PURPOSE: to
recast Regulation 343/2003/EC (“the Dublin Regulation”) on 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.
PROPOSED ACT:
Regulation of the European Parliament and of the Council.
BACKGROUND :
the Commission's Evaluation Report of the Dublin system (please see the
supplementary document under procedure CNS/2001/0182
dated 06/06/2007) has identified a number of deficiencies related mainly to
the efficiency of the system put in place by the current legislative
provisions and the level of protection afforded to applicants for
international protection, which are subject to the Dublin procedure. The
Commission therefore wishes to amend the Dublin Regulation in order, on the
one hand, to enhance the system's efficiency and, on the other, to ensure
that the needs of applicants for international protection are comprehensively
addressed under the responsibility determination procedure. This proposal is
part of a first package of proposals which aim to ensure a higher degree of
harmonisation and better standards of protection for the Common European
Asylum System (“CEAS”)
CONTENT: the
main aim of the proposal is to increase the system's efficiency and to ensure
higher standards of protection for persons falling under the "Dublin procedure". At the same time, the proposal aims to contribute to better
addressing situations of particular pressure on Member States' reception
facilities and asylum systems. The main points are as follows:
Scope of
the Regulation: the proposal extends the scope of
the application of the Regulation in order to include applicants for (and
beneficiaries of) subsidiary protection.
Efficiency
of the system: several modifications are
proposed, in particular:
- deadlines
for submitting take back requests are established and the deadline for
replying to requests for information is reduced. A deadline for replying
to requests on humanitarian grounds is introduced and it is clarified
that requests on humanitarian grounds can be made at any time;
- the
cessation of responsibility clauses have been clarified as regards the
circumstances under which the cessation clauses should apply, the Member State which bears the burden of proof and the consequences of the cessation
of responsibility. These clarifications aim to diminish divergences of
interpretation by Member States;
- the
circumstances and procedures for applying the discretionary clauses
(humanitarian and sovereignty) have been clarified;
- rules on
transfers have been added, i.e. on erroneous transfers and costs for
transfers. A new provision on the sharing of relevant information before
transfers are carried out is added to facilitate cooperation between
Member States on practical arrangements for transfers;
- the existing
dispute settlement mechanism, provided currently by the Dublin
Implementing Regulation only for divergences between Member States in
the application of the humanitarian clause, has been extended in order
to cover matters of dispute on the application of the entire Regulation;
- a provision
on the organisation of a compulsory interview is inserted.
Legal
safeguards: the proposal introduces a number of
modifications:
- the content,
form and the timing for providing information to applicants for
international protection are specified in greater detail in the
Regulation. Moreover, the proposal envisages the adoption of a common
information leaflet to be used across the Member States;
- the right to
appeal against a transfer decision, together with the obligation for the
competent authorities to decide whether or not its enforcement should be
suspended and to allow the person concerned to remain on the territory
pending such a decision, are laid down. Moreover, the right to legal
assistance, and to linguistic assistance, is clarified and the
notification process is further clarified in order to ensure a more
effective right to seek a remedy;
- a new
provision recalling the underlying principle that a person should not be
held in detention for the sole reason that he/she is seeking
international protection is included. Moreover, in order to ensure that
detention of asylum-seekers under the Dublin procedure is not arbitrary,
limited specific grounds for such detention are proposed. Specific rules
are laid down for the special situation of minors and that of
unaccompanied minors.
Family
unity: it is proposed to:
- extend the
right to family reunification to include family members who are
beneficiaries of subsidiary protection and who reside in another Member State ;
- make
compulsory the reunification of dependent relatives (i.e. either a
relative which is dependant on an applicant or an applicant which is
dependant on a relative) and of unaccompanied minors with relatives who
can take care of them;
- extend the
definition of "family members" as far as minors are concerned,
in order to ensure better protection of the "best interests of the
child";
- exclude the
possibility of sending back an applicant for whom one of the family
unity criteria can be applied at the time of the most recent
application, on condition that the Member State where the first
application was lodged has not already taken a first decision regarding
the substance.
Unaccompanied
minors and other vulnerable groups: a new
provision dealing with guarantees for minors is added, and the protection
afforded to unaccompanied minors is enlarged to allow for reunification not
only with the nuclear family but also with other relatives present in another
Member State who can take care of them. In the absence of a family member or
another relative, the Member State responsible is the one where the applicant
lodged his/her most recent application, provided this is in his/her best
interests.
Particular
pressure or inadequate level of protection: where
there is particular pressure on certain Member States with limited reception
and absorption capacities, Dublin transfers add to the burden on those Member
States. A new procedure is inserted allowing for the suspension of Dublin transfers towards the responsible Member State. Such a procedure can also be used
in cases where there are concerns that Dublin transfers could result in
applicants not benefiting from adequate standards of protection in the
responsible Member State, in particular in terms of reception conditions and
access to the asylum procedure.