian act. Art. 2(2) of the African
(AU former OAU) Convention Governing the Specific Aspects of Refugee Problems in
Africa states that: “The grant of asylum to refugees is a peaceful and humanitarian act and
shall not be regarded as an unfriendly act by any Member State.”
– The right to asylum is the right of a person (to seek asylum). It is important to understand
it by analyzing several texts.

Art. 14(1) UDHR reads as follows: “Everyone has the right to seek and to enjoy in other countries
asylum from persecution.”
One could conclude that there is a universal right to asylum, a subjective right that persons fleeing
one state may assert vis-à-vis other States. However, that is not the case.
First, this “declaration” is a non-binding text. Second, it does not enshrine the right of entry into a
third country. It merely provides for the right to seek and enjoy asylum, but in other countries. To do
so, one must first have entered the territory of a state other than one’s own.
Let us now look at what this means in binding texts.

None of these binding texts of law recognizes a freedom to cross borders to enter and settle in the
territory of a state.
The right for any person to leave any country, including their own, as well as the right to return to
their own country is contained in several human rights protection texts (Art. 12(2) ICCPR; Prot. 4
Art. 2(2) ECHR; Art. 12(2) ACHPR).

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There is a paradoxical right to emigration (leaving) without a right to immigration (entering). We
could call it the paradox of the “stork’s suspended step.” Taken from the title of a film by the
Greek filmmaker Theo Angelopoulos, this image illustrates the state of international law with
regard to the migrant: the stork can lift its foot above a border line (exit) but cannot put it down
on the other side (enter).
Some regional texts contain the word asylum, but do not deal with the right to enter the territory
of a third state:

Art. 12(3) ACHPR states that: “Every individual shall have the right […] to seek and obtain asylum
in other countries in accordance with the law of those countries and international conventions.”

Art. 18 CFR provides that: “The right to asylum shall be guaranteed with due respect for the rules
of the Geneva Convention […]”
What does this essential text, the 1951 Geneva Convention, say exactly? It defines protected
persons, regulates the determination of refugee status (definition of inclusion, cessation and
exclusion) as well as their rights and freedoms. The Geneva Convention does not enshrine in any
of its provisions any human right to asylum, not even for those who have been recognized as
refugees. According to the Geneva Convention, asylum is left to the discretion of States. It is a
prerogative of their territorial sovereignty.
Beyond the definition of refugee (Art. 1), and the status of refugee (Art. 2–34), there is a third
element: the principle of non-refoulement (Art. 33), which is fundamental. Art. 33 is entitled
“Prohibition of expulsion or return (‘refoulement’)” and states that:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there
are reasonable grounds for regarding as a danger to the security of the country in which he is,
or who, having been convicted by a final judgment of a particularly serious crime, constitutes a
danger to the community of that country.
It is a negatively formulated right and restricted by paragraph 2. We will come back to this later
when we define the personal scope of the principle of non-refoulement.
Despite these two limitations—negative wording and restrictions—it is a cardinal, central provision
of the Geneva Convention.
This provision is the basis of the right to asylum: to not be returned to persecution.
In this sense, it is a sort of extension of the right of any person to leave any country, including their
own. The principle of non-refoulement is, for the specific category of migrants that are refugees, a
half-open door. It does not give them the right to asylum, but the right not to be deported back to
the country they have fled.
Asylum seekers benefit from it if they comply with the terms of Art. 33, which presupposes an
analysis of their case. Their application for protection will have to be examined and, during the
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time of that examination, they must necessarily, logically, have access to the territory, albeit
temporarily and sometimes with detention in border areas. The principle of non-refoulement thus
enshrines a right to provisional asylum while the application is being examined.
The principle of non-refoulement does not have its basis in the Geneva Convention alone.
Art. 3(1) UNCAT includes the principle of non-refoulement, but only in relation to the risk of torture:

No State Party shall expel, return (“refouler”) or extradite a person to another State where
there are substantial grounds for believing that he would be in danger of being subjected to
torture.
The principle of non-refoulement is also included in Art. 5 Return Directive:

When implementing this Directive, Member States shall take due account of: (a) the best
interests of the child; (b) family life; (c) the state of health […] and respect the principle of non-
refoulement.
This principle of non-refoulement is also protected by international jurisprudence through the concept
of “vicarious human rights violations.” According to the term “ricochet,” violation “par ricochet”
is an indirect, backlash violation of human rights. A certain State would not directly violate the right
concerned but would indirectly participate in the violation. In migration law, the consequential
violation considers the human rights effects of a decision to refuse access to the territory or to
expel a person. Direct violations occur abroad, but the violation in question can also be attributed,
“par ricochet” to the State expelling or returning an alien. The negative obligation of the State not
to violate human rights and the positive obligation to protect human rights lead to the possibility
that a State be held responsible for a human rights violation because it is a link in a causal chain
leading to the violation.
ECtHR, Soering v. United Kingdom, 1989. The Soering case is the leading case. It was pronounced in
an extradition case and its reasoning now extends to cases of expulsion or refusal of access to the
territory. According to § 91:

In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue
under Article 3 [ECHR], and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing that the person concerned,
if extradited, faces a real risk of being subjected to torture or inhuman or degrading treatment
or punishment in the requesting country. The establishment of such responsibility inevitably
involves an assessment of conditions in the requesting country against the standards of Article 3
[ECHR]. Nonetheless, there is no question adjudicating on or establishing the responsibility
of the receiving country [the United States], whether under general international law, under the
Convention or otherwise. In so far as any liability under the Convention is or may be incurred,
it is liability incurred by the extraditing Contracting State [the United Kingdom] by reason of
its having taken action which has as a direct consequence the exposure of an individual to
proscribed ill-treatment.
HRC, Kaba v. Canada, 2010, § 10.1 (violation of Art. 7 ICCPR):

As to the author’s claim that expelling her daughter Fatoumata Kaba would entail a risk of
being subjected to excision by her father and/or members of the family, the Committee recalls
that States parties are under an obligation not to expose individuals to a real risk of being

4
 killed or subjected to torture or cruel, inhuman or degrading treatment or punishment upon
entering another country by way of their extradition, expulsion or refoulement.
Finally, let us consider one last concept that is often discussed: diplomatic asylum. According to
the definition of a refugee, to be recognized as a refugee, one must be outside one’s country of
origin. The Geneva Convention does not enshrine a right to diplomatic asylum in a diplomatic
post, although the diplomatic post remains protected.
The right to diplomatic asylum is also an exercise of sovereignty. It is enshrined in some regional
texts, such as the 1954 Caracas Convention, ratified by 14 South American States. Art. 1 states:

Asylum granted in legations, war vessels, and military camps or aircraft, to persons being
sought for political reasons or for political offenses shall be respected by the territorial State in
accordance with the provisions of this Convention.
For the purposes of this Convention, a legation is any seat of a regular diplomatic mission, the
residence of chiefs of mission, and the premises provided by them for the dwelling places of asylees
when the number of the latter exceeds the normal capacity of the buildings.
To sum up, the principle of non-refoulement is a half-open door with various legal bases. However,
one must still reach this door and be considered a subject of protection. This is why we must
examine the personal and territorial scope of the principle of non-refoulement.

Art. 14(1) UDHR (1948): “Everyone has the right to seek and enjoy in other countries asylum from
persecution.”
Art. 12(2) ICCPR (1966): “Everyone shall be free to leave any country, including his own.”
Art. 3(1) UNCAT (1984): “No State Party shall expel, return (‘refouler’) or extradite a person to
another State where there are substantial grounds for believing that he would be in danger of being
subjected to torture.”
Art. 33(1) Geneva Convention (1951): “No Contracting State shall expel or return (‘refouler’) a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group or
political opinion.”
Protocol No. 4 Convention for the Protection of Human Rights and Fundamental Freedoms,
securing certain rights and freedoms other than those already included in the Convention and in
the first Protocol thereto.
Art. 12(3) African Charter on Human and Peoples’ Rights (1981): “Every individual shall have the
right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws
of those countries and international conventions.”
Art. 2(2) OUA Convention Governing the Specific Aspects of Refugee Problems in Africa (1969):
“The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as
an unfriendly act by any Member State.”
Art. 1(1) and (2) Convention on diplomatic asylum, Caracas (1954): “Asylum granted in legations,
war vessels, and military camps or aircraft, to persons being sought for political reasons or for
political offenses shall be respected by the territorial State in accordance with the provisions of this
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Convention. For the purposes of this Convention, a legation is any seat of a regular diplomatic
mission, the residence of chiefs of mission, and the premises provided by them for the dwelling
places of asylees when the number of the latter exceeds the normal capacity of the buildings”
Art. 18 Charter of Fundamental Rights of the European Union (2000): “The right to asylum shall
be guaranteed with due respect for the rules of the Geneva Convention…”
Art. 5 Directive 2018/115/CE of the European Parliament and of the Council of 16 December
2008 on common standards and procedures in Member States for returning illegally staying third-
country nationals: “When implementing this Directive, Member States shall take due account of:
(a) the best interests of the child; (b) family life; (c) the state of health of the third-country national
concerned, and respect the principle of non-refoulement.”

ECtHR, Soering v. United Kingdom, 1989, § 91: “In sum, the decision by a Contracting State to
extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the
responsibility of that State under the Convention, where substantial grounds have been shown for
believing that the person concerned, if extradited, faces a real risk of being subjected to torture or
inhuman or degrading treatment or punishment in the requesting country. The establishment of
such responsibility inevitably involves an assessment of conditions in the requesting country against
the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question adjudicating
on or establishing the responsibility of the receiving country, whether under general international
law, under the Convention or otherwise. In so far as any liability under the Convention is or may
be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken
action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”
HRC, Kaba v. Canada, 2010 (violation of Art. 7), § 10.1: “As to the author’s claim that expelling her
daughter Fatoumata Kaba would entail a risk of being subjected to excision by her father and/or
members of the family, the Committee recalls that States parties are under an obligation not to
expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or
degrading treatment or punishment upon entering another country by way of their extradition,
expulsion or refoulement.”

J.C. Hathaway and M. Foster, The Law of Refugee Status, 2nd ed. (Cambridge, CUP, 2014) 45–49.
G.S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd ed. (Oxford, OUP, 2007) 4
ff.
M.-T. Gil-Bazo, “Asylum as a General Principle of International Law” (2015) 27 IJRL 1, 3–28.

This negative right not to be expelled to a country where a person is at risk has limits. What are
these limits? What are the circumstances?
We will discuss separately the broad issue of territorial scope.
A priori, everyone benefits from the principle of non-refoulement. Article 33 of the Geneva
Convention, read in conjunction with Article 3 of the same Convention, enjoins States to apply all
the rights recognized to refugees without discrimination as to race, religion, or country of origin.
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The same principle governs the so-called protection by “ricochet” or indirect protection since
international human rights instruments are characterized by a broad personal scope of application.
This can be inferred from the provisions’ wording, which generally either recognize that such a
right belongs to “everyone” or state that “no one” may be deprived of such a right. However, this
broad personal scope of application needs to be clarified.
There are four criteria for determining the personal scope of application of the principle of non-
refoulement:
1. When? This is the temporal criterion, the procedure. Are we talking about an asylum seeker
who asks for refugee status or about a recognized refugee?
2. Where? This refers to the geographical criterion, the journey. Has the refugee come directly
from their country of origin or have they crossed or stayed in transit countries?
3. Who? This is the personal criterion, depending on behavior. Does this person represent a
danger to the host country, or have they committed reprehensible acts?
4. How? This refers to the method. Will the expulsion or refoulement be collective or individual?

Let us distinguish between an asylum seeker and a recognized refugee.

The Geneva Convention prohibits refoulement of the “refugee.” However, if the word “refugee”
were to refer only to the recognized refugee, the provision’s scope would be very limited.
On the one hand, it would not serve any useful purpose. It would partly duplicate Article 32 which
protects a refugee “lawfully in [the] territory” (which is in principle the recognized refugee) against
expulsion and not only against refoulement to “the frontiers of territories where his life or freedom
would be threatened” as stated in Article 33, i.e., mainly to his country of origin.
On the other hand, such an interpretation would make it possible to return an alien who applies
for asylum, who is a candidate refugee, to their country of origin during the application process.
This would be the very negation of the objective of protection.
The declaratory nature of the recognition of refugee status confirms the application of the principle
of non-refoulement to candidate refugees, even if they are still potential refugees.
The Procedures Directive expressly states this by indicating, in Article 9, that there is a right to
remain in the Member State while the application is being examined, at first instance and on appeal,
while specifying that: “That right to remain shall not constitute an entitlement to a residence
permit.”
This right to stay is therefore distinct from a right of residence.
This was confirmed by the CJEU in the Gnandi judgment (2018). A third country national is staying
illegally within the meaning of the Return Directive as soon as the application for international
protection is rejected in the first instance by the responsible authority, regardless of the existence
of an authorization to stay pending the outcome of the appeal. The appeal’s effectiveness, however,
implies that all effects of the return decision are suspended until the outcome of the appeal.
This is indeed a provisional right to asylum, limited to the procedure. It operates even if the asylum
seeker has entered the territory illegally.

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This illegal entry cannot give rise to sanctions, as confirmed by Article 31(1) of the Geneva
Convention:

The Contracting States shall not impose penalties, on account of their illegal entry or presence,
on refugees who, coming directly from a territory where their life or freedom was threatened in
the sense of article 1, enter or are present in their territory without authorization, provided they
present themselves without delay to the authorities and show good cause for their illegal entry or
presence.

Recognized refugees are undoubtedly, protected from refoulement. Art. 33 of the Convention is clear:
the recognized refugee enjoys this negative right not to be returned or expelled.
This right is not synonymous with a residence permit. States have discretionary powers in this
regard. Most grant either a temporary or permanent residence permit. Others simply tolerate the
refugee, sometimes in collaboration with the UNHCR. Sometimes refugees will be resettled in a
third country, where they will then be issued a residence permit.
Regardless of the residence permit issued, the recognized refugee is “lawfully present” in the
territory of the Contracting State, so that he can only be expelled from it “on grounds of national
security or public order,” in accordance with due process of law, and be given a “reasonable period
within which to seek legal admission into another country” (Art. 32 Geneva Convention).
In other words, the recognized refugee’s stay may be considered almost permanent. The right of
residence would be unlimited even if the residence permit, like any identity document, must be
renewed.
However, this right remains only for as long as the refugees enjoy this status. They may lose it
under a cessation clause, either linked to a reassessment of the level of risk or because of their
behavior. The implementation of cessation is discussed, with the exclusion, in more detail in the
module about the refugee definition.

As a reminder, Art. 33(1) Geneva Convention states: “No contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of […]”
The principle of non-refoulement prohibits the return of a person to a country where the person in
question fears for their life or freedom. In practice, this will often be the country of origin. Often,
however, the refugee will have passed through, or in some cases even resided in, other States. Are
they protected against refoulement in such cases? The refugee is protected from being sent back to
any territory where they are at risk. This brings us to two issues: chain returns and presumptions
of safety. The two are linked.
A chain refoulement (sometimes called “cascading”) means that after a first refoulement from one
country X, there will be a subsequent refoulement from this country to a country Y, and maybe
one more to a country Z where the person’s life is at risk.

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The case law on chain refoulement considers this type of “chain” by analyzing whether the transit
country would protect the persons from being returned to their country of origin. The chain is
sometimes a long one.
ECtHR, Singh and Others v. Belgium, 2013. An Afghan family could be sent back to Afghanistan but
via Russia and possibly India.
CAT, Avedes Hamayak Korban, 1998. An Iraqi returned from Sweden to Jordan without having
assessed whether Jordan would protect him from being returned to Iraq.
The Procedures Directive allows States to use presumptions of safety in relation to safe third
countries, including first countries of asylum. These presumptions are, however, rebuttable and do
not absolve the State from a proper examination of the application at first instance and on appeal,
de jure and de facto.

Can the principle of non-refoulement be modulated according to the person’s behavior? Is the person
in question a danger to the host country or has committed reprehensible acts?
The Geneva Convention expressly provides for this exception in Art. 33(2):

The benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, or
who, having been convicted by a final judgment of a particularly serious crime, constitutes
a danger to the community of that country.
The criteria are strict, but this exception is clear.
However, this protection is absolute in other international texts, including Article 3 UNCAT, which
prohibit the violation by “ricochet” of the right to protection against torture and inhuman and
degrading treatment.
The fact that persons cannot be returned to their country of origin does not automatically give
them a right of residence. The persons will either be returned to another country or will find
themselves in a precarious situation of tolerance. Their right of residence deriving from
international protection will be replaced by a right of residence through regularization.
The ECtHR has ruled very clearly in this regard in the Grand Chamber judgment Saadi v. Italy. This
is not universal: for example, the Supreme Court of Canada is less protective and considers that
this right remains relative.

What is said above applies to individual expulsions. What about collective expulsions?
First, we need to define them. Collective expulsion is a measure taken by competent authorities
which forces aliens as a group to leave a country.
To be acceptable, the measure must be taken on a case-by-case basis. The approach is therefore
more qualitative than quantitative. Should the collective nature cover the two stages of the
expulsion order, i.e., the decision and its enforcement?
What does the ECtHR have to say about this? If the State has carried out a serious and objective
analysis of each of the cases, however numerous, the mere collective implementation of individual
decisions is not condemned.
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The case law provides details of this individual examination.
ECtHR, Čonka v. Belgium, 2002. The examination must consider all the factual elements. In Čonka,
the orders to leave the territory were all worded identically and lacked this individual examination.
ECtHR, Hirsi v. Italy, 2012, § 185: “[…] the transfer of the applicants to Libya was carried out
without any form of examination of each applicant’s individual situation. It has not been disputed
that the applicants were not subjected to any identification procedure by the Italian authorities,
which restricted themselves to embarking all the intercepted migrants onto military ships and
disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the
military ships were not trained to conduct individual interviews and were not assisted by
interpreters or legal advisers. That is sufficient for the Court to rule out the existence of sufficient
guarantees ensuring that the individual circumstances of each of those concerned were actually the
subject of a detailed examination.”
The collective nature may also be inferred from the fact that all foreigners of a certain nationality,
ethnicity or community are targeted. Thus, Art. 12(5) ACHPR states that: “Mass expulsion shall be
that which is aimed at national, racial, ethnic or religious groups.”
The African Commission on Human Rights has developed consequential case law on this subject.
The same is true of the Inter-American Court of Human Rights regarding the mass expulsion of
Haitians by the Dominican Republic.

Art. 31, 32 and 33 Geneva Convention (1951).

Art. 12(5) African Charter on Human and Peoples’ Rights (1981): “The mass expulsion of non-
nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic
or religious groups.”
Qualification Directive.
Art. 9 Procedures Directive.

CAT, Avedes Hamayak Korban, 1998. The principle of non-refoulement refers to “the State to which
the individual concerned is being expelled, returned or extradited, as well as to any State to which
the author may subsequently be expelled, returned or extradited” (§ 7). Jordan has not accepted the
right of individual application under Art. 22 of the Convention. Accordingly, Sweden has the
obligation not to send back the individual to Iraq or Jordan.
ECtHR, 17 December 1996, Ahmed v. Austria.
ECtHR, 5 February 2002, Conka v. Belgium.
ECtHR, 28 February 2008, Saadi v. Italy.
ECtHR, 23 February 2012, Hirsi v. Italy, § 185: “[…] the transfer of the applicants to Libya was
carried out without any form of examination of each applicant’s individual situation. It has not
been disputed that the applicants were not subjected to any identification procedure by the Italian
authorities, which restricted themselves to embarking all the intercepted migrants onto military
ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard
10
the military ships were not trained to conduct individual interviews and were not assisted by
interpreters or legal advisers. That is sufficient for the Court to rule out the existence of sufficient
guarantees ensuring that the individual circumstances of each of those concerned were actually the
subject of a detailed examination.”
ECtHR, 2 January 2013, Singh and Others v. Belgium (in French).
ECtHR, 13 February 2020, N.D. and N.T. v. Spain.
CJEU, 19 June 2018, Gnandi.
CJEU, 14 May 2019, M, X and X, §§ 95 and 96: “[…] where the refoulement of a refugee covered
by one of the scenarios referred to in Article 14(4) and (5) and Article 21(2) of Directive 2011/95
would expose that refugee to the risk of his fundamental rights, as enshrined in Article 4 and
Article 19(2) of the Charter, being infringed, the Member State concerned may not derogate from
the principle of non-refoulement under Article 33(2) of the Geneva Convention. […] EU law
provides more extensive international protection for the refugees concerned than that guaranteed
by that convention.”
Supreme Court, Canada, 11 January 2002, Suresh.
Supreme Court, USA, NS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
US. District Court, E. Bay Sanctuary Covenant v. Trump, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).
ACHPR, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea)
v. Guinea, 249/02, December 2004. §§ 67–69: “[…] large scale expulsion [is] a special threat to
human rights. In consequence, the action of a State targeting specific national, racial, ethnic or
religious groups is generally qualified as discriminatory […].”

As we have seen, the foundation of the principle of non-refoulement is Article 33 of the Geneva
Convention. This article is not the only legal basis. This protection also includes the prohibition of
indirect violations of human rights since it considers the risk of violation by the country of removal
which would lead to a third country where there would be, “by ricochet”, a risk of inhuman or
degrading treatment.
We also learned that there is no right to enter a country, but only a negative right not to be returned
by expulsion, refoulement or even extradition.
The words “in any manner whatsoever” in Article 33 of the Geneva Convention are enough to
prohibit any refoulement of any asylum seeker wherever they are. The principle seems clear.
However, for a creditor of a right to claim it, there must be a debtor of that right. The question
arises as to when a state is considered to be bound by the principle of non-refoulement.
We will examine this question from the point of view of the host State and move away from it,
considering successively refoulement from (1) the territory of the host State, (2) the territorial
waters of the host State, (3) the border of the host State, (4) airport “international” zones,
(5) international waters, (6) the airport of the country of origin, and finally (7) the embassy of the
host State in the country of origin or in a transit country.

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For each of these places, the answer to the question of the responsibility of the State regarding
refoulement will be found either in legal texts, or, when they are silent or obscure, in case law. We
will see that case law is evolving and sometimes controversial.

Once an applicant is in the territory of the receiving State, they certainly benefit from the principle
of non-refoulement, whether they entered legally or illegally, it is included in Article 31 of the
Geneva Convention and there is no argument on a territorial level.

This rule also applies in the territorial waters of States, along their coasts, because legally, they are
an integral part of the territory of the State.

This principle will also apply at the State border. As soon as a person approaches the authorities of
the host State at the border control, they benefit from the principle of non-refoulement.
The European Court of Human Rights reminded Lithuania in 2019 that the principle of non-
refoulement applied to border guards who had refused to register asylum applications and
systematically dismissed applicants.

ECtHR, M.A. and Others v. Lithuania, 2019. The Court held that the principle of non-refoulement
applied to border guards (§ 70):

With regard to the Lithuanian authorities’ responsibility, the Court observes that there is no
dispute that all the decisions complained of by the applicants in the present case were taken
by Lithuanian border officials. It is therefore evident that the actions complained of by the
applicants were imputable to Lithuania and thereby fell within its jurisdiction within the
meaning of Article 1 of the Convention.
Another case has given rise to debates before the European Court of Human Rights, the case of
N.D. and N.T. v. Spain. It concerns an allegation of collective expulsion in the Spanish enclaves of
Ceuta and Melilla in Morocco. This case raises the question of the exact location of the border.
The Spanish Government had used the concept of the “operational border,” arguing that the
applicants had failed to go beyond the system of protection at the border post of Melilla. They had
been turned away by the law enforcement authorities responsible for border surveillance. The
European Court of Human Rights avoided the factual dispute over the location, and chose an
approach based on the control exercised by Spain. Rather than deciding whether the applicants
were within Spanish territory at its borders, the Court held that once the plaintiffs came down from
the border barriers they were under continuous and exclusive control, at least de facto, in fact, of
the Spanish authorities. A first chamber ruling concluded that there had been a collective expulsion,
before the matter was referred back to the Grand Chamber, in a judgment of February 13, 2020.
And there is a shift of jurisprudence. The Grand Chamber says that there was no collective
expulsion. The Grand Chamber considers that the principle of non-refoulement does indeed apply
to non-admission at this border. However, in practice, it notes that the persons concerned crossed
the border en masse and with force. There were collective assaults while, the Court says, Spain was
offering real and effective access to opportunities for regular entry. Without limiting the territorial
scope of the principle of non-refoulement, the Court held that the principle “fraus omnia
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corrumpit,” fraud corrupts everything, deprives the fraudster of their rights if they use violence
without a compelling reason. They then lose the rights that derive from the principle of non-
refoulement and the prohibition of collective expulsion.

Are there “neutral” (sometimes called international) zones at borders or airports? “Buffer” zones?
No, these zones are part of the territory.
In a 1996 Amuur case, the Strasbourg Court held France responsible for the fact that Somali asylum
seekers were free to leave the transit zone at Roissy airport to return to Syria, which was a transit
country for them. The Court rejected this argument, stressing that this freedom is theoretical in the
absence of protection in Syria, which is not bound by the Geneva Convention. In implicating
France’s responsibility, the Court establishes its responsibility regarding this area of the airport.

Clearly, international waters are no longer the territory of a State. The case law has had to rule on
the responsibility of State control in international waters.
In Sale (1993), the US Supreme Court ruled on the interception by the US Coast Guard in
international waters of Haitian boat people on their way to the United States. These people were
foreigners and were not yet “within” the territory of the United States, who denied them access.
The Supreme Court did not condemn this practice under the principle of non-refoulement. It held that
the United States was not bound by this principle beyond its territory. The Inter-American
Commission on Human Rights (Case 10.675, report No. 51/96 of 13 March 1997) and UNHCR
(Advisory Opinion) have condemned this approach.
Nearly thirty years later, the ECtHR is faced with a similar issue in the case of Hirsi v. Italy,
concerning boats coming from Libya intercepted by the Italian Coast Guard. The standard at issue
here was not Art. 33 Geneva Convention but Art. 3 ECHR and Art. 4 of Protocol No. 4 prohibiting
collective expulsions. These boats were in the Mediterranean, in the Maltese zone, and were
intercepted by the Italian authorities. The occupants were transferred to Italian military vessels and
immediately escorted back to Tripoli. They were not informed of their rights and did not have
access to the asylum procedure. Italy contested the application of the ECHR, saying that this was
outside Italian jurisdiction. The Court rejects this argument. Admittedly, exceptional circumstances
are required for extraterritorial acts to come under the jurisdiction of a Member State (§ 72).
However, if a State, through its agents, exercises control and authority over a person, that person
enjoys rights under the Convention, even if those agents operate outside the territory of their State.
In the instant case, in addition to the fact that the vessels were flying the Italian flag, the applicants
were subject to the “continuous and exclusive, de jure and de facto control of the Italian authorities”
(§ 81). This case was also an opportunity to recall that the prohibition of violations by ricochet also
applied to the chain refoulements, in this case from Libya to the migrants’ countries of origin, in
particular Eritrea. This obligation is even more important when, as in the present case, the
intermediary country is not a State party to the Convention.
After analyzing the situation in Libya, the Court concluded that “at the time of transferring the
applicants to Libya, the Italian authorities knew or ought to have known that there were insufficient
guarantees protecting the applicants from the risk of being arbitrarily returned to their countries of
13
origin, particularly in view of the absence of an asylum procedure and the impossibility of having
the refugee status granted by UNHCR recognized by the Libyan authorities” (§ 156).

British case law addressed this issue. In the Prague Airport case, a bilateral agreement between the
United Kingdom and the Czech Republic allowed British immigration officers to check all
passengers at Prague Airport. The House of Lords ruled that the principle of non-refoulement did not
apply to them, as they had not yet “left their country of origin,” which is, as we shall see, a criterion
for the application of the refugee definition under Art. 1 Geneva Convention.

What happens when the application is lodged from the diplomatic representation of the State of
destination in the State of origin or, more often, in a transit country? It should be remembered that
an applicant who is still in his or her country of origin does not technically fall within the scope of
the Geneva Convention. But what about an application lodged in a transit country, for example an
application lodged by Syrians at the Belgian embassy in Beirut, Lebanon?
Two judgments of the two major European courts answer this question.
The CJEU started things off in the X and X case. It answered a preliminary question put by the
Conseil du contentieux des étrangers, a Belgian jurisdiction, as to the applicability of European
Union law to a refusal to grant a humanitarian visa to a Syrian family from Aleppo, EU law whose
Article 4 of the Charter of Fundamental Rights prohibits inhuman and degrading treatment. This
family had applied for a short stay visa at the Belgian Consulate. They wanted to travel legally to a
host country and thus avoid the dangers of the Mediterranean.
The CJEU, departing from the conclusions of Advocate General Mengozzi, considered that the
Community Code on Visas did not govern such a situation. That it applies only to short-stay visas.
This family had not hidden the fact that they intended to stay for more than 90 days, since they
intended to apply for international protection from Belgium once on Belgian territory. The Court
thus adopted an approach based on the objective pursued rather than a formal reading based on
the application that has been lodged, which was a request for a short stay. The Court adds that, in
any event, the Procedures Directive, which we will discuss later in Module 5, limits the scope of
the right of asylum to applications made on the territory of the European Union. Consequently,
even an application for a long-stay visa would fall outside the scope of EU law. As a consequence,
the Charter of Fundamental Rights does not apply and neither does the prohibition of violation by
“ricochet” of these same fundamental rights.
This judgment has been the subject of several criticisms. Let us consider two of them.
First, the Court was criticized for having retained the criterion of intention, staying more than three
months, whereas formally, the application submitted was an application for a short stay visa. Such
an approach differs from the criterion used in the decision of the Court of First Instance of the
European Union, who analyzed the compatibility of the agreement between the European Union
and Turkey. In this case, the formal criterion had indeed prevailed over the substantive criterion.
Secondly, the Visa Code expressly provides for the possibility to extend a short stay, in particular
for humanitarian reasons.
Of course, this did not mean that Belgium did not have to issue a visa, but that European law did
not require it to do so. The Court referred the matter back to Member States. The European

14
Parliament issued a proposal to include humanitarian visas in the Visa Code, but it failed to achieve
political consensus.
The same issue came before the ECtHR in the case M.N. The facts were the same, but the central
question here was the application of Article 3 of the European Convention on Human Rights to
humanitarian visa applications submitted in diplomatic representations. Is a person who is in a
consulate, for example a Belgian consulate in Lebanon, under the jurisdiction of Belgium within
the meaning of Article 1 of the European Convention on Human Rights? The scope of this
Convention is defined by Article 1 of the European Convention on Human Rights which uses the
notion of jurisdiction. The notion of jurisdiction implies not only a wide personal scope of
application, but also a wide territorial scope that may engage the responsibility of the States parties
beyond their territory. The Grand Chamber of the European Court decided this question in a
judgment of 5 May 2020. This judgment ruled that the appeal was inadmissible. The Court ruled
that the applicants did not fall under the jurisdiction of Belgium, considering in particular that the
mere fact that these applicants initiated proceedings in a State Party with which they have no
connection was not sufficient to establish the jurisdiction of that State, in this case Belgium, over
them. The Court stated that there were no exceptional circumstances to establish such a link
between the applicants and Belgium, even though they were going to be hosted by a family in
Belgium. It also stated that diplomatic agents never exercised de facto control over the applicants,
who had freely chosen to apply to the Belgian embassy and remained free to enter and leave the
embassy at will. There was some administrative control by Belgium over the premises of its
embassy, but the Court found that it was not sufficient to create this jurisdictional power.

Regulation EC No 810/2009 from the European Parliament and the Council of 13 July 2009
establishing a Community Code on Visas (Visa Code), OJ, L243/1, 15 September 2009. Article 33
concerns the visa extension.

ECtHR, 11 March 2019, M.A. and Others v. Lithuania, § 70: “With regard to the Lithuanian
authorities’ responsibility, the Court observes that there is no dispute that all the decisions
complained of by the applicants in the present case were taken by Lithuanian border officials. It is
therefore evident that the actions complained of by the applicants were imputable to Lithuania and
thereby fell within its jurisdiction within the meaning of Article 1 of the Convention.”
ECtHR (GC), 13 February 2020, N.D. and N.T. v. Spain. The Grand Chamber judgment maintains
a broad interpretation of the principle of non-refoulement but concludes that, in this case, there has
not been a collective expulsion, as opposed to the chamber judgment N.D. v. Spain (2017 with
referral to the Grand Chamber).
ECtHR, 28 January 2014, Abdul Wahab Khan v. United Kingdom.
ECtHR, 23 February 2012, Hirsi v. Italy.
ECtHR, 25 June 1996, Amuur v. France, § 48: “This possibility becomes theoretical if no other
country offering protection comparable to the protection they expect to find in the country where
they are seeking asylum is inclined or prepared to take them in. […] Syria was not bound by the
Geneva Convention relating to the Status of Refugees.”
CJEU, X and X, 2018 and opinion of Advocate General as well as the same case dealt with by the
ECtHR; ECtHR, 5 March 2020, M.N. v. Belgium (after reference to the Grand Chamber M.N. v.
15
Belgium, November 2018). The Grand Chamber has declared this application inadmissible (5 May
2020). It held that the applicants were not subject to the jurisdiction of the Belgian State,
considering, inter alia, that “the mere fact that an applicant initiated proceedings in a State Party
with which he had no connection could not suffice to establish that State’s jurisdiction over him”
(§ 123).
Supreme Court, USA, Sale, 1993.
Inter-American Commission on Human Rights, Sale, 1997.
House of Lords, UK, 9 December 2004, Regina v Immigration Officer at Prague Airport and another ex
parte European Roma Rights Centre and Others (2004) UKHL 55.

G. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed., OUP, 2007) 201–283.
J. Hathaway, The Rights of Refugees Under International Law (Cambridge, CUP, 2005) 278–369.
V. Chetail, International Migration Law (Oxford, OUP, 2019) 186–199.

Th. Gammeltoft-Hansen, Access to Asylum (Cambridge, CUP, 2011).

G. Gortazar Rotaeche, Derecho de asilo y “no rechazo” del refugiado (Madrid, Dykinson, 1997).
J.C. Hathaway, The Rights of Refugees Under International Law (Cambridge, CUP, 2005).
W. Kälin, Das Prinzip des Non-refoulement (Bern, Peter Lang, 1982).
V. Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU
Law (Oxford, OUP, 2017).

V. Chetail, “Le principe de non-refoulement et le statut de réfugié en droit international” in La

Convention de Genève du 28 juillet 1951 relative au statut des réfugiés 50 ans après: Bilan et perspectives
(Brussels, Bruylant, 2001) 3-61.
F. Crépeau, Droit d’asile. De l’hospitalité aux contrôles migratoires (Brussels, Bruylant, 1995).
O. Delas, Le principe de non-refoulement dans la jurisprudence internationale des droits de l’homme (Brussels,
Bruylant, 2011).

J.-Y. Carlier and L. Leboeuf, “The Prohibition of Collective Expulsion as an Individualisation

Requirement” in M. Moraru, G. Cornelisse and P. De Bruycker, Law and Judicial Dialogue on the
Return of Irregular Migrants from the European Union (Oxford, Hart Publishing, 2020) 455–473.
C. Costello and I. Mann, “Border Justice: Migration and Accountability for Human Rights
Violations” (2020) 21(3) German Law Journal 311–334.
M. Den Meijer, “Reflections on Refoulement and Collective Expulsion in the Hirsi case” (2013)
IJRL 285.

16
J.-F. Durieux and J. McAdam, “Non-Refoulement through Time: The Case for a Derogation
Clause to the Refugee Convention in Mass Influx Emergencies” (2004) IJRL 4.
J. Hathaway and T. Gammeltoft-Hansen, “Non-Refoulement in a World of Cooperative
Deterrence” (2015) 53 Columbia Journal of Transnational Law 2, 235–284.
V. Kakosimou, “Non-refoulement and access to asylum” (September 2017) 3(2) International Journal
of social sciences 167–179.
E. Lauterpacht, D. Berthelem, “The Scope and Content of the Principle of Non-Refoulement” in
E. Feller, V. Türk, F. Nicholson (eds), Refugee Protection in International Law, Global Consultations on
International Protection (Cambridge, CUP, 2003) 87 ff.
N. Markard, “The Right to Leave by Sea: Legal Limits on EU Migration Control by Third
Countries” (2016) 27 IJRL 591–616.
M. Milankovic, Amicus Curiae Brief re MH17; Human Rights Committee on Search and Rescue at Sea, EJIL,
Talk, 29 January 2021.
V. Moreno-Lax, “Hirsi Jamaa and Others v. Italy or the Strasbourg Court versus Extraterritorial
Migration Control” (2012) HRL 574–598.
S. Sarolea, “Is Access to Asylum the Same as Access to Justice?” in M.-C. Foblets and L. Leboeuf
(eds), Humanitarian Admission to Europe. The Law between Promises and Constraints (Baden-
Baden/Oxford, Nomos/Hart, 2020) 115–154.
UNHCR, Advisory Opinion on the Extra-Territorial Application of Non-Refoulement Obligations
under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR,
Geneva, 26 January 2007.

J.-Y. Carlier and L. Leboeuf, "Droit européen des migrations, Chronique" (2017) Journal de droit
européen 110 (case X and X).
L. Leboeuf, “La Cour de justice face aux dimensions externes de la politique commune de l’asile et
de l’immigration; Un défaut de constitutionnalisation?” (January-March 2019) Revue trimestrielle de
droit européen 55-66.
S. Sarolea and J.-Y. Carlier, « Des frontières aux droits ou des droits aux frontières ? La décision de
la Cour européenne des droits de l’homme M.N. c. Belgique du 5 mai 2020 sur les visas
humanitaires », (November 2020) Journal des tribunaux 821-825.
P.-A. Van Malleghem, “La Cour de justice refuse de revisiter la légalité de l’accord UE-Turquie,”
commentary of CJEU, 12 September 2018, NF, NG and NM, C-208/17 P to C-210/17 P (October
2018) Cahiers de l’EDEM.

17
The table below summarizes the territorial scope of application of the principle of non-refoulement as
well as the corresponding case law.
Geneva HR Texts EU Law Case Law1
1. Territory Yes, Art. Yes, Art. 3 Yes, ECtHR, Soering v.
33 Procedures United Kingdom (1989)
Directive Yes, HRC, Kaba (2010)
“in the territory” Yes, CRC, I.A.M. (2018)
Yes, ACHPR, on behalf of
Sierra Leonean in Guinea
Art. 1 (2004)
2. Territorial Yes, Art. ECHR Yes, Art. 3 Yes, ECtHR, Sharifi (2014)
waters 33 Procedures
Directive
Art. 3 “in the territorial
UNCAT waters”
3. Border Yes, Art. Yes, Art. 3 Yes, the principle applies
33 Procedures at the border but the
Art. 7 Directive ECtHR, in N.D. and N.T.
ICCPR “including at the v. Spain (2020), exonerates
border” the State from its
responsibility regarding
Art. 5 and collective expulsion in case
12 ACHPR migrants used force to
cross the border.
Yes, ECtHR, M.A. and
Art. 22 Others v. Lithuania (2018)
ACHR Yes, CRC, D.D. (2019)
4. “Neutral”, Yes, Art. Yes, Art. 3 Yes, ECtHR, Amuur
“international” 33 Procedures (1996)
zones of airports Directive
“or in the transit
zones”
5. International Yes and / No, Supreme Court, USA,
waters no Sale (1993)
Contra, Yes, IACHR, Sale
(1997)
Yes, ECtHR (GC), Hirsi
(2012)
6. Airport in No, Art. 1, / No, UKHL, Prague airport
country of origin “outside (European Roma Rights
the Center) (2004)
country”

1 These are some illustrations and not an exhaustive presentation, neither on the control bodies nor on the decisions.
18
 7. Embassy or No, Art. 1, No, Art. 3 No, CJEU, X and X
consulate “outside Procedures (2018), contra: AG.
the Directive No, ECtHR, M.N. (2020)
country” “shall not apply to
requests for
diplomatic or
territorial asylum
submitted to
representations of
Member States”

Even among the general public, in Europe, the term is widely known, although the system itself
may remain unknown.
To understand the so-called Dublin system, let us go back to its origins, explain its foundations,
and locate this mechanism within the European asylum system.
We will look at the texts governing the Dublin system before briefly outlining the difficulties it
poses both in terms of principles and practical terms, difficulties to which we shall return in the
following paragraphs.
Three capsules follow this introductory capsule. Two will be technical. They concern the operation
of the mechanism, the criteria, and the procedure. The last one is more political. It deals with the
questions raised by the Dublin system and its prospects for the future.

The Dublin system is designed to distribute asylum seekers among the countries of the European
Union. The idea of this distribution is linked to the creation of the Schengen area, which is an area
of free movement within the countries of the European Union. Created in 1985 and set up in the
1990s, the Schengen area removed controls at the internal borders of the European Union. If
internal borders disappear for citizens, it also means that when third-country nationals arrive, they
can in fact move freely within the borderless Schengen area. Asylum seekers could therefore go
from one country to another and submit several applications for asylum, either successively or
simultaneously.
As early as 1990, a Convention was signed in Dublin, hence the name. The Convention became a
Regulation also known as the Dublin system. The aim is to allocate asylum seekers between
Member States. The principle adopted is the following: one asylum application, one and only one
competent State. The aim is thus to avoid secondary movements of asylum seekers and asylum
shopping, with the applicants choosing the State where they will make an application.

19
In addition to this rule, there is a second, fundamental rule: the competent country is determined
by EU law. The main criterion is the jurisdiction of the Member State of first arrival. It is a criterion
centered on the idea of responsibility. There is no joint distribution of asylum seekers between
Member States. The Schengen area presupposes that the State that allowed a third-country national
to enter is responsible and must be competent.

This system, which dates to 1990, has experienced changes in three areas: geography, institutions,
and substance.
The geographical evolution concerns the number of participating States. The 12 signatory States
present from the outset were joined by Austria, Sweden and then Finland in 1998. The Dublin
system was also extended to countries outside the European Union: Iceland, Norway, Switzerland
and then Liechtenstein. We can therefore speak of a Dublin area involving third countries that is
broader than the Schengen area and the European Union.
The second development is institutional. The Treaty of Amsterdam communitized the right of
asylum: this means that it entered within the European Community Law (today: the EU Law). In
2003, the Interstate Convention gave way to a Council Regulation, known as the Dublin II
regulation. This Dublin II Regulation existed for ten years before being reformed to make way for
the current Dublin III regime. The aim of the reform was to remedy the difficulties highlighted by
European or national case law and by the realities on the ground.
As for content, the Dublin III Regulation entered into force in 2013. The principle remains one
application, one State and no choice. At the same time, due to criticism, the family criteria have
been strengthened and possibilities for adjusting the criteria in the event of difficulties have been
inserted.

The texts that make up the Dublin regime are diverse. The central text is the Dublin Convention,
which became the Dublin II then Dublin III Regulation. This was supplemented by the texts
organizing the extension of Dublin to third countries and by the Eurodac Regulation which deals
with collecting and comparing fingerprints. It makes it possible to keep track of asylum seekers’
location.

We must first understand the institutional integration of the Dublin system into the CEAS. Art. 78
TFEU provides that “the Union shall develop a common policy on asylum.” The objective is to
create a procedure and protection criteria applicable to all persons who apply for asylum and who
will be granted protection. To this end, the European Union adopted directives to: (1) harmonize
reception conditions for asylum seekers; (2) standardize the interpretation of the definition of
refugee and beneficiary of subsidiary protection; and (3) reduce differences between national
procedures. The Dublin Regulation is a part of this system. Although it came before, harmonization
is closely linked to distribution. The very idea of distribution is because protection is supposed to
be equivalent in all the countries in the Dublin area, from Bulgaria to the Netherlands, from Greece
to Belgium. There is a presumption that the asylum seeker will be treated the same way regardless
of the country.

20
As early as 1990, this presumption was undermined. The differences between national systems
increased when the Dublin system came under pressure in 2015 with a higher number of asylum
seekers.
The first difficulty is linked to chronology. The harmonization of European asylum law started
after the entry into force of the Dublin system. Originally, trust between States as to the equivalence
of regimes was more of a wish than a reality. While the CEAS has made progress, harmonization
is still very imperfect.
The second difficulty is the lack of solidarity between the countries on the borders of southern and
eastern Europe, which see most of the entries, and the other States that are less exposed to these
arrivals. These two pitfalls have led to difficulties both qualitative (transposition of European
standards, which are supposed to ensure equivalence) and quantitative (these systems are
overwhelmed). Often, these difficulties are cumulative. How can the internal system be improved
when States are faced with many arrivals? An overwhelmed system is not operational and has
difficulty implementing harmonized standards.
Added to this are difficulties in dealing with vulnerable applicants, particularly within these failing
systems.
Finally, the criteria leave little room for the individual choice of asylum seekers. These asylum
seekers have already left everything and therefore naturally seek to be closer to a community, family
or place that seem less foreign to them. This is an important issue, since the country where the
procedure will take place will, barring exceptions, be the country where they will have to live
afterwards, if they are granted status.
In the next module we will analyze in more detail how these difficulties are handled in the case law
and in the reforms of the Regulation.

Art. 78 Consolidated version of the Treaty on the Functioning of the European Union (TFEU),
OJ, C326, 26.10.2012, p. 47–390.
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 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), also called “Dublin Regulation III” because it
is a follow-up to the Convention of Dublin of 14 June 1990 and the Dublin Regulation II of 18
February 2003.
Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 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
States responsible for examining an application for international protection lodged in one of the
Member States by a third-country national or a stateless person and on requests for the comparison
with Eurodac data by Member. States’ law enforcement authorities and Europol for law
enforcement purposes and amending Regulation EU No 1077/2011 establishing a European
Agency for the operational management of large-scale IT systems in the area of freedom, security
and justice (recast).

21
K. Hailbronner and D. Thym, EU Immigration and Asylum Law, 2nd ed. (Munich, C.H. Beck, 2016)
1023–1027.

J.-Y. Carlier et S. Sarolea, Droit des étrangers, pp. 459-467, no 514-518.

Let us recall very briefly the objectives of the Dublin Regulation. The aim is to ensure that only
one EU Member State is responsible for examining an asylum application and to avoid multiple
applications and secondary movements.
According to the criteria laid down by EU law and by the Regulation, applicants cannot choose the
country in which they lodge their application. While the criteria have evolved between the
Convention and the Regulations, the basis has remained the same.
A distinction must be made between the criteria for taking charge and the criteria for taking back.
Taking back means that there has already been an initial taking charge.

The two main criteria for taking charge are family and access to EU territory. Therefore, unless the
asylum seeker has family in the State where he or she is applying, the most frequent criterion will
be whether he or she entered the EU by air (which is rare), sea or land legally or illegally. Naturally,
there is a greater responsibility on the Member States on the periphery of the Union, in the South
and East, since it is through their borders that most asylum seekers enter the EU.
A short note before presenting the criteria: in 2016, the CJEU, in Ghezelbash and Karim, said that
although the asylum seekers don’t have a subjective right to choose the competent State, they could
require States to comply with the criteria. For example, an applicant could contest a removal to
another country of the Union that may have agreed to take him or her back if that removal was
decided in contradiction with the criteria of the Regulation.
CJEU (GC), 7 June 2016, Ghezelbash, C-63/15, § 61: “[…] Article 27(1) of Regulation No 604/2013,
read in the light of recital 19 of the regulation, must be interpreted as meaning that, in a situation
such as that in the main proceedings, an asylum seeker is entitled to plead, in an appeal against a
decision to transfer him, the incorrect application of one of the criteria for determining
responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the
grant of a visa set out in Article 12 of the regulation.”
CJEU (GC), 7 June 2016, Karim, § 18: “[…] Article 19(2) of Regulation No 604/2013 must be
interpreted to the effect that that provision, in particular its second subparagraph, is applicable to a
third-country national who, after having made a first asylum application in a Member State, provides
evidence that he left the territory of the Member States for a period of at least three months before
making a new asylum application in another Member State.
Time frames are also important and will be discussed in more detail in the next section. Failure to
transfer within the prescribed time limits will result in jurisdiction reverting to the country where
the applicant is located.”
22
Art. 7 Dublin Regulation provides that the determination criteria shall apply in the order in which
they are listed. The criteria are, in order of importance:
1. Family
2. Access to territory
3. Exceptions: Human rights and sovereignty
4. Temporary derogations

The Regulation defines family as the nuclear family that existed in the country of origin, i.e., couples
who are married or in a durable relationship and their minor children. For unmarried minors, the
family includes the father, mother or other responsible adult and will even be extended to include
siblings and relatives such as aunts, uncles, and grandparents.

In the case of unaccompanied minors, the State responsible is the one where a family member
(father, mother, or responsible adult or guardian de jure and de facto, brother or sister, or even aunt,
uncle, grandparent) who “can take care of him or her” has legal residence (Art. 8(1) and (2) Dublin
Regulation).
In the absence of a family member, the competent State is the one where the unaccompanied minor
is located, even if they have previously passed through another State. This is what the CJEU decided
in 2013, considering the best interests of the child.
CJEU, 6 June 2013, M.A. and Others, § 67: “The second paragraph of Article 6 of Council Regulation
(EC) No 343/2003 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 must be interpreted as meaning that, in circumstances such as
those of the main proceedings, where an unaccompanied minor with no member of his family
legally present in the territory of a Member State has lodged asylum applications in more than one
Member State, the Member State in which that minor is present after having lodged an asylum
application there is to be designated the ‘Member State responsible.’”

If a family member has an application pending in another State, there will be reunification in that
State (Art. 10). If that family member is already a recognized refugee or has subsidiary protection,
the same rule applies, even if the family relationship was not pre-existing (Art. 9 Dublin Regulation).

If there are simultaneous applications from several family members in different States, care should
be taken to bring them (including minor siblings) together. The responsibility of a single State for
all family members should be favored. The responsible State is the one with the largest number of
family members or with the oldest family member (Art. 11 Dublin Regulation).

23
In the absence of family, the criterion of access to territory is used.

If there is a visa or residence permit, the State responsible shall be the State which issued that
document.

Anyone who enters the EU illegally must submit an application in “the State where an external
border of the European Union was crossed for the first time.” In concrete terms, when a migrant
crosses the border, their fingerprints are taken if they are apprehended. These fingerprints will
determine the place of first entry.
If they enter another State, their fingerprints will be taken again, and a Dublin “hit” (Dublinet
network) will immediately reveal that they first entered the EU via another State.
If an applicant who has entered the territory of the Member States illegally or whose circumstances
of entry cannot be established has resided in a Member State for a continuous period of at least
five months before lodging an application for international protection, that Member State is
responsible for examining the application for international protection (Art. 13(2) Dublin
Regulation).
When an asylum application is made in the international transit zone of an airport of a Member
State, that Member State is responsible for examining the application.

In the absence of family ties and if the conditions of access to the territory of the Union are
unknown, the State responsible is the one to which the first application is submitted (Art. 3(2)
Dublin Regulation).
The State is no longer responsible if “the person concerned has left the territory of the Member
States for a period of at least three months.” A new application will give rise to a new procedure
for determining the responsible Member State (Art. 19(2) Dublin Regulation).

If a person had already previously lodged an application for asylum in another State, irrespective
of the progress made in the examination of that application, the first State shall retain jurisdiction
when:
– the application for asylum is being examined (Art. 18(1)(b));
– the person concerned has withdrawn (Art. 18(1)(c)); or,
– the person’s application has been rejected (Art. 18(1)(d)). It is then up to that country to
take back the person whose application has been rejected and, if necessary, to apply a
procedure for the return to their country of origin.
There is no second chance in another State.
There are, however, cessation of responsibility clauses if the person concerned has left the territory
of the Union for at least three months. This will lead to a new taking charge process, not taking
back.
24
CJEU (GC), 7 June 2016, Ghezelbash, § 61: “[…] Article 27(1) of Regulation No 604/2013, read in
the light of recital 19 of the regulation, must be interpreted as meaning that, in a situation such as
that in the main proceedings, an asylum seeker is entitled to plead, in an appeal against a decision
to transfer him, the incorrect application of one of the criteria for determining responsibility laid
down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set
out in Article 12 of the regulation.”
CJEU (GC), 7 June 2016, Karim, § 18: “[…] Article 19(2) of Regulation No 604/2013 must be
interpreted to the effect that that provision, in particular its second subparagraph, is applicable to
a third-country national who, after having made a first asylum application in a Member State,
provides evidence that he left the territory of the Member States for a period of at least three
months before making a new asylum application in another Member State.”
CJEU, 6 June 2013, M.A. e.a, § 67: “The second paragraph of Article 6 of Council Regulation (EC)
No 343/2003 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 must be interpreted as meaning that, in circumstances such as those of
the main proceedings, where an unaccompanied minor with no member of his family legally present
in the territory of a Member State has lodged asylum applications in more than one Member State,
the Member State in which that minor is present after having lodged an asylum application there is
to be designated the ‘Member State responsible.’”
CJEU, 6 November 2012, K.

Encouraged by case law, which is particularly concerned about respecting asylum seekers’ human
rights, exceptions were applied and then inserted in the Dublin III Regulation. These human rights
are those enshrined in both the ECHR and the CFR, which are applicable to the Regulation since
it is part of Union law.
Art. 16 and 17 Dublin III Regulation specify these exceptions. They combine the dual concerns of
human rights and State sovereignty:
– Regarding human rights, the humanitarian clause has broadened the concept of family to
include dependents;
– Regarding national sovereignty, the discretionary clause allows a State to examine an asylum
application even if, according to the Dublin criteria, it should not be responsible for said
application.
This dual desire to respect human rights and State sovereignty has led the two European courts to
give the advice the States: In some cases, you must use your discretionary power to protect human
rights. And the humanitarian clause provides that if there is a relationship of dependency, the
notion of family will be broadened to ensure that family members stay together.

25
If there is a situation of dependency between an applicant and an extended family member,
“Member States shall normally keep or bring together [the persons concerned]” (Art. 16(1) Dublin
Regulation). The causes of dependency listed are health-related: pregnancy, newborns, serious
illness, disability, and old age.
In K. (2012), the CJEU stated that taking account of the extended family could be an obligation in
certain circumstances in case of dependency. It ruled that both the dependency of the person being
reunited, and the person reuniting must be considered. This is a broad application for the benefit
of families.
K. was an asylum seeker who entered Poland. Her adult sons were recognized as refugees in
Austria. She reunited with them there and applied for asylum. The dependent person in Austria
was her sister-in-law, the mother of a disabled newborn. Austria wanted to send her back to Poland.
The Court decided that the Dublin Regulation precluded this.

As we have seen, discretionary clauses allow States to deal with a request which, in principle, is not
their responsibility. This will be required by European courts in some cases, e.g., to bring people
together on humanitarian, family, or cultural grounds.

According to case law, where there is a risk of a “systemic violation” of human rights in the
normally competent State, the person should not be returned to that State. There is, in a sense, an
obligation to use the discretionary clause. For example, in the M.S.S. case, the ECtHR held that
Belgium could not return an asylum seeker to Greece because of the situation there. The
presumption that Greece was a safe State in terms of human rights was rebuttable and Belgium
had to assess the situation in Greece. Although this is a limit to mutual trust between EU States,
the CJEU has made a similar ruling in N.S., in situations where there are “systemic deficiencies.”
ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece. The systemic failure of the asylum procedure
in Greece reverses the presumption of equivalence of respect for human rights.
CJEU, 21 December 2011, N.S. and Others, § 106: “Article 4 of the Charter of Fundamental Rights
of the European Union must be interpreted as meaning that the Member States, including the
national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the
meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in
the asylum procedure and in the reception conditions of asylum seekers in that Member State
amount to substantial grounds for believing that the asylum seeker would face a real risk of being
subjected to inhuman or degrading treatment within the meaning of that provision.”

The ECtHR extended the exceptions based on a risk due to “systemic deficiencies” to exceptions
based on an individual risk of violation of human rights. Each case must be seen in concreto. In the
case Tarakhel v. Switzerland, Switzerland could not return an Afghan family with children to Italy
because Italy would be unable to provide suitable accommodation.
ECtHR, 4 November 2014, Tarakhel v. Switzerland, § 122: “[…] were the applicants to be returned
to Italy without the Swiss authorities having first obtained individual guarantees from the Italian
26
 authorities that the applicants would be taken charge of in a manner adapted to the age of the
children and that the family would be kept together, there would be a violation of Article 3 of the
Convention.”
The CAT said the same thing in Harun, concerning the return of a Somali asylum seeker to Italy,
where victims of torture could not be sufficiently looked after, given the reception situation of
asylum seekers in Italy.
CAT, Communication No. 758/2016, Harun v. Switzerland, 24 January 2018, §§ 9 and 10: “Under
article 14 [of the Convention against Torture], the complainant does not claim that his right to
redress has been violated in Switzerland. However, he argues that that there would be a risk of
violation by Switzerland if he were to be deported to Italy and he also claims the right to prevention,
given his extremely fragile personal situation and the critical circumstances prevailing for asylum
seekers, including victims of torture. Switzerland should not relinquish its treaty obligations under
article 14 by transferring them to another State party.
In these specific circumstances, the State party failed to demonstrate that it had conducted an
individual assessment of the complainant’s situation, particularly in view of his vulnerability, his
past experience and his specific need for redress, or of the relevant circumstances in the country of
return. The State party would therefore violate articles 3, 14 and 16 of the Convention if it were to
return the complainant to Italy.”

The situation of crisis in some countries in 2015 led the Council of the European Union to adopt
ad hoc relocation decisions “establishing provisional measures in the area of international protection
for the benefit of Italy and of Greece”1 rather than implement the Temporary Protection Directive
provided for mass influxes.
These decisions provided for the relocation of 40,000 and later 120,000 asylum seekers from these
two countries to other EU Member States. Not all were relocated, but these temporary decisions
were implemented for a given period of time to relieve the congested system. A permanent
mechanism for relocation within the EU could be created (proposal COM(2015) 450 final,
9 September 2015, and proposal for a Dublin IV Regulation, 4 May 2016, COM(2016) 270 final).
This is also suggested in the new Pact on Migration and Asylum of the Commission of the EU
(pt 2.2, A common framework for solidarity and responsibility sharing).
In conclusion, the Dublin system is made of basic criteria such as family and border crossing,
exceptions such as the humanitarian clause and the discretionary clause, and derogations such as
the cyclical derogations which have been adopted to deal with the 2015 crisis.

Decision EU 2015/1523 of the Council of 14 September 2015 establishing provisional measures

in the area of international protection for the benefit of Italy and of Greece, OJ, L239, 15 September
2015, p. 146.

1Decision 2015/1523 of 14 September 2015, OJ, L.239, 15 September 2015, p. 146, and Decision 2015/1601 of 22
September 2015, OJ, L.248, 24 September 2015, p. 80.
27
Decision EU 2015/1601 of the Council of 22 September 2015 establishing provisional measures
in the area of international protection for the benefit of Italy and Greece, OJ, L248, 24 September
2015, p. 80.
Proposal for a Regulation of the European Parliament and of the Council establishing a crisis
relocation mechanism and amending 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 responsible for examining an application for international protection lodged in one
of the Member States by a third country national or a stateless person, COM(2015) 450 final,
Brussels, 9 September 2015.
Communication from the Commission to the European parliament, the council, the European
economic and social committee and the committee of the regions on a New Pact on Migration and
Asylum, COM (2020) 609 final, Brussels, 23 September 2020.

CAT, 24 January 2018, Harun v. Switzerland, communication No. 758/2016, Annex, §§ 9 and 10:
“Under article 14, the complainant does not claim that his right to redress has been violated in
Switzerland. However, he argues that there would be a risk of violation by Switzerland if he were
to be deported to Italy and he also claims the right to prevention, given his extremely fragile
personal situation and the critical circumstances prevailing for asylum seekers, including victims of
torture. Switzerland should not relinquish its treaty obligations under article 14 by transferring them
to another State party.”
ECtHR, 2 December 2008, KRS v. United Kingdom (decision of inadmissibility). Presumption of
equivalence of the respect of human rights: “In the absence of any proof to the contrary, it must
be presumed that Greece will comply with that obligation in respect of returnees including the
applicant.”
ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece. Systemic deficiencies of the asylum procedure
in Greece, rebutting the presumption of equivalence of the respect of human rights.
ECtHR, 4 November 2014, Tarakhel v. Switzerland, § 122: “[…] were the applicants to be returned
to Italy without the Swiss authorities having first obtained individual guarantees from the Italian
authorities that the applicants would be taken charge of in a manner adapted to the age of the
children and that the family would be kept together, there would be a violation of Article 3 of the
Convention.”
ECtHR, 30 September 2015, A.S. v. Switzerland.
CJEU, 21 December 2011, N.S.and Others, § 106: “Article 4 of the Charter of Fundamental Rights
of the European Union must be interpreted as meaning that the Member States, including the
national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the
meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in
the asylum procedure and in the reception conditions of asylum seekers in that Member State
amount to substantial grounds for believing that the asylum seeker would face a real risk of being
subjected to inhuman or degrading treatment within the meaning of that provision.”

28
The aim here is to focus on a few procedures without examining in detail all the steps involved in
determining the Member State responsible for processing an asylum application. These procedures
include taking charge and taking back; applicable time limits; appeals, detention and reception.

A distinction must be made according to whether the procedure is aimed at taking charge or taking
back an asylum seeker.
Taking charge of an applicant happens when they have not yet passed through a Member State,
have not made themselves known, or have not been identified in a Member State.
Taking back an asylum seeker concerns those individuals who have been identified in a Member
State, whether the procedure is under way or has been completed, and who end up in another
Member State. They must be taken back by the first State.

The objective of the Dublin Regulation is to ensure quick and effective access to the procedure for
examining applications for international protection. The Regulation therefore provides that the
procedure must be conducted “as soon as possible.” Given the various stages leading to a transfer,
the procedure can take up to 11 months: three months for a State to send a take charge request to
another State (Art. 21); two months for that State to reply (Art. 22); and six months to complete
the transfer between the two States.

Time limits are reduced in the event of a Eurodac alert or detention where an urgent procedure is
duly motivated by the requesting State. They are extended in the event of a risk of absconding
(CJEU, 19 March 2019, Jawo).
On time limits, see CJEU, 21 January 2009, Petrosian.

During the administrative phase, the Regulation guarantees the applicant’s right to information. In
the event of a positive decision, whether implicit or explicit, by the State requested, the asylum
seeker is notified. Article 27 of the Dublin III Regulation guarantees an effective remedy for any
asylum seeker who is notified of a transfer decision. The transfer will then be suspended, or the
applicant may request such a suspension. In addition, the applicant must be provided with legal
and linguistic assistance.

The Reception Directive is applicable to “dublinies” (persons in Dublin procedure) as soon as they
register their application and until they are transferred to the responsible Member State (CJEU,
27 September 2012, Cimade and Gisti).

If detention is authorized in the context of the implementation of a Dublin transfer, the latter
cannot be the sole ground for detention (Art. 28(1) Dublin Regulation). There must also be a
29
significant risk of “absconding” (Art. 28(2) Dublin Regulation). This risk must be based on “the
existence of reasons in an individual case, which are based on objective criteria defined by law, to
believe that an applicant […] may abscond” (CJEU, 15 March 2017, Al Chodor).

CJEU, 21 January 2009, Petrosian.

CJEU, 27 September 2012, Cimade and GISTI. The Reception Directive is applicable to the
“Dublined” persons as soon as they register their application and until they are transferred to the
Member State responsible.
CJEU, 15 March 2017, Al Chodor. If detention is authorized in the context of the implementation
of a Dublin transfer, the latter cannot be the sole ground for detention (Art. 28(1) Dublin
Regulation). There must also be a significant risk of “absconding” (Art. 28(2) Dublin Regulation).
This risk must be based on “the existence of reasons in an individual case, which are based on
objective criteria defined by law, to believe that an applicant […] may abscond.”
CJEU, 19 Mars 2019, Jawo. The deadlines are reduced in case of Eurodac reporting or of detention
or when an urgency procedure is duly motivated by the applicant State. The extension arises in case
of risk of absconding.

AIDA, The Dublin system in first half of 2019: Key figures from selected European countries,
August 2019.
EASO, Practical guide on the implementation of the Dublin III Regulation: Personal interview and
evidence assessment, October 2019, Practical Guide Series.

We have seen in the previous sections that the issues surrounding the implementation of the Dublin
Regulation go far beyond the Dublin Regulation. It is about trust, solidarity, and human rights.
Trust and solidarity have yet to be built, or at least strengthened, between Member States.
Applicants for protection are faced with a system that gives them little choice and few rights, even
though corrections have been made by case law, later incorporated into the Regulation.
Moreover, the cost to benefit ratio of this cumbersome and controversial system raises questions.
The questions this system raises within the EU are the same as those that the EU is raising with
third countries. The presumptions of safety, which are at the heart of the Dublin Regulation, are
increasingly applied to third countries.

The Regulation is criticized for being based on a presumption that reception conditions, procedures
and access to protection are equivalent in all EU Member States. However, the reality and the
figures are more like a lottery, hence the term “Dublin lottery.” Status recognition can sometimes
30
vary significantly between two States: 90% recognition in one State versus 10% in another for
applicants of the same origin.
The quality of procedures and reception conditions also differ.
On paper, States retain a very wide margin of appreciation. In practice, it is even greater.

The 2015 relocation decisions allowed the EU to put mechanisms in place to manage the “refugee
crisis” and provide relief to Italy and Greece. However, the EU could have used the Temporary
Protection Directive, which would have allowed a fair distribution of refugees and provide a way
to deal with the crisis. This directive can only be triggered by a political decision, that was never
reached. Instead, Member States adopted a provisional and temporary solutions, which was
contested by some of them. Within the Visegrád Group, Slovakia and Hungary appealed to the
CJEU against the relocation decisions. The CJEU dismissed these applications, holding that there
had been no manifest error of assessment and that the measures were indeed provisional and
legitimate under the Treaty, and that the EU could put in place a binding relocation mechanism.
CJEU, 6 September 2017, Slovak Republic and Hungary v. Council: § 253: “[…] there is no ground for
complaining that the Council made a manifest error of assessment when it considered, in view of
the particular urgency of the situation, that it had to take—on the basis of Article 78(3) TFEU, read
in the light of Article 80 TFEU and the principle of solidarity between the Member States laid down
therein—provisional measures imposing a binding relocation mechanism, such as that provided for
in the contested decision.”
CJEU, 2 April 2020, European Commission v Republic of Poland and Others. The Court of Justice,
upholding the actions for failure to fulfill obligations brought by the European Commission, ruled
that the defendant States breached EU law by failing to comply with the relocation decisions
adopted in 2015 by the Council. The Court rejects the States” argumentation as to the need to
safeguard their national order and security, adduced as justification for not relocating asylum
seekers, and confirms that solidarity is a legally binding obligation. It also does not accept the alleged
existence of malfunctioning and flaws of the relocation mechanism as a valid reason not to
cooperate and show solidarity: it is exactly when obstacles and difficulties arise that solidarity and a
sincere, genuine spirit of cooperation are most needed.
Subsequently, lifeboats sailing from one EU port to another in search of a landing port show that,
even beyond the Visegrád Group, the attitude of many States is one of avoidance rather than
solidarity.
These issues are even more worrying because the Dublin system has been found to suffer from a
lack of efficiency and effectiveness. For example, the number of relocations from Italy was less
than the number of transfer requests made to Italy at the same time. The procedural, material,
political and human cost of the Dublin system is enormous.

Asylum seekers, in exile at the end of an often-difficult journey to reach the Union’s borders, are
deprived of the only choice left to them.
The reforms of the Dublin Regulation have made it possible to plan, in particular to reunite families.
The right to challenge decisions is recognized by case law. However, there is little leeway. The
choice of the competent country is crucial. The country processing the application will be the

31
country where the person who obtains status will have to live, in the absence of automatic
recognition of their status throughout the territory of the Union.

The Dublin system is like a laboratory for the presumptions of safety that apply within the Union.
These presumptions can be rebutted and are sometimes, and often, reversed in times of crisis.
These same presumptions are also applied to third countries, such as the first country of asylum or
the safe third country. In the future, the partnerships that the Union is developing with countries
around the Mediterranean or in sub-Saharan countries call for in-depth reflection on these
presumptions and the possibility of overturning them effectively through high-quality procedures.
These challenges are all connected and will have to be met. Reform projects have been put on the
table, such as a Commission reform (Dublin IV) and the European Parliament Wikström report.
This report offers a new approach based on incentives rather than sanctions. According to the
report, asylum seekers should have the opportunity to claim real connections to a State and have
these connections considered when determining the State responsible with their application. Only
applicants with no particular connection should be transferred to EU countries with fewer number
of asylum seekers. This reform, which gave asylum seekers autonomy and created solidarity, was
not adopted.
In September 2020, the Commission adopted a new Pact on Migration and Asylum, which includes,
in particular, new proposals concerning, inter alia, the Dublin Regulation. The Commission now
calls on the European Parliament and the Council to bring a new impetus by calling for a common
framework for solidarity and responsibility sharing (pt. 2.2 of the Pact). It will probably take time
before this Pact could be finalized and have an impact on the asylum and migration issue in Europe.

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, Brussels, 4 May 2016.
COM (2020)610 final, Communication from the Commission to the European Parliament, the
Council, the European economic and social Committee and the Committee of the Regions on a
New Pact on Migration and Asylum, Brussels, 23 September 2020.

CJEU, 6 September 2017, Slovak Republic and Hungary v. Council, § 253: “[…] there is no ground for
complaining that the Council made a manifest error of assessment when it considered, in view of
the particular urgency of the situation, that it had to take—on the basis of Article 78(3) TFEU,
read in the light of Article 80 TFEU and the principle of solidarity between the Member States laid
down therein—provisional measures imposing a binding relocation mechanism, such as that
provided for in the contested decision.”
CJEU, 20 April 2020, European Commission v. Hungary, Poland, Czech Republic

32
J. Bornemann, “Coming to terms with the refugee relocation mechanism” (14 April 2020)
Europeanlawblog.
V. Chetail, P. De Bruycker and F. Maiani (eds), Reforming the Common European Asylum System: The
New European Refugee Law (Leiden, Brill Nijhoff, 2016).
D. Dreyer-Plum, “Dublin Revisited: Geographic Asymmetry and Corrective Allocation
Mechanisms” (2020) 22 EJML 3, 386–426.
I. Goldner Lang, “No Solidarity without Loyalty: Why Do Member States Violate EU Migration
and Asylum Law and What Can Be Done?” (2020) 22 EJML 1, 39–59.
E. Frasca and F.L. Gatta, “Rebel rebel, how could they know? The boundless imagination of
Poland, Hungary and the Czech Republic in opposing the relocation mechanism” (June 2020)
Cahiers de l’EDEM.
F. Maiani and C. Hruschka, “The Report of the European Parliament on the reform of the Dublin
system: certainly bold, but pragmatic?” (20 December 2017) EU Immigration and Asylum Law and
Policy.
F. Maiani, “The reform of the Dublin system and the dystopia of ‘sharing people’” (2017) 24(5)
Maastricht Journal of European and Comparative Law 622–645.
L. Marin, S. Penasa, and Graziella Romeo, “Migration Crises and the Principle of Solidarity in
Times of Sovereignism: Challenges for EU Law and Policy” (2020) 22(1) EJML 1–10.
C. Menjivar, M. Ruiz and I. Ness (eds), The Oxford Handbook of Migration Crises (Oxford, OUP, 2019).
Report on the 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 stateless person (recast), (COM (2016) 0270-C8-0173/2016–
2016/0133(COD)), Cecilia Wikström, 6 November 2017.
European Union, Directorate general for internal policies, department C; Civil liberties, Justice and
Home Affairs, The Reform of the Dublin III Regulation, 2016.
AIDA, The implementation of the Dublin III Regulation in 2019 and during COVID-19, August
2020.
Odysseus Network, New series of posts on the new migration pact, coordinated by Prof. D. Thym.

Geopolitical situation: Creation of an area of internal free movement.

Legislation: Schengen Agreement (Belgium, Netherlands, Luxembourg, Germany, France).

Geopolitical situation: Decision on the distribution of asylum applications from third-country

nationals.
Legislation: Implementation of the Schengen acquis: abolition of internal borders.

33
Legislation: Dublin Convention: distribution of competences in asylum matters (Dublin
Convention, OJ C 254, 19/08/1997, 15 June 1990) (12 countries: Belgium, Denmark, Germany,
Greece, Spain, France, Ireland, Italy, Netherlands, Luxembourg, Portugal, United Kingdom).

Geopolitical situation: Schengen Agreement (Belgium, Netherlands, Luxembourg, Germany,

France, +Portugal, +Spain, +Italy).

Geopolitical situation: Schengen Convention (Belgium, Netherlands, Luxembourg, Germany,

France, Portugal, Spain, Italy, +Norway, +Denmark, +Finland, +Sweden, +Iceland).

Geopolitical situation: Dublin Convention (Belgium, Denmark, Germany, Greece, Spain, France,
Ireland, Italy, Netherlands, Luxembourg, Portugal, United Kingdom, +Austria, +Sweden).
Legislation: Implementation of the Dublin Convention.

Geopolitical situation: Dublin Convention (Belgium, Denmark, Germany, Greece, Spain, France,
Ireland, Italy, Netherlands, Luxembourg, Portugal, United Kingdom, Austria, Sweden, +Finland).

Case law: ECtHR, T.I., Removal from Great Britain to Germany. Risk under Article 3 ECtHR.
Presumption of compliance by Germany with Article 3 ECHR. Presumption rebuttable.

Geopolitical situation: Expansion of the EU to ten new Member States. Reflection on a European
Constitution (Dublin II: France, Germany, Italy, Belgium, Luxembourg, Netherlands, United
Kingdom, Ireland, Denmark, Greece, Spain, Portugal, Sweden, Finland, Austria; + in 2004: Cyprus,
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia,
Switzerland).
Legislation: The Dublin Convention becomes the Dublin II Regulation.

Geopolitical situation: Dublin II (France, Germany, Italy, Belgium, Luxembourg, Netherlands,

United Kingdom, Ireland, Denmark, Greece, Spain, Portugal, Sweden, Finland, Austria, Cyprus,
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Czech Republic, Slovenia,
Switzerland, +Romania, +Bulgaria).

Case law: ECtHR, K.R.S. Return from Great Britain to Greece. Risk under Art. 3 ECHR in Greece
given the situation of asylum seekers. Presumption that Greece will protect against the risk of return
to Iran.

Geopolitical situation: Dublin II (France, Germany, Italy, Belgium, Luxembourg, Netherlands,

United Kingdom, Ireland, Denmark, Greece, Spain, Portugal, Sweden, Finland, Austria, Cyprus,

34
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Czech Republic, Slovenia,
Switzerland, Romania, Bulgaria, +Liechtenstein).
Case law: ECtHR (GC), M.S.S. Return from Belgium to Greece. Presumption of K.R.S. overturned.
Violation of Art. 3, 3–13 ECHR by Belgium. Violation of Art. 3, 3–13 ECHR by Greece.
Obligation to consider systemic failures.
Case law: CJEU, N.S. The presumption that EU countries respect fundamental rights is rebuttable.
Article 4 CFR requires the State not to transfer if there are systemic failures.
Case law: CJEU, M.A. The Member State in which an unaccompanied foreign minor applies for
asylum and is located shall have jurisdiction even if he or she has made applications in other States.

Geopolitical situation: Dublin III (26 June 2013) (Austria, Belgium, Bulgaria, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Sweden, United Kingdom; + 4 countries “associated” with the Dublin system: Norway,
Iceland, Switzerland and Liechtenstein).
Legislation: The Dublin II Regulation becomes Dublin III. Correction of criteria, particularly
family criteria and consideration of systemic failures.

Case law: ECtHR, Tarakhel. Return from Switzerland to Italy. Afghan family. Failure to guarantee
care adapted to vulnerability in Italy. Violation of Art. 3, 3–13 ECHR.

Geopolitical situation: “Asylum crisis.”

Legislation: Decision of the Council of the European Union of 14 September 2015 and
22 September 2015 on relocation.

Legislation: EU-Turkey Agreement.

Geopolitical situation: Dublin reform reflection: towards Dublin IV?

Legislation: Reform projects: draft recast of the Dublin Regulation by the Commission and
Wikström report.
Case law: CJEU, Slovakia and Hungary. Validates the relocation program. Provisional measures.
Principle of solidarity.

Case law: EGC, NF v. European Council.

Case law: CJEU, NF, NG and NM v. European Council.

Legislation: In September 2020, the Commission adopted a new Pact on Migration and Asylum,
which includes, in particular, new proposals concerning, inter alia, the Dublin Regulation.

35