Vous êtes sur la page 1sur 120

Transnational advisory

and assistance network for asylum


seekers under a Dublin process

Final report
POLAND

NETHERLANDS
GERMANY
BELGIUM

CZECH
REPUBLIC
SLOVAKIA

HUNGARY

FRANCE

SERBIA

F.Y.R.O

ALBANIA

December 2009 May 2011


E U R O P E A N
REFUGEE FUND

INTRODUCTION

................................................... 3

GENERAL FRAMEWORK

................................. 4

the Dublin Regulation, the European stakes


and the projects goals

CHAPTER 1

.............................................................. 5

The overall context


of the Dublin Regulation
I.General presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.1. Context of the Dublin Regulation: principles,
criteria and mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.1.1.The two mechanisms to determine the responsible state: take charge and take back . . . . . . . . . . . . . . 5
I.1.2. The criteria for determining the responsible state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.1.3. Different procedural deadlines depending on the mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I.1.4. Asylum seeker transfer conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. Application report : The European Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


II.1. Information for asylum seekers under the Dublin procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.2. Application of the sovereignity and humanitarian clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II.3. Rights and reception conditions of asylum seekers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II.4. Detention of asylum seekers under the Dublin regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II.5. Right to an effective remedy against transfer decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
II.6. Access to the asylum application procedure after transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III. Revision of the Dublin II regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
III.1. Weakness of the Dublin system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
III.2. State of progress of negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
III.2.1. Somewhat laborious discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
III.2.2. M.S.S. v. Belgium and Greece: a discussion catalyst? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CHAPTER 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The transnational Dublin project


I. Why such a project? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
II. General presentation of the project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

DUBLIN TRANSNATIONAL PROJECT Final report

NATIONAL
REPORTS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

from partner organizations


on project implementation
Austria ( Asyl in Not) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Belgium (Flemish Refugee Action) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
France (Forum rfugis and France terre dasile) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Hungary (Hungarian Helsinki Committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Ireland (Irish Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Italy (Italian Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Poland (Helsinki Foundation for Human Rights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Romania (Jesuit Refugee Service) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Spain (Comisin Espaola de Ayuda al Refugiado) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Switzerland (Swiss Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

CONCLUSION AND GENERAL


RECOMMENDATIONS
ANNEX

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

1 / Partner organizations presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100


2 / Individual follow-up file (automatic form/
available in english only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
3 / Autorization to be signed by the asylum seeker
(available in english only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
4 / Selection of documents related to the Dublin
regulation and its application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

DUBLIN TRANSNATIONAL PROJECT Final report

As part of the project to build a common European asylum procedure, the


Member States wanted to put an end to the problems of asylum shopping and
asylum seekers in orbit. Asylum shopping is the process by which people
whose first request for protection in a European Member State has been denied, file one or more other applications in another EU state. Inversely, orbiting asylum seekers are those for whom none of the European States consider themselves to be competent to process their protection application.

With this in mind, the Dublin II Regulation1, adopted on February 18, 2003, was
intended to determine as quickly as possible which Member State was responsible for examining an asylum request. Specific community rules were drawn up to
serve as a basis for determining the Member State responsible for an asylum request within the European Union.
The Dublin II Regulation works on the assumption that the level of protection is the
same or at least similar in all Member
States. However, in actual fact, NGOs as
well as the European Parliament, the European Commission and the Member
States, all claim that there are large differences between States. The implementation of the Dublin Regulation has proved
unfair for asylum seekers as well as for the
States themselves.

The Regulation is criticised


for the following reasons:
The consequences of asylum seeker
transfers which rarely take into account the
family ties or social or cultural links of asylum seekers with the country in which they
requested asylum before being expulsed.
The Regulations non-consideration of the
major differences that persist between the
different European asylum systems (granting rates, reception system, integration
measures, etc.).
The regulations non-consideration of the
number of asylum requests in the Member
States.
The almost systematic use of detention in
implementing transfers.
The non-consideration of the specific
needs of vulnerable people (unaccompanied minors, migrants with health problems)
The risks of fundamental rights being violated in the event of readmission.
On the basis of these considerations, Forum rfugis and other European NGOs
decided to collaborate on the Dublin transnational project to reinforce the NGOs capacity to provide information and assistance to Dublin procedure asylum seekers
and to eliminate or at least limit the negative
effects of the procedure.

DUBLIN TRANSNATIONAL PROJECT Final report

1 - The Council Regulation


(called Dublin II) no.343/2003,
dated February 18 2003, sets
out the criteria and mechanisms
for determining the State
responsible for examining an
asylum application presented in
one of the Member States by a
third country national

The Dublin Regulation,


the European stakes and
the projects goals

DUBLIN TRANSNATIONAL PROJECT Final report

The overall context of the


Dublin regulation
I. I. General
presentation
When it was first drawn up and adopted in 2003,
the Dublin Regulation (often known as Dublin II)
was part of the ongoing European Union process
to harmonise asylum application procedures
throughout Europe in terms of reception conditions, asylum procedures and the actual definition
of the content of each possible type of protection.
It was one of the first asylum harmonisation laws
to be adopted. This rapid adoption was partly
due to the fact that the States found it easier to
agree on the technical mechanisms to regulate
flows rather than on a common definition of refugee protection. The very nature of the text
clearly shows that efficiency prevailed in this matter: it is a community regulation that is directly applicable in every Member State without needing
to be transposed into national legislation.
The gradual creation of a community database
within the European Union to share the fingerprints of any person having passed through or
stayed in a Member State2, has given further
meaning to the Dublin system. Council Regulation no. 2725/2000, December 11, 2000, concerning the creation of the Eurodac system to
compare fingerprints for the purposes of improving the efficiency of application of the Dublin
convention provides for the creation of a central
database containing the fingerprints of three categories of foreigners: asylum seekers, people
crossing an external EU border illegally and people residing illegally within the EU. This electronic
system makes it considerably easier to prove the
passage and/or residence of asylum seekers in
another European country. It came into effect on
January 15, 2003.

I.1.Content of the Dublin


Regulation: principles,
criteria and mechanisms
The Dublin Regulation came into effect on March
17, 2003, and applies only to asylum requests
made after September 1, 2003. On September 2,
2003, the European Commission published an application regulation to specify certain practical aspects of the Dublin Regulation.
The Dublin Regulation applies to the 27 Member
States of the European Union, except for Denmark, where Dublin I remains applicable until agreement is reached with the European Union. Norway
and Iceland are also concerned by Dublin II. In
2008, Switzerland also joined the Dublin system.

I.1.1. The two mechanisms


to determine the responsible
state: take charge
and take back
Dublin II provides for two categories of situations,
each governed by its own mechanism. The difference between the two lies in the lodging or not
of a first asylum application before arriving in the
second Member State. It is this trace of passage
of an asylum seeker in a first EU Member State
that triggers the procedure to determine which
State is responsible. Although these two mechanisms both lead to the transfer of the asylum seeker from one State to another, they differ in the
deadlines they impose regarding implementation
of the procedure.
The take charge mechanism
This mechanism applies to asylum seekers who
have passed through or stayed in a European
Union member state without lodging an asylum application and who have moved on to another State.
The take back mechanisms
This mechanism concerns asylum seekers who
have lodged a first application in one Member
State and a second application in another State.
The first asylum application may be under examination, the asylum seeker may have been rejected, or have withdrawn or abandoned his application.

DUBLIN TRANSNATIONAL PROJECT Final report

2 - Reference to the Eurodac


system (EC) no.2725/2000,
application date 28/02/2003

Article 3-2 of the Regulation says that a State


can always examine an asylum request even
if, under the regulation, it is not responsible for
doing so (sovereignty clause).

I.1.2. The criteria for determining


the responsible State
The responsibility of a State is established according to the strength of the link between the
asylum seeker and the State. There are a total of
eleven criteria, grouped into four main categories
of links (family, administrative, material and fact).
As well as these categories, the Regulation pro-

vides for a set of humanitarian situations to be taken into consideration.


Each of the criteria to determine the responsible
State is only applicable if the previous criterion is
not applicable to the situation in hand. This is the
Regulations principle of the hierarchy of criteria
(Article 5). The final criterion used if none of the
previous criteria apply is that of the place of filing
of the asylum application (Article 13).
In any case, the situation on the date of the applicants first application to a Member State is the
situation taken into account (Article 5-2).

Family ties
CRITERIA
Unaccompanied
minor

ARTICLE
6

RESPONSIBLE STATE
State in which a family member
of the minor is legally present

REMARKS
This family unity must be in the
minors best interests.

State in which the minor files


his/her asylum application if
he/she has no family in another
Member State of the European
Union

3 - Article 15
of the Dublin II
regulation is not
binding upon the States.
It merely represents
an available possibility.

4 - Article 12
of the application
regulation of the European
Commission.
5 - Article 17
of the Dublin II regulation

15 33

State in which a family


member of the minor,
other than his/her parents
or legal guardian4, is present

This family unity must be in the


minors best interests
If the take charge deadline is exceeded because of necessary research, this may not interfere with
continuation of the determination
procedure.

Family ties
with another/other
refugees(s)

State in which the refugee


family member(s) is(are) present

Written consent for this family


unity must be obtained from
those concerned5.

Family ties
with another/other
asylum seeker(s)

State in which the family member(s) asylum application is


being examined

The asylum application must


not have already been refused
on merit.
Written consent must be obtained
from those concerned .

Respect of family
unity for simultaneous
or successive asylum
applications

14

State responsible for the largest


number of asylum applications,
failing that, the State responsible
for the oldest applicant

This criterion is applied to decide


on situations where the strict
application of the determination
criteria would result in family
members being separated.

6 - Article 17
of the Dublin II regulation.
7 - Article 15
of the Dublin II
regulation is not
binding upon the States.
It merely represents
an available possibility.

8 Article 17
of the Dublin II regulation

Applications must be relatively


close in time to justify the
application of this article.
Family and/or cultural
links

157

The State may decide to accept


responsibility independently of
the established criteria

Written consent must be obtained


from those concerned6.

DUBLIN TRANSNATIONAL PROJECT Final report

Administrative and material ties:


entry and residence of the person
CRITERIA
Valid residence
permit / visa

ARTICLE
9

RESPONSIBLE STATE
State issuing
the document

REMARKS
If there are several residence permits
or visas, the responsible State is the
one that issued the document whose
period of validity is longest or whose
expiry date is the furthest away.
The State remains responsible even
if the document was issued on the
basis of false identity.
If the document was obtained
illegally, the State to which the
document is related is not responsible
if the fraud occurred after issue
of the document.

Residence permit
expired less than
two years ago

State issuing
the document

The visa must have permitted actual


entry into the Member State.

Visa expired less than


six months ago
Residence permit
expired more than
two years previously

State in which
the request was made

The person must not have left the territory of the Member States since issue
of the residence permit in question.
The visa must have permitted actual
entry into the Member State.

Visa expired more


than six months ago
Illegal entry and/or
illegal residence of at
least five months

The person must not have left the territory of the Member States since issue
of the residence permit in question.

10-1

State in which
the applicant arrived
or in which the applicant
stayed

The responsibility of the State concerned expires 12 months after the border
crossing.
Proof or indications of the reality of the
arrival must be provided9.

Return to
the country of origin
between the period
of residence
in the requested
Member State and
that of the requesting
State

163

State in which the latest


asylum application was
filed

The responsibility of the State concerned is only established if:


- The asylum seeker voluntarily
left the Member States for
at least 3 months
- If the asylum seeker has no
valid residence permit for
the Member State concerned
Or with no deadline conditions if:
- The requested State took
and actually implemented the
measures necessary for the asylum
seeker to return to his country
of origin after the rejection
or withdrawal of the asylum
application.

DUBLIN TRANSNATIONAL PROJECT Final report

9 - The list of these


proofs and indexes is given
in the appendices
of the Commission's
application regulation.

Specific cases of situations of dependency


Caution: the situations listed in this table are merely possibilities; derogation from the Regulation
remains at the States discretion

CRITERIA
Pregnancy /
newborn child

ARTICLE

RESPONSIBLE STATE

152

States normally
leave the family members
concerned together
or take the necessary
measures to unite them

Serious illness
Serious handicap
Old age

REMARKS
The situation of dependency
may concern either the asylum
seeker or one of the members
of his/her family10.
The family ties must have
existed in the country of origin
(i.e. a priori any family member).
The need and the opportunity
to reunite a family will be
assessed on the basis of:
- the family situation in the
country
- causes of separation
- the status of any various
ongoing procedures (asylum
or immigration law)
- the capacity of the asylum
seeker or the family member
to actually provide the required
assistance
The choice of the State and
the date of transfer will depend
on the dependent persons
capacity to travel.
Proof of any kind can
be presented.

I.1.3. Different procedural


deadlines depending on the
mechanism

These deadlines may vary depending on which of


the two Dublin Regulation mechanisms the asylum seeker falls under: take charge or take back.

In cases where a Member State believes that


another State should be responsible for processing an asylum application that has been lodged,
deadlines are defined to guide the relations between the states. There are three categories of
deadline :
- The deadline for referral by the requesting State
to the requested State
- The deadline for the requested State to respond
- The deadline for the asylum seeker to be transferred

These deadlines are legally binding and if the


State to which they apply fails to comply, the
responsibility for examining the asylum application automatically falls to the defaulting State.

10 - Articles 11 (1), (2) and (3)


of the European Commission's
application regulation.

DUBLIN TRANSNATIONAL PROJECT Final report

The deadline for referral by the requesting State to the requested State

Referral to the responsible State


ARTICLE
Take in charge

Take back

RESPONSIBLE STATE

art.17-1

The request must be sent within three months of registration


of the asylum request

art.17-1 al.2

Failure to comply with this deadline shall result in the State in


which the asylum application was filed becoming responsible
for its examination.

art. 20

Since no deadlines apply to this article, the State is not held to


any deadline for presenting a take back request.

Requested State response deadline

Positive response or no response from the requested State


ARTICLE
Take in charge

a. 18-1

RESPONSIBLE STATE
The requested State must respond within two months of reception of
the request or, in cases of urgency declared by the requesting State,
within a period that may be between one week and one month11
Failure to respond within this period is considered
to be acceptance.

Take back

a. 20-1-b

The requested State must respond within two weeks if the request
is based on data obtained via EURODAC.
If the data comes from other sources, the requested State has up
to a month to respond.
In both cases, failure to respond within the periods stipulated
isconsidered to be acceptance.

Negative response from the requested State


ARTICLE
Take charge
and take back

a.18-5
a. 512

RESPONSIBLE STATE
Refusal from the requested State must be justified in detail.
The requesting State may demand re-examination of the
situation within three weeks of receiving the negative response.
The requested State must then respond to this re-examination
request within 2 weeks.
For the re-examination procedure, the response deadlines (two
months, one month or one week) are not restarted.

DUBLIN TRANSNATIONAL PROJECT Final report

11 - Article 17 (2)
line 1 urgency can be
declared when the asylum
application occurs after
a residence refusal,
illegal residence,
implementation
of deportation measures
or detention
12 - Article 5
of the application
regulation
of the European
Commission

Asylum seeker transfer from the requesting State to the requested State

ARTICLE
Take charge
and take back

a.19-4

RESPONSIBLE STATE
The transfer deadline period starts with the explicit or implicit response
from the requested State.
There is a 6-month deadline for the transfer.
If the asylum seeker is in prison, this deadline is extended to 12 months.
If the asylum seeker has absconded, this deadline is extended to 18
months.
If there is no transfer within these deadlines, responsibility for examining
the asylum request falls to the requesting State.

I.1.4. Asylum seeker transfer


conditions
The Dublin Regulation and its application regulation13 set out the asylum seeker transfer conditions applicable to the requesting State for take
charge or take back situations.

In all cases, the requesting State is required to return all documents to the asylum seeker or to the
members of the escort team, otherwise they
must be passed on the authorities of the requested State by any other appropriate means.

Transfer decision appeals


Once the decision either implicit or explicit to
take charge of or take back the asylum seeker
has been made, the asylum seeker is notified
that his application will not be examined by the
State in which he is, and therefore that he must
be transferred to the responsible State (art. 19(1)
and (2)14).

An appeal may be lodged against the transfer


decision, but this does not suspend execution of
the transfer. However, the Regulation does stipulate that this appeal may be suspensive of
execution of the transfer on the basis of a case
by case court decision under national legislation
(article 19(2)).

This decision must be justified and indicate the


deadline within which the transfer must take
place. The transfer may be voluntary or forced:
If the transfer is voluntary, a last transfer date
must be set for the asylum seeker.
If the transfer is forced, there are two possible means of implementation:
- controlled departure which involves the asylum seeker being accompanied by a State representative up to boarding
- under escort which involves the asylum seeker being accompanied by a State representative until he is handed over to the authorities.

13 - Article 7 of the
application regulation of the
European Commission

14 - Dublin II regulation

10

DUBLIN TRANSNATIONAL PROJECT Final report

II. Application report:


the European situation
II.1. Information for asylum
seekers under the Dublin
procedure
The access to information by Dublin procedure
asylum seekers is one of the major difficulties
observed at a national level.
Very often, there is no information available.
It is not given in writing or orally (Poland, France,
etc.) and even where information is available, it is
frequently insufficient.
For example, in Italy, asylum seekers only receive summary information on the Dublin procedure and often receive no information at all.
In general, they glean information from other
people who have already experienced the Dublin system. In Belgium, as soon as they arrive
and lodge an asylum application, asylum seekers are given an information brochure by the
Aliens Office and the Office of the Commissioner General for Refugees and Stateless Persons. These brochures contain basic information about the Dublin Regulation.
When this information is provided, it is generally
provided in writing only, it is not always available in a language understood by the asylum
seeker and may be expressed in a way that is
not understandable to the asylum seeker (some
of whom are illiterate). Furthermore, interpreters
are rarely used to provide information for asylum
seekers. Information is generally.
The mandatory information stipulated in Article
3(4) of the Regulation is often not delivered, particularly the type of request (take charge or take
back), the dates of referral and response from
the State, the Dublin Regulation deadlines, the
consequences of the Dublin Regulation, the different stages of the Dublin procedure and the
possibilities of appeal. Similarly, information that
is not mandatory but which often seems essential, such as the persons rights as an asylum
seeker under the Dublin procedure (accommodation, social assistance, legal aid, health care)
is not delivered either.
Furthermore, asylum seekers generally receive
little information about the possible country of
return (asylum system, reception conditions,
etc.). This can be explained by the difficulties for
refugee associations and the authorities to actually obtain information on the legislation, procedures and practice in other countries. Knowledge of the Regulations application is
incomplete and the little information available is
not compiled to ensure accessibility.
DUBLIN TRANSNATIONAL PROJECT Final report

Many European countries do not fulfil their obligation to inform asylum seekers. There are some
exceptions however. In Belgium, the Commissioner General for Refugees and Stateless Persons published a brochure in 2009 for asylum
seekers. In Ireland, the authorities published an
information brochure about the asylum process,
which includes information about the Dublin Regulation. This brochure is available in 24 languages. In France, the asylum seeker's guide
was published jointly by the Ministry of Immigration and Forum rfugis (first published in
2005 and updated every four years).
In Poland, asylum seekers receive basic information on the asylum procedure at the beginning of their own application. This information is
in written form. Once a positive decision has
been made, written information on the further
measures to be taken a request for social assistance for integration is provided. Access to
information about the appeal procedures in a
language understood by foreigners is therefore
guaranteed. Asylum seekers receive no support
from the authorities to find detailed information
about Polish laws and regulations concerning international protection in Poland. Our experience
has shown that the information provided by the
authorities is not sufficient. Asylum seekers often seek information from NGOs.
In view of the lack of information and the absence of any initiative from the authorities in this
area, various NGOs have published information
brochures for asylum seekers. For example, the
Hungarian Helsinki Committee has collaborated with the UNHCR to publish a brochure. This
brochure, which has been translated into ten
languages, contains information about the asylum procedure and rather briefer information on
the Dublin procedure in Hungary for asylum seekers. Such brochures describe the procedure
more clearly. Furthermore, HHC lawyers visit the
reception and detention centres regularly to provide information to asylum seekers concerned
by the Dublin procedure.
Ultimately, and in spite of the information provided, we have observed that very few asylum
seekers are fully aware of the procedure, even if
they understand that the country in which they
are wants to send them to another European
country. They often do not understand why the
authorities want to send them away.

11

II.2. Application of the


sovereignty and
humanitarian clauses
The sovereignty and humanitarian clauses are
rarely used and when they are, it is generally to
reunite families or to protect people with health
problems. In Ireland, these clauses are very rarely
applied since national legislation stipulates that in
the case of transfer decision appeals, the court
may only take into account the hierarchy of criteria. The only possibility is to appeal to the Minister and to request application of the sovereignty clause, which is only granted on very rare
occasions.

II.3 Rights and reception


conditions of asylum
seekers
In most European countries, asylum seekers under the Dublin procedure have the same rights as
other asylum seekers. Some States however apply specific measures to these asylum seekers.
In France, an asylum seeker under a Dublin summons is not eligible for the main assistance provided for asylum seekers, since he is not admitted as a resident. He may not claim the ATA
(temporary support allowance)15 and cannot be
housed in a CADA (reception centre for asylum
seekers). CADAs are specialised structures which
provide not only accommodation but also social, administrative, legal and medical assistance
for asylum seekers. However, in a decision dated October 20, 2009, the Council of State ruled
that asylum seekers under the Dublin procedure
came under the Reception directive and as
such, the Prefectoral authorities should at least
cover their fundamental needs. After this ruling,
the Ministry of Immigration published a circular on 18/12/2009 asking the Prefects to ensure
that asylum seekers under the Dublin II Regulation were accepted into the emergency accommodation system until notification of the decision concerning referral to the responsible State.

15 - Daily allowance
stipulated by Directive
2003/9/EC dated January
27 2003 concerning
the minimal standards
for the reception of asylum
seekers in Member States
and article L. 5423-8
of the Employment Code.

12

While asylum seekers under the Dublin procedure


are supposed to have the same rights as other
asylum seekers, in practice, and particularly in
terms of accommodation, they are confronted
with the same difficulties as those encountered
by all asylum systems at present. In terms of accommodation, for example in Belgium, there are
23,344 accommodation places throughout the
country. Half of the places are in small structures
(individual accommodation), and the remaining
places are in large accommodation centres
(group centres) managed by the Red Cross and
the government. Belgium is faced with an asylum
crisis. Since 2009, more than 7,000 people found
no accommodation, and Dublin procedure asy-

lum seekers were no exception. Since September 2009, more than 3,000 emergency accommodation places have been created but a relatively large number of people are still without
accommodation.
In Poland, the number of refugees and asylum
seekers without accommodation is estimated at
2,000.
In Austria, the freedom of movement of asylum
seekers under the Dublin procedure was limited
by new legislation that came into effect in 2010.
They are issued with a green card and not authorised to leave the district. Sometimes, they
find themselves infringing this ban, particularly
to go to the offices of their advisory organisations,
thereby exposing themselves to fines of 5,000
euros, and 10,000 euros for a second offence.
Further offences are punishable by imprisonment.

II.4. Detention of asylum


seekers under the Dublin
Regulation
National European legislation provides for the detention of asylum seekers under the Dublin Regulation if there is a presumed risk of ascondment
or to enforce readmission. Generally speaking,
the detention of asylum seekers by the transferring country ranges from frequent but not systematic (Austria) to almost systematic in certain
countries (France, Hungary, etc). Sometimes, this
detention may be imposed from the start of the
procedure before the requested State has even
responded and no readmission decision has
been made. Dublin asylum seekers may be detained after their transfer to the country responsible for examining their asylum application, even
though they want to request asylum, as is sometimes the case in Romania if their asylum procedure submitted in this country ended while
they absconded. They are detained even if they
ask acces to a new asylum procedure until RIO
or the court grants them access to the territory.
Inversely, countries like Spain do not detain asylum seekers under the Dublin procedure either
when they arrive after a transfer to Spain or in order to transfer them to another European country; in fact, Spain never forcibly executes readmission decisions. If the asylum seekers do not
leave Spain within 15 days of receiving the transfer decision, they are permitted to remain in the
country. Spain does not deport them but they remain illegal immigrants until expiry of the 6 month
deadline or the 18 month extended deadline within which Spain is supposed to transfer the asylum seeker to the responsible State. After expiry
of this deadline, Spain becomes officially responsible for examining the asylum application.
In Austria, asylum seekers under the Dublin Regulation are not systematically detained under
DUBLIN TRANSNATIONAL PROJECT Final report

Austrian legislation concerning foreign nationals


(Fremdenpolizeigesetz FPG). Previous legislation
(paragraph 76/1 FPG) stipulated that a foreign
national could be arrested if necessary to implement a deportation procedure or a residence
ban, or to enforce a readmission order. The law
said that arrest is used when necessary which
implied that there had to be a specific reason to
arrest the person.
A person legally present in Austria could be arrested under certain circumstances if the authorities suspected that the person was planning to
abscond from the asylum procedure. This law
has now been forgotten. Between 2005 and
2008, the authorities arrested almost all asylum
seekers under the Dublin procedure. After thousands of appeals against this use of detention,
the Constitution Court and the Administrative
Court ruled that such arrests were illegal.
The Home Ministry added a new paragraph in
2010 that once again confirmed the detention of
asylum seekers at the start of the Dublin procedure. This new paragraph, 76/2a FPG, states
that the authorities may arrest a person if:
- They decide upon deportation from the country. Even if the decision has not been made, it
can still be enforced.
- The asylum seeker has been informed that the
authorities have refused his request for reasons specific to the Dublin procedure and for
not having complied with the territorial restriction order (all asylum seekers must remain in
the country in which they lodged their first asylum application).
- If the asylum seeker has twice failed to comply
with the notification of presence procedure
(asylum seekers whose admission procedure is
underway and who are not living in accommodation centres are required to present themselves to the commissariat every 24 or 48
hours).
- Whenever necessary to ensure the asylum procedure or the readmission of a person.
This new formulation of detention reasons is actually similar to the previous one. Detention is
only legal for specific reasons related to the person and his actions.
The authorities, however, read it differently and
claim that the interests of the law are more important than the human rights of any person.

Detention conditions
Conditions in the detention centres vary. For
some, like the deportation centres in Poland, foreign nationals are subjected to very strict detention conditions. They have no access to recreational or training activities, are locked up in
cells all day long and their access to the teleDUBLIN TRANSNATIONAL PROJECT Final report

phone, to healthcare or social, legal and psychological assistance is very limited. Equally strict
detention conditions are also found in Hungary,
for example, in the Nyiabator centre, whose detention conditions are the same as those of high
security prisons.
In Austria, detention conditions are difficult. Many
people go on hunger strikes to protest against
the conditions of their detention. Statistics report that approximately one third of all detainees
goes on a hunger strike.

Time of placement in a detention


centre
A person may be placed in a detention centre
upon two different occasions: before transfer in
order to make the transfer and/or upon arrival in
the responsible country to which he has been
transferred.
Poland and Hungary are the two main countries
into which asylum seekers are readmitted.
In Poland, asylum seekers can be placed in detention centres upon arrival. Simply crossing the
border illegally or attempting to do so are valid
reasons for detaining a migrant. When an asylum
seeker leaves Poland, he abandons his procedure and if he is transferred back to Poland, he
must request that his file is re-opened.
In 2010, Hungary adopted a policy to detain Dublin asylum seekers systematically. Contrary to
Section 49 (5) of the Asylum Law, asylum seekers
were held in Bkscsaba throughout the Dublin
procedure, which can take between a few weeks
and several months. Some asylum seekers are
detained by the border police while the admissibility of their application is assessed (and sometimes afterwards). The maximum period of detention in immigration jails is 12 months. If the
immigration authorities decide to place the asylum seeker under the Dublin procedure, the admissibility procedure is suspended until the outcome of the Dublin procedure is known.
In the event of a minor infringement (illegal border
crossing or illegal residence), asylum seekers can
be detained and subjected to very severe treatment, generally reserved for the perpetrators of
very serious crimes.
It is important to point out that the situation in
Hungary has been a source of particular concern
in recent months. Previously there were only 4
detention centres but during the summer of
2010, the authorities opened another 11, thereby
tripling the detention capacity. It appears that
since then, these temporary detention centres
have been closed, but the capacity of the four old
centres will be increased.

13

In Belgium and France, detention for the purposes of making a transfer is possible and commonly used but not systematic.
In France, only asylum seekers under a readmission order based on CESEDA Article L.531-3
can be detained. The readmission order always
comes after identification of the responsible
State. The maximum detention period in France
is currently 32 days, but transposition of the Return Directive is likely to result in an extension of
the maximum detention period to 45 days.
Italy does not use, or only rarely, administrative
detention for Dublin asylum seekers. According
to the law, asylum seekers are detained if they
are under or refuse to submit to a deportation
decree.
In Austria, detention practice changes regularly
and measures are often taken against certain
nationalities. For example, since October 2009,
measures have been taken against Afghans a
certain number of whom are arrested when they
request asylum and most are arrested when they
receive notification of a negative decision (and are
more or less threatened with a six-month prison
sentence to dissuade them from appealing
against the decision). Between 2008 and 2010,
if the asylum seeker was living in an accommodation centre, he was detained for a maximum of
one night and then deported immediately. Detention was only extended to one or two weeks
if he refused deportation.
Detention practice changed in 2010. Any single
person who had been to more than one country
and was accused of withholding information
concerning his itinerary or his personal life was
liable to be arrested and sometimes even at the
very first stage of the asylum application procedure. The risk of arrest was very high for people
transferred back to Austria after deportation,
those present in the country for several days without requesting asylum and anyone who did not
voluntarily present themselves to the authorities
and was submitted to a routine identity check
(such checks have been implemented much
more often in the past 6 months).
In February 2010, several people were arrested
during their interview at the Federal Office responsible for asylum or after notification of a negative decision. It is difficult to assess any
changes in the current situation.

tection, putting an end to his tolerated residence


and instructing him to leave the national territory
(deportation order). The period of detention can
also be extended if the asylum seeker receives
the deportation order before leaving the Polish
territory.
In France, since transfer is generally organised before arrest, the average period of detention is relatively short. As a rule, transfer flights are scheduled
for the day after placement in a detention centre.
Families are also often placed in detention in the
morning before being taken to the airport in the afternoon or the next day. This implies difficulties in
terms of guaranteeing appeals against the transfer
decision since asylum seekers often do not have
time to consult the legal aid services. In such
cases, it can be impossible to lodge an appeal because of a lack of time. Asylum seekers often have
no documents other than the transfer decision. It
is therefore impossible to check the regularity of the
procedure, particularly in terms of compliance with
the deadlines stipulated by the Regulation.
In Austria, the detention period under the new legislation is two months from when the person receives notification of refusal of his application.
The law clearly indicates that the authorities must
endeavour to keep the detention period to a minimum. The text specifies the cases in which detention can be extended beyond the two month
period:
If the foreign national cannot be deported because the procedure is not finished, detention
may last up to six months.
If the identity and nationality of the asylum seeker are unknown or if the authorities do not
have the necessary documents to return him to
his country of origin or if the asylum seeker refuses deportation, detention can be extended
by ten months over a two year period. In this
case, the foreign national can be detained for
6 months, then freed before being detained
again for a further 4 months.
New legislation under discussion allows for an extension of this period to 18 months instead of the
current 10.

Detention duration
The duration of detention varies considerably
from 32 days in France to 6 months in Romania
and up to a year in Hungary. In Poland, the duration of detention may be between 30 and 60
days. This period can be extended if the asylum
seeker, while detained, receives notification of
the refusal of refugee status or subsidiary pro-

14

DUBLIN TRANSNATIONAL PROJECT Final report

II.5. Right to an effective


remedy against transfer
decisions
Non-suspensive
effect of appeal
The non-suspensive effect of the appeal is a major problem. Asylum seekers are too often transferred without having time to formulate an appeal
or to wait for the appeal decision. The legal rights
of asylum seekers are thus not protected. In Hungary, re-examination of the transfer decision ordered under the Dublin procedure does not suspend the transfer and does not allow for a
personal appearance before the court.
Re-examination is therefore only based on legal
procedures and formalities. The deadlines are
very short and asylum seekers have only three
days to submit their request before the court.
European Union countries that grant a suspensive appeal against the transfer decision are few,
but Poland can be cited as the exception.

Effectiveness
of the remedy
Besides the non-suspensive effect of the appeal,
very real problems arise in guaranteeing the rights
of asylum seekers under a readmission measure.
In Ireland, asylum law is the only area of law
where there is no precedence in spite of the fact
the English and more generally Anglo-Saxon law
is based on the principle of legal precedence. Jurisprudence in asylum law is not public and is not
accessible to lawyers. Only asylum seekers, on a
case by case basis, may be granted access to
the jurisprudence database, and such authorisation is only valid for the case in hand.
In Denmark it is almost impossible to have a Dublin transfer decision changed. Although a formal
procedure for appeals against transfer decisions
exists, it remains difficult in practice to obtain
cancellation of the decision. The Danish Refugee
Council has lodged over a hundred appeals
against transfer decision without obtaining a single cancellation.

weakness of charity structures or legal aid


schemes affect the quality of legal assistance for
asylum seekers in detention centres.
In Poland, detainees have the right to use the telephone, send letters and meet personally with a
representative of the UNHCR, with organisations
working on refugee issues and with legal aid organisations. People in the so-called deportation
centres often report that their rights to communicate with NGOs were limited.
In France, detainees have the same rights as
other foreign nationals in detention: the right to an
interpreter, a doctor, a lawyer and the right to
contact their family and legal assistance.
In Hungary, the lawyer has access to the file and
can meet the asylum seeker even in detention.
There is a national scheme to provide those in
need with free legal assistance, which is paid for
by the State, but this scheme does not apply to
asylum seekers. The legal fees paid by the state
are very low. Legal assistance and representation
for asylum seekers currently requires specific legal and linguistic knowledge, which are not common among Hungarian lawyers. Translation and
interpreting costs are not covered by the legal aid
scheme proposed by the State, which makes
external funding essential. The Hungarian Helsinki
Committee, a partner NGO in this project, provides assistance and legal representation for asylum seekers (including those under the Dublin
procedure). This activity is funded by the European Refugee Fund.
In Switzerland, legal advisors do not make regular visits to detention centres and are not informed of the arrival of newly detained asylum seekers. Furthermore, asylum seekers do not always
receive full information about the possibility of
contacting legal advisors, and the short appeal
deadline of 5 working days makes it difficult to
contact a legal advisor in time. Detained asylum
seekers can be represented by lawyers paid by
the State, but those are only responsible for detention issues and not asylum problems. An indication of these problems might be current statistics showing that the appeal rate in Dublin
cases is much lower than for other asylum decisions (in 2010 only 3.4% compared with 66% after negative asylum decisions and 42% after
inadmissibility decisions not concerning Dublin)*.

Furthermore, in certain cases, it can be difficult for asylum seekers to assert their right to
an appeal against a transfer decision.

Access to legal assistance or


advice from NGOs
Generally speaking, asylum seekers have access
to legal assistance via NGOs or legal aid systems.
However, this right is not guaranteed to the same
level in all countries. Detention conditions and the
DUBLIN TRANSNATIONAL PROJECT Final report

* Dpartement fdral de
justice et police (DFJP),
Rapport sur les mesures
dacclration dans le domaine
de lasile, Mars 2011, p. 17,
http://www.ejpd.admin.ch/
content/dam/data/migration/
rechtsgrundlagen/gesetzgebung/
asylg-aug/ersatz-nee/
ber-beschleunig-asyl-f.pdf.

15

II.6. Access
to the asylum
application procedure
after transfer
There do not seem to be any particular problems in accessing the application procedure
after transfer. In general, transferred asylum seekers have access to the normal and not the accelerated asylum procedure and resume their
procedure where they left off. Certain difficulties
may arise for asylum seekers who have already
received a negative decision, for example in Austria. In such cases, the asylum seeker may lodge
a second application, but this has no suspensive
effect and the migrant is likely be placed in a detention centre. He may therefore be deported to
his country of origin during the course of his
asylum application procedure.

factory. However, appeals before the court take


longer. Legally, the court has 60 days to make a
decision, but in practice, the appeal procedure
can take several months.
In Ireland, the rate of granting refugee status is
very low (1.3% in the first instance). Concerning
subsidiary protection, 75% of applications are
pending a decision. For the remaining 25%, only
23% of applicants received a positive decision.
Besides these two forms of protection, leave to
remain may be obtained, the duration of which
may vary from 6 months to a year or more. However the right to family unity is not automatically
granted. In practice, the Irish authorities encourage people requesting subsidiary protection to
accept the leave to remain. Asylum seekers are
under pressure to accept since if they refuse
this leave to remain, their application is returned to the bottom of the pile.

The suspensive effect applies only if there is a


change in the situation in the country of origin
(not in the applicants situation). Thus, war breaking out in the persons country of origin may be
a valid reason for him not to be deported during
a second or third application, but new reasons
for requesting asylum, such as being a political
activist in a foreign country, is not (which in actual fact, represents a violation of the Geneva
Convention).
In any case, the administrative formalities facing
the asylum seeker obviously differ from one
country to another; the harmonisation of asylum
systems is proving difficult to achieve.
These differences, aside from the conditions of
reception and the question of detention of asylum seekers, mainly lie in the actual implementation of the asylum procedure. They include the
duration of the procedure, the rate of granting
protection and the type of protective status granted.
In Austria, it is difficult for an asylum seeker to
obtain protection. In certain cases (generally negative decisions), the decision is made before the
first interview and the asylum seeker is informed
of the ruling during the interview. In other cases,
the asylum seeker may wait for months and sometimes even for years before a first interview
and therefore any decision. Sometimes, the decision and the entire procedure are completed in
just a few months, while in extreme cases, it
can take up to ten years. An asylum procedure
often takes between 5 and 6 years.
Inversely, in Hungary, asylum applications are
processed relatively quickly: generally within 60
days and this period may be legally extended by
a further 30 days. The Immigration Office usually
makes a decision within 45 to 90 days. As a rule,
the asylum procedure takes place within the
deadlines imposed, which proves highly satis-

16

DUBLIN TRANSNATIONAL PROJECT Final report

Decisions on asylum applications in 2009


DECISIONS *
TOTAL

EU27

FIRST
INSTANCE

POSITIVE DECISIONS **
FINAL
DECISIONS
ON APPEAL

TOTAL

FIRST INSTANCE
#

RATE OF
RECOGNITION (%)

FINAL DECISIONS ON APPEAL


#

RATE OF
RECOGNITION (%)

317,505

228,610

88,895

78,820

61,750

27.0

17,075

19.2

Belgium

21,700

14,365

7,335

3,190

2,910

20.2

280

3.8

Bulgaria

695

645

50

280

270

41.7

10

21.6

Czech Republic

950

530

415

125

100

18.8

25

6.0

Denmark

2,095

1,650

440

920

790

47.9

130

29.7

Germany

33,505

26,780

6,730

12,055

9,765

36.5

2,295

34.1

Estonia

25

25

17.4

0.0

Ireland

6,560

3,135

3,420

395

125

4.0

270

7.8

Greece

16,460

14,350

2,105

210

165

1.2

40

2.0

Spain

6,195

4,480

1,710

380

350

7.8

30

1.8

France

54,840

35,295

19,545

10,415

5,050

14.3

5,365

27.4

Italy

22,875

22,000

875

8,550

8,440

38.4

110

12.5

6,515

3,855

2,660

1,210

1,130

29.3

80

3.0

55

40

15

10

10

19.0

20.0

Lithuania

195

145

55

45

40

29.4

9.3

Luxembourg

670

465

205

140

110

23.6

30

15.3

Hungary

1,960

1,805

150

395

390

21.5

10

5.3

Malta

3,050

2,575

475

1,690

1,690

65.7

0.0

Netherlands

17,000

16,355

645

8,120

7,905

48.3

220

33.8

Austria

26,665

14,815

11,850

4,995

3,220

21.7

1,775

15.0

Poland

6,680

6,580

100

2,615

2,525

38.4

95

92.1

Portugal

95

95

50

50

51.1

Romania

1,210

540

670

210

115

20.8

95

14.2

Slovenia

200

130

70

20

20

15.2

0.0

Slovakia

355

315

35

195

180

56.2

15

41.7

Finland

2,715

2,650

60

1,010

960

36.2

50

80.6

Sweden

39,350

23,930

15,420

9,085

7,095

29.6

1,990

12.9

UK***

44,890

31,040

13,850

12,510

8,350

26.9

4,155

30.0

Iceland

60

25

30

11.5

12.5

Norway

23,180

14,700

8,480

4,935

4,510

30.7

430

5.1

Switzerland

19,345

12,695

6,650

6,665

6,025

47.5

640

9.6

155

80

75

2.6

2.7

Cyprus
Latvia

Liechtenstein

Data are rounded to the nearest five.


0 means less than 3.
- No decisions taken during the reference period.
* The total number of decisions refers to the number of administrative decisions rather than the number of individuals.
** Rate of recognition is the share of positive decisions (first instance or final on appeal) in the total number of decisions at the given stage.
In this calculation, the exact number of decisions has been used instead of the rounded numbers presented in this table.
*** Data on final decisions on appeal are estimates.
Source: Eurostat, EU member states grant protection to 78,800 asylum seekers in 2009

DUBLIN TRANSNATIONAL PROJECT Final report

17

Decisions of first instance in 2010


INCLUDING :
TOTAL
DECISIONS

POSITIVE
DECISIONS

SUBSIDIARY
PROTECTION

HUMANITARIAN
REASONS

222 105

55 095

27 045

20 400

7 645

167 010

Belgium

16 245

3 510

2 700

805

12 740

Bulgaria

515

140

20

120

375

Czech Republic

500

175

75

75

20

330

Denmark

3 280

1 345

660

520

170

1 935

Germany

45 310

10 445

7 755

545

2 145

34 865

Estonia

40

15

10

25

Ireland

1 600

25

25

1 575

Greece

3 455

105

60

20

30

3 350

Spain

2 785

610

245

350

15

2 175

France

37 620

5 115

4 095

1 020

32 505

Italy

11 325

4 305

1 615

1 465

1 225

7 015

2 440

425

30

370

25

2 015

50

25

20

25

Lithuania

190

15

15

175

Luxembourg

475

70

55

15

405

1 040

260

75

115

70

785

350

210

45

165

15

125

Netherlands

17 145

7 565

810

4 010

2 745

9 575

Austria

13 770

3 445

2 055

1 390

10 325

Poland

4 420

510

80

195

230

3 910

Portugal

130

55

50

75

Romania

425

70

40

30

355

Slovenia

115

25

20

95

Slovakia

295

90

55

30

205

Finland

4 260

1595

165

1 240

190

2 665

Sweden

27 630

8 495

1 935

5 955

605

19 140

United Kingdom

26 690

6 440

4 445

1 850

140

20 250

85

85

Norway

15 255

5 300

2 975

1 565

760

9 955

Switzerland

18 475

7 815

3 380

1 155

3 280

10 660

UE 27

Cyprus
Latvia

Hungary
Malta

Liechtenstein

REFUGEE
STATUS

- Not applicable
*One or two decisions of first instance
Data are rounded to the nearest five.

18

DUBLIN TRANSNATIONAL PROJECT Final report

III. Revision of the Dublin II Regulation


III.1. Context: weaknesses
of the Dublin system

functions observed in practice and the prejudices suffered by asylum seekers under the Dublin procedure.

The lack of information for people concerned by


how the Regulation works, the lack of legal and
material follow-up for transferred asylum seekers, the inability of charities and institutional organisations to provide asylum seekers with reliable information about their transfer and the
asylum system that will process their application, the total absence of any system to identify
and actually take into account the specific needs
of vulnerable people are all examples of the mal-

The statistics published in the Eurostat database


show that the main beneficiaries of the Dublin
system in 2009 were Germany, Switzerland and
Holland. The Dublin system enabled a major difference to be contrived between incoming and
outgoing transfers, thereby relieving the asylum
systems in these countries (see table below). The
highest increases in asylum applications due to
the Dublin Regulation were observed in Italy,
Greece and Poland.

Application of the Dublin Regulation in Europe (2009)


REQUESTS RECEIVED
STATE

Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Holland
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
Finland
Sweden
UK
Iceland
Norway
Switzerland
Total

TOTAL
REQUESTS
RECEIVED

REQUESTS
RECEIVED
ACCEPTED

REQUESTS MADE

INCOMING
TRANSFERS

TOTAL
REQUESTS
MADE

REQUESTS
MADE
ACCEPTED

OUTGOING
TRANSFERS

1,494
196
581
368
3,933
38
188
9,506
1,401
2,648
7,430
60
63
280
133
2,600
1,125
942
2,436
4,862
75
478
286
698
229
2,624
1,062
2
:
605

773
144
448
246
2,431
33
140
5,711
1,043
1,176
3,616
34
54
222
87
2,067
1,079
501
1,313
4,522
54
372
225
358
128
1,970
490
0
:
452

:
32
235
:
1,258
11
85
1,202
451
820
1,800
11
21
28
51
938
473
323
742
960
33
126
52
232
:
:
368
0
:
195

3,289
73
298
865
8,695
10
497
32
207
5,349
1,160
12
14
44
187
606
6
3,730
5,464
114
16
102
70
132
1,861
4,501
2,664
19
:
6,041

2,133
36
259
764
6,242
6
355
17
174
3,430
680
8
8
17
146
483
4
3,402
4,632
60
14
76
46
62
963
3,513
2,098
16
:
4,590

:
24
259
:
2,932
1
243
8
14
1,010
41
1
6
7
117
90
3
1,458
1,504
10
12
15
26
39
:
1,086
995
11
:
1,904

46,343

29,689

10,447

46,058

34,234

11,816

DUBLIN TRANSNATIONAL PROJECT Final report

DIFFERENCE
BETWEEN
INCOMING /
OUTGOING
TRANSFERS
:
8
-24
:
-1,674
10
-158
1,194
437
-190
1,759
10
15
21
-66
848
470
-1,135
-762
950
21
111
26
193
:
:
-627
-11
:
-1,709

: = no data available
Source : Eurostat.

The statistics for 2010


are still largely incomplete,
which is why we have chosen
to provide the data for 2009.

19

The Dublin system evaluation report by the European Commission, published on June 6, 2007,
already highlighted the ineffectiveness of the system. Between January 1 2006 and June 30
2007, of the 183,200 asylum applications lodged
in the Member States enforcing the Dublin system during this period, 39,000 requests were received by Member States under the Dublin system. A total of 46,700 asylum seekers were
concerned by a Dublin procedure (which represents 25.5% of the total number of asylum seekers). Although 59% of these requests were accepted, only 12,500 people were actually
transferred during this period (European Commission impact study, SEC (2008) 2962). These
figures indicate that the Dublin Eurodac system
affects a large number of asylum seekers within
the EU, although ultimately, only a very small percentage are actually transferred.
According to a 2009 study by the academic network Odysseus for the European Parliament, the
number of asylum applications lodged in European countries under the Dublin Regulation
concerned by transfer requests is relatively modest: transfers are requested by Member States
in only 12% of cases.
If we take the number of transfers actually implemented, the figure is even lower: the Odysseus study reports that in 2008, for 11,000 take
back requests that were accepted, only 5,400
people were actually transferred, i.e. about 50%.
4,000 take charge requests were accepted in
2008 but only 1,200 people were actually transferred. This means that only approximately 30%
of accepted transfers are actually implemented.
To conclude, one of the primary objectives of the
Dublin system, which was to eradicate multiple
requests, is far from being achieved. The statistics published in the 2010 annual report on the
activities of the Eurodac central unit in 2008,
23.3 % of asylum requests presented in 2009
were multiple applications (i.e. at least a second
application). However, this figure includes not
only cases in which the person concerned lodged
more than one asylum application, but also a
certain number of cases in which the asylum
seekers fingerprints were recorded by both the
Member State in which the migrant lodged his
application and by the Member State ultimately
responsible for examining it. The Commission included measures to resolve this incoherency in its
proposal to modify the EURODAC regulation,
adopted in December 2008.
16 - European parliament
and Council proposal
for a regulation setting
out the criteria and
mechanisms to determine the
Member State responsible
for examining an application
for international protection
presented in one of the Member
States by a third country
national or stateless person,
COM(2008) 820 final/2,
December 3 2008.

20

III.2. State of progress


of negotiations
III.2.1. Somewhat laborious
discussions
In December 2008, on the basis of its 2007 evaluation among other things, the European Commission presented its proposal to revise the Dublin Regulation16. Two years later, we are obliged
to report that discussions between the two co-legislators remain laborious, to say the least.
The Commissions proposal includes the following:
To enlarge the scope of application of the
Regulation to seekers and beneficiaries of subsidiary protection.
Concerning the efficiency of the system:
- Deadlines are fixed to make the procedure
more efficient and quicker;
- Several clauses have been clarified, particularly
in relation to the circumstances under which
the responsibility of a Member State ceases to
apply;
- A new measure concerning the sharing of relevant information before making transfers is
added to facilitate cooperation between Member States in terms of the practical conditions
of transfer.
Concerning the need for protection of asylum seekers:
- The Regulation describes in greater detail the
content, form and deadline for communicating
information to those seeking international protection;
- The Regulation provides for a right to appeal
against the transfer decision and requires the
competent authorities to decide whether or
not to suspend execution and allow the person
concerned to remain in the country until the decision is notified. Furthermore, the right to legal
aid and/or representation, as well as translation
assistance if necessary, is also clarified in order
to ensure greater effectiveness of the right to
appeal;
- A new measure is added, recalling the principle whereby no-one may be placed in detention simply because he has requested international protection. To prevent the arbitrary
detention of asylum seekers under the Dublin
procedure a limited number of reasons for detention are proposed;
- The right to family unity has been broadened to
include family members who have been granted subsidiary protection and who reside legally
in another Member State and to make it mandatory to reunite dependent persons;
DUBLIN TRANSNATIONAL PROJECT Final report

- The proposal enhances the protection granted


to unaccompanied minors during the Dublin
procedure to ensure the respect of their interests.
To provide a solution for situations in which
the reception capacities and asylum schemes
of Member States are subjected to particular
pressure and where the level of protection of
those seeking international protection is insufficient.
In the case of particular pressure suffered by certain Member States with limited reception and
absorption capacities, a new procedure is defined in the Regulation to enable the suspension of
Dublin transfers to the responsible Member State.
This procedure can also be applied if it is feared
that after a Dublin transfer, the asylum seekers will
not benefit from sufficient standards of protection
in the responsible Member State, particularly in
terms of reception conditions and access to the
asylum application procedure.
The European Parliament adopted its position at
the first reading regarding the Commissions proposal in May 200917. Since then, the European
elections have brought certain changes: the
Dutch rapporteur, Jeanine Hennis-Plasschaert
(ADLE - liberal democrat group), is no longer a
European member of parliament. A new European Parliament, formed by the June 2009 elections, and the new liberal Swedish member of
parliament, Cecilia Wikstrm, have continued
work on this subject and discussions with the
Council. Having replaced J. Hennis-Plasschaert
as rapporteur, Cecilia Wikstrm wanted confirmation of the position adopted by the European
Parliament in May 2009. This confirmation was
obtained on November 29 2010 during a meeting
of the Civil Liberties, Justice and Home Affairs
committee (LIBE). That the new European Parliament chose not to re-discuss the position
adopted in May 2009 was good news for all
those who defend the rights of asylum seekers,
since there was no guarantee that the new parliament would adopt a position as favourable as
that adopted previously.
continued disagreement
on certain points
Within the Council, discussions still appear to
have reached a stalemate regarding certain measures of the Commissions proposal, i.e.:
- the definition of family members in order to
reinforce the right to family unity; the definition
of detention in order to better define the placement procedure;
- the mandatory individual interview so that it is no
longer organised at the States' discretion only;
- the right to appeal against transfer decisions in
order to ensure a right to effective remedy; and
lastly
- the transfer suspension mechanism to prevent
specific pressure or insufficient levels of protection in certain Member States.
DUBLIN TRANSNATIONAL PROJECT Final report

The Councils position has still not been formalised but it appears that the procedural guarantees
that would benefit asylum seekers under the
Commissions proposal would not see the light of
day if it was up to the Council alone.
It seems to be the transfer suspension mechanism that poses the largest problem between
the two co-legislators. While most members of
the Council would be in favour of simply eliminating the system proposed by the Commission,
the European Parliaments position in May 2009
promoted ambitious, restrictive mechanisms for
solidarity, considering that the fair sharing of responsibility was one of the cornerstones of the
joint policies of the European Union. Although the
parliamentary assembly supports the temporary
transfer suspension mechanism, it mainly insists
upon the introduction of mandatory instruments
for all States including:
1) the formation of teams of national asylum experts to assist the Member States faced with
large numbers of asylum seekers.
2) the creation of a relocation program18 to enable beneficiaries of international protection to be
received by another Member State.
The European Parliament also invites the European Commission to make full use of its infringement procedures if countries continue to fail to
enforce community law.
Since the two co-legislators are not changing
their positions, the ball now seems to be in the
court of the Commission, which according to the
statements of Commissioner Malmstrm, is working in collaboration with the Hungarian presidency to find a compromise. According to the information available, an emergency mechanism
is under discussion to replace the temporary suspension mechanism. These initiatives are not limited to a simple change of wording. Firstly,
concerning the nature of the system: it would be
a last resort measure envisaged in exceptional
circumstances and for a maximum period of six
months. Secondly, concerning the reasons for its
application: the system envisaged would only
apply if a Member State were in a situation of particular urgency.
The other possibility considered by the Commission (application of the procedure when the standards of protection in the responsible Member
State are insufficient) would be eliminated.
Finally, concerning its triggering: the Commission would not have the power to implement the
system as the Council would also have a say in
the matter, which will not only considerably complicate the procedure, but also involve its main
critic This compromise is therefore worlds away
from the initial proposal; the new mechanism appears to be more of a symbolic measure than an
actual effective system.

17 - European parliament
legislative resolution
dated May 7 2009 on the
directive proposed by the
European Parliament and
Council setting out the criteria
and mechanisms to determine
the Member State responsible
for examining an application
for international protection
presented in one of the Member
States by a third country
national or stateless person,
COM(2008)0820
COD/2008/0243.
18 - Besides the term
relocation, internal
resettlement can also
be used to describe the transfer
from one Member State
to another of a person who
has been granted
international protection.
Relocation measures
are the sign of solidarity
between Member States
and for the moment,
have only been tested
from Malta to other States,
including France, Germany
and Ireland.

21

III.2.2. M.S.S. v. Belgium


and Greece: a discussion catalyst?
While most States remain staunchly opposed to
the transfer suspension mechanism, the European Court of Human Rights in M.S.S. v. Belgium and Greece on January 21 2011 ruled
against the systematic application of the Dublin
Regulation, calling into questions one of its sacrosanct foundations, the supposed equivalence of national systems within the EU. The
Grand Chamber ruled that sending asylum seekers to Greece was a violation of Articles 3 (prohibition on inhuman or degrading treatment) and
13 (right to an effective remedy) of the European
Convention on Human Rights (ECHR)19.
Aside from its immediate implications, the
courts ruling, by condemning Dublin transfers to
Greece, offers an new angle on the Commissions proposal and should, or so we hope, not
only serve as a catalyst to the negotiations but
also promote the main advances in terms of
reinforcing basic rights as proposed by the
Commission.

19 - See below for


a summary of the case
and the immediate implications
of the courts decision:
Greece: a symptom
of a Europe ill at east
with its asylum

20 - COM(2008) 820 final,


regulation proposed
by the European Parliament
and Council setting
out the criteria and
mechanisms to determine
the Member State
responsible for examining
an application for international
protection presented
in one of the Member States
by a third country national
or stateless person, article 5,
December 3 2008.
21 - Press release
by the court official,
no. 043, The Belgian
authorities should
not have deported an
asylum seeker to Greece,
21.01.2011.

22 - See the Forum rfugis


press release,
Systme Europen
Dublin : renvoyer
des demandeurs d'asile vers la
Grce viole la Convention
europenne des droits
de l'homme
("European Dublin
system: sending asylum
seekers back to Greece
violates the European
Convention on Human
Rights"), January 21 2011.
23 - See article 26(3)
of the Commissions
proposal (COM(2008)
820 final)..

22

Firstly, the right


of asylum seekers to information
and a mandatory interview:
The M.S.S. v. Belgium and Greece ruling confirmed the right of asylum seekers to information
and the need for a personal interview in order to
ensure that the responsible Member State is
determined according to the States obligations
as set out in Articles 3 and 13 of the ECHR. The
court thus considered that the interview process in Belgium as part of a Dublin procedure
did not enable the applicant to present his reasons for not wanting to be transferred to
Greece. This ruling could therefore support the
Commissions proposals in this area.
In Article 4 of its revision proposal, the Commission defines in greater detail the content,
form and communication deadline of information to be provided to asylum seekers. In particular, it proposes the adoption of a common information brochure to be used in all Member
States. According to the Commission, if asylum
seekers are better informed of the Dublin Regulation, its terms of application and its implications, they will better understand the procedure that determines responsibility and
therefore be better equipped to assert their
rights. Article 5 of the Commissions proposal
also introduces the obligation for Member
States to conduct an individual interview. The
purpose of this interview is to facilitate determination of the responsible Member State,
and particularly to enable the applicant to provide relevant information to identify this Member State and to inform the applicant orally of
the application of this regulation20.

The right to effective remedy:


Concerning the complaint regarding the absence
of effective remedy under Belgium law, Belgium
pointed out that a suspension request could be
made in cases of extreme urgency before the
Aliens Appeals Board, which would have suspended the migrants deportation to Greece until the Councils decision was pronounced, i.e. up
to 72 hours. The court answered that this procedure does not fulfil the criteria established in its
jurisprudence in matters of effective remedy: if a
person alleges that his return would expose him
to treatment prohibited under Article 3 of the
ECHR, his complaint must come under close
and rigorous scrutiny, and the competent authority must be able to examine the substance
of the complaint and offer suitable redress21.
With this ruling, the court condemns the Dublin
system as a whole and the current absence of
systematically suspensive appeals against transfer decisions in particular 22 . The judges also
clearly explained the courts approach to the
right to effective remedy, shedding new light on
this point of the Commissions proposal.
The proposal also includes the reinforcement of
legal guarantees granted to applicants, by including a right to appeal against transfer decisions.
In spite of the Councils objections, it will now be
difficult not to include Article 26(4) of the Commissions proposal in the final version of the revised regulation, stating that no transfer may
take place until the courts decision has been
made.
However, the courts appreciation appears to
contradict the Commissions proposal for a twostage examination of the suspensive effect of appeal: a competent court would rule within a suspensive period of seven days on the suspensive
effect of the appeal after expiry of this seven
day period23. Aside from the unnecessarily complex nature of such a system, the court seems to
question its coherency with Article 13 of the
ECHR: according to the judges, the effectiveness
of remedy according to Article 13 of the ECHR
requires both close and rigorous scrutiny of
the substance of the complaint and the suspensive effect of the appeal.
In its definition of effective remedy, the M.S.S v.
Belgium and Greece ruling also seems indirectly
to promote Article 26(6) of the Commissions
proposal on the possibility of granting legal aid
and/or free representation to asylum seekers (if
the applicant is unable to pay himself). In practice, asylum seekers in many States have very little time to prepare their appeals against transfer
decisions. A further problem is the technicality of
appeals against transfer decisions. In this
context, and as recalled by the court, it is essential that free legal representation be made
available.
DUBLIN TRANSNATIONAL PROJECT Final report

Finally, on the transfer


suspension mechanism:
As already mentioned, the Council is very firmly
opposed to the system proposed by the Commission; a system which was favourably viewed
by the European Parliament in May 2010 as a
long-term solidarity instrument. The courts ruling
offers a direct plea in favour of the Commissions measures in Article 31(2) of its proposal24.
In this second scenario, it is proposed that the
Commission would have the power to decide to
suspend all applicant transfers to a Member
State in which the level of protection was considered to be insufficient.
As it already pointed out a decade ago in the
case T.I.v. Great Britain25, the court recalls that
the competent authorities must not merely assume that the applicant will be treated according
to the guarantees of the Convention; they must
check how the authorities in the transfer country
apply their asylum legislation in practice. Although, in the case of Greece, the court had ruled in another case in December 200826 that the
return of an asylum seeker did not represent a
violation of the Convention, it did point out quite
clearly that since then, numerous reports had
been published on the practical difficulties posed
by application of the Dublin system in Greece.
The court therefore prevents States from hiding
behind systematic application of the Dublin Regulation and questions its foundation assumption
that national asylum systems within the Union
are equivalent to one another

24 - Extracts from
article 31 (COM(2008)
820 final):
Paragraph 1 :
When a Member State
is faced with a particularly
urgent situation which
places an
exceptionally heavy
burden on its reception
capacities, asylum system
or infrastructure,
and when the transfer of
applicants for international
protection in accordance
with this Regulation
to that Member State could
add to that burden,
that Member State may
request that such transfers
be suspended.
Paragraph 2 : When
the Commission considers
that the circumstances
prevailing in a Member
State may lead to a level
of protection for applicants
for international
protection which is
not in conformity
with Community legislation,
in particular the Reception
and Procedure directives,
it may decide in conformity
with the procedure laid down
in paragraph 4, that all
transfers of applicants in
accordance with this
Regulation to the Member
State concerned be suspended.
25 - European Court
of Human Rights, T.I v. Great
Britain, no. 43844/98,
March 7 2000.
26 - European Court
of Human Rights, K.R.S.v.
Great Britain, no. 32733/08,
December 2 2008.

DUBLIN TRANSNATIONAL PROJECT Final report

23

24

DUBLIN TRANSNATIONAL PROJECT Final report

The transnational Dublin project


This project aims to provide better information
about, and closer monitoring of, asylum seekers
in a Dublin Procedure27. In order to do this, a network of specialist European associations and information tools will be put in place. The project
will start in December 2009 and will last for 18
months. The objective is to guarantee continuity
in the legal, social and medical support provided

to asylum seekers transferred under the Dublin


Regulation. In addition to Forum rfugis, who is
coordinating the project, 11 other European associations will be participating.
The project was implemented during 18 months
(December 2009 and May 2011). The project
was funded as one of the European Refugee
Funds Community Actions.

I. Why such a project ?


The idea and the need for such a project stem from several simple facts :
- Due to the lack of information about, and
monitoring of, asylum seekers who are in Dublin Procedures, these individuals do not receive continuous legal and practical support
and often have their social and medical support
interrupted.

on the different procedures of Member States


for the taking in charge, or the taking back, of
asylum seekers under the Dublin regulation.

- The lack of general information or transparency


in the Dublin System makes the work of associations which help asylum seekers in
Dublin Procedures extremely difficult on a
daily basis. Indeed, they are presently unable
to systematically deliver reliable and complete information to either asylum seekers
or the authorities.

- The Dublin System has significant consequences for a high number of asylum seekers (in terms of procedural guarantees and reception conditions in particular), even though,
in the end, very few of them are actually transferred. This low proportion of successful
transfers can be partially explained by the lack
of information given to asylum seekers on the
Dublin System and the lack of access to the
procedure and to reception in the State to
which they are transferred.

- In general, there are very few exhaustive


texts on the Dublin System which are both
up-to-date and accessible in several languages. There is also a lack of documentation

- The specific needs of vulnerable asylum seekers are not taken into account during the process of taking in charge, or taking back, an
asylum seeker.

II. General presentation of the project


Its objectives
On the basis of the issues previously raised, the projects general objective is to develop the system of
information in order to improve the way in which the Dublin regulation works. To do this, the project will
consist of two clearly defined missions, which are specific and interdependent:
1) The first mission is to strengthen the ability of associations to inform asylum seekers on the process of being taken in charge,
or taken back by Member States under the
Dublin Regulation. This project aims to make
information booklets on national asylum systems available to asylum seekers, as well as to
provide an individual analysis of an asylum seekers situation in the State to which they are
transferred.
DUBLIN TRANSNATIONAL PROJECT Final report

2) The second objective is to assure continuity


in the legal, social and practical support provided to the asylum seeker. Dublin Transfers often
result in an interruption in the legal, social and
medical support to which an asylum seeker is entitled. For vulnerable asylum seekers, this interruption can have serious consequences. The project aims to reduce the length of this interruption
by creating a network of associations providing
support and assistance to asylum seekers.

27 - Adopted on 18th February


2003, the Dublin Regulation
(called Dublin II Regulation) is
designed to identify as quickly
as possible the Member State
responsible for examining an
asylum application on the basis
of objective and hierarchical
criteria. Where another Member
State is designated responsible
under the criteria in the
Regulation, that State is
approached to take charge of
the asylum seeker and
consequently to examine his/her
application. If the Member State
thus approached accepts its
responsibility, the first Member
State must transfer the asylum
seeker to that Member State.

25

Who is involved?

28

In addition to Forum rfugis, 9 European associations are involved in the project as partners, including:
- Comisin Espaola de Ayuda al Refugiado (Spain)
- Italian Refugee Council (Italy)
- France terre dasile (France)
- Helsinki Foundation for Human Rights Czlowieka (Poland)
- Hungarian Helsinki Committee (Hungary)
- Irish Refugee Council (Ireland)
- Jesuit Refugee Service Romania (Romania)
- Verein Asyl in Not (Austria)
- Flemish Refugee Action (Belgium)

Three associations who will not be receiving cofunding from the ERF are also participating in
the project, including the Swiss charity, lOrganisation Suisse daide aux rfugis, the Danish
Refugee Council and the Dutch Council for
Refugees.
Therefore, the total number of Member States
involved in the project is 12.

Presentation of the tools developed


The information brochures on national asylum
systems and application of the Dublin regulation

28 - See the organisations


presentation in the annexes

26

This project has enabled the production of a collection of information leaflets on the various asylum systems in the Member States of the network
member organisations. These leaflets present
the asylum system, and in particular, the asylum
application procedure, the rights of asylum seeDUBLIN TRANSNATIONAL PROJECT Final report

kers in terms of material and legal assistance, and


the national organisation involved, in the context
of a Dublin transfer. These leaflets exist in 6 languages: English, French, Arabic, Russian, Farsi
and Somali. For some, and when it proved necessary, the national brochure was translated
into the national language (e.g. Polish). These
leaflets are freely available, in particular via the
project web site, so that they can be distributed
as broadly as possible by the organisations working with asylum seekers under the Dublin procedure.

Individual follow-up
form of an asylum seeker under
the Dublin procedure
An individual information and follow-up form for
asylum seekers has been developed. This form
enables a review of the legal, social and medical
situation of the asylum seeker and his family. If required by the asylum seekers situation (vulnerability and risk of procedure abandon in particular),
this form will be passed on to the member of network in the potential State of return to enable the
organisation to assess, on the basis of the information available, the situation that will be faced
by the asylum seeker if the transfer procedure is
completed. This diagnosis will focus on issues regarding access to the procedure and material
assistance, particularly in terms of accommodation and detention. This diagnosis will be presented to the asylum seeker.
The follow-up form will also enable the network
members to obtain information immediately on
the situations of asylum seekers transferred under the Dublin procedure. The asylum seeker is
informed, prior to his transfer, of the possibility of
transnational follow-up by way of this individual
form. If accepted by the asylum seeker, the form
is transferred and the person is provided with the
contact details of the network member in the
country of return. This information is transferred
if required by the asylum seekers situation and if
the latter accepts it. The information provides
the partner organisation in the State of return
with detailed information on the legal, social and
medical situation of the transferred asylum seeker before the actual transfer. This information enables the persons arrival to be anticipated and
avoids duplication of the follow-up process, the
first step of which will have been completed by
the transferring country.

The network members provide the project coordinator with a monthly observation report presenting their activities in terms of follow-up of
asylum seekers and the implementation of the
tools available.
The issue of confidentiality of the information
passed on was discussed at length by the partners.
It is true that individual follow-up forms contain
personal information on the situation of the asylum seeker and his/her family. Extreme care must
be taken to ensure that this information is only
available to the authorised people directly responsible for the follow-up of asylum seekers under the Dublin procedure. In order to guarantee
confidentiality, we have decided to set up a framework for the use and transmission of these individual forms. Firstly, a confidentiality clause appears on the first page of the individual follow-up
form. It concerns any person who comes into
contact with the file. Furthermore, this individual
follow-up form is in Word format, protected by a
password. The password is only disclosed to the
partners who have signed a partnership agreement with the coordinator.
This partnership agreement, signed by the legal
representatives, is binding upon the parties and
contains a confidentiality clause. The confidentiality clause expressly states that the individual
follow-up form can only be released by the person providing follow-up in the transferring country to his counterpart in the responsible country
and ultimately to Forum rfugis as project coordinator. Respect of confidentiality is the responsibility of the partner organisations who have signed the partnership agreement. Furthermore,
the individual follow-up form will only be passed
on to the partner organisation if consent is obtained from the asylum seeker. A permission form
is signed by the asylum seeker, recalling the
conditions of the consent and the purpose of file
transmission.

The tools developed for the project and


the final report are available on the project web site: http //www.dublin-project.eu, which also has a database offering access to various documents
concerning the Dublin regulation and its
application.

After transfer, the asylum seeker may be called to


an assessment and orientation interview with the
network member receiving the individual followup form. This interview will enable validation of the
forms information, assessment of the applicants
situation and provision of information on the formalities to be completed to restart an asylum
procedure and obtain legal follow-up and material assistance as quickly as possible.
DUBLIN TRANSNATIONAL PROJECT Final report

27

A four-part schedule
The project had four distinct phases: a preliminary
phase, a test phase, an implementation phase
and a diffusion phase.

3 - Implementation phase
(June 2010 April 2011):

Setting up the network (exchanging information, developing the strategy and timetable for the
rest of the project)

Once the tools have been tested and revised,


they were systematically implemented during this
period. The procedure includes: the use and distribution of the information booklets; the creation
and communication of individual files; and the
conducting of information and evaluation interviews. The project will be monitored by the
monthly reports produced by each partner and
distributed by the coordinator. The coordinator
will also develop the website during the implementation phase.

Creating the models that will be used for the information booklets, the individual files and the
monitoring reports

4 - Communication phase
(May 2011):

1 - Preliminary phase
(December 2009- March 2010):
This will involved:

Developing the booklets and information tools


and transnational monitoring (also including their
translation into French, English, Arabic and Russian, and if possible, into the languages of network members).
This first phase concluded with the organization,
in March 2010 in Lyon, of a first full meeting, uniting all the participants. This will provide members
with the occasion to confirm the different tools
and their translations, and to put in place a common distribution strategy.
2 - Test phase
(March 2010 June 2010):
This experimental phase included:
The distribution of the information booklets
to national and European associations and
government agencies.
The use and communication of individual
monitoring files
The conducting of evaluation and orientation
interviews

A final conference will be organized in Brussels in


May 2011. Beyond those taking part in the project, this conference will also bring together other
parties who play essential roles in the support
and defense of asylum seekers at national and
European level. The objective will be to assess
the project, particularly the information and monitoring tools, and the procedures for using them.
On the basis of the monthly reports provided by
the network members, a final report will present
the different tools developed and used during
the project and the results obtained in comparison with the initial objectives. The conference
will also be the occasion to put together recommendations for the implementation of a systematic transnational monitoring of asylum seekers in the Dublin Procedure.
The website will assure communication on all the
tools put in place during the project. In addition,
all documents relative to the project will be passed on to the relevant European institutions and
national administrations, as well as to the European Council on Refugees and Exiles (ECRE)
and national networks of specialist associations.

The production of monthly monitoring reports


The development of the website

Expected results

To enable these objectives to be carried out, several meetings and excursions will be organized
at national level, and also more widely, at the level of the network:

Daily needs will be met : the monitoring and


support of asylum seekers in the Dublin Procedure will be improved

- Information and coordination meetings organized at national level (5 meetings per partner);
- National visits for the Romanian, Austrian, Hungarian and Polish partners to detention and
reception centres far from urban centres;
- A second full meeting in Vienna (Austria) in
June 2010, bringing together all the partners,
the purpose of which was to assess the projects progress thus far (the presentation of an
intermediary report) and, on the basis of each
partners experience, to amend, if necessary,
the information and monitoring tools, as well as
the procedures for using them.

28

This project is being developed to respond to


problems related to the Dublin Procedure encountered by asylum seekers and the associations who support them on a daily basis. The project will provide the associations with a real
network of expertise and savoir-faire at European
level, enabling them to put in place information
and monitoring tools and to establish effective
monitoring procedures.
In this way, the project intends to assure continuity in the legal, social and medical support given to asylum seekers in the Dublin Procedure.
Providing asylum seekers with reliable and comDUBLIN TRANSNATIONAL PROJECT Final report

plete information on the asylum system of the


country to which they are being transferred will
help reduce the incertitude and anxiety which
Dublin Transfers generally cause. Better information and better monitoring will reduce the number
of abandoned procedures which push asylum
seekers to go underground.
For the mid-to-long term, a method to be implemented at European level
In the mid and long term, the aim of this project
is to become part of policy developed at European level on the support and monitoring of asylum seekers, particularly the most vulnerable,
within the framework of the Dublin Regulation.
On 3rd December 2008, the European Commission presented its proposed recast of the
Dublin Regulation. One of the main amendments
involves a better exchange of information between Member States and with asylum seekers.
Other changes include a common information
brochure to be given to asylum seekers (article
4) and a personal interview with asylum seekers
(article 5) on the Dublin Regulation. In this
context, it seems clear that the procedures and
tools developed and implemented during the
project will constitute an interesting and useful
precedent for the European Commission, the
Member States, and even the future European
Asylum Support Office.

DUBLIN TRANSNATIONAL PROJECT Final report

29

from partner
organizations on the
project implementation

30

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Asyl In Not


I. National context:
legislation on asylum
and Dublin Field
observations and recent
developments

more, the application itself has no suspensive effect. This means these asylum seekers can be
deported even without having a proper interview
and a decision they could contest.

Asylum legislation is regulated in Asylgesetz


(AsylG) since 2005 and has been reformed several times since then. AsylG refers directly to the Dublin regulation and provides an additional special
admission procedure for persons under the Dublin
procedure.
After the application for asylum the Bundesasylamt
(Federal Asylum Office) has to inform the asylum
seeker within 20 days that they intend to reject the
application due to the Dublin regulation. There
have to be interviews after legal advice and in the
presence of a legal advisor, who is employed by
the Ministry of the Interior, and if it is indicated medical examinations.
Bundesasylamt can reject the application due to
the Dublin regulation and transfer the person to
the responsible member state. The asylum seeker has the right to appeal against this decision
within seven days. Asylgerichtshof (Asylum
Court) decides this appeal and has the power to
give it suspensive effect within seven days.
If there is no suspensive effect, the asylum seeker can be deported without a final decision from
the asylum court.
In case the application for asylum is a consecutive
application which is the case if a person applies for
asylum and he or she was not deported since his
last application for asylum, or in cases where a
person was deported but applies for asylum within
18 months after his last negative decision once

The practice of detaining asylum seekers varies widely and is regulated by Fremdenpolizeigesetz
since 2005 (FPG; Foreigners Police Act), which
was also reformed several times since it was enacted. It is possible to take a person to a detention centre (Schubhaft) from the beginning of the
Dublin procedure, if there are suspicions that the
asylum seeker will not cooperate with the procedure and will escape. It is also possible to detain
a person when he / she receives his / her negative
decision from Bundesasylamt. Finally, at the end of
the Dublin procedure (as well as throughout the
entire procedure) it is also possible to arrest a person in order to guarantee his / her deportation.
The decision to detain a person depends mostly
on his / her own behaviour in the past for instance
if he / she was previously in many other Dublin
member states, if he / she gave the same personal data in the member states, if it is a consecutive application, if it is a family or a single person
and if he / she tells the truth about his / her travel
to Austria. In practice there is also unequal treatment of different ethnic groups.
It is possible to lodge an appeal against this detention with Unabhngiger Verwaltungssenat
(UVS; Independent Administrative Senate) who
has to decide the appeal within seven days in
cases where a person is detained.
The number of applications for asylum has decreased significantly since 2002 from 39,000 to
11,012 in 2010. This trend seems to be continuing in 2011. For details see graphic below:

45 000

number of applications

40 000
35 000
30 000
25 000
20 000
15 000
10 000
5 000
0
1999

2000

2001

2002

2003

2004

DUBLIN TRANSNATIONAL PROJECT Final report

2005

2006

2007

2008

2009

2010

31

2. Assessment
of the project
implementation by
the partner organization

certain level of help should they be deported. The


most important thing was to make clear that filling
in the follow up sheet would not affect the asylum
procedure itself. Usually the worse their asylum
procedure in Austria looked the more they were
willing to take part.
Although many people agreed to take part they often moved on to another country, they did not
make contact with the relevant partner organisation or returned back to Austria after a very short
time. Additionally, it often was a problem for the relevant partner organisations to find the clients and
make contact with them.

As the project needs a lot of administrative work


in the background, Asyl in Nots contact person
installed in her office a few tools to make the handling of the projects tools as simple as possible.
This was the follow up registry where every single
follow up sheet must be filled in with name, code,
date of filling in and passing on and also the status of the client and the follow up sheet.

The homepage was the most important tool for


Asyl in Not to spread the brochure to the other
asylum NGOs in Austria and to inform them about
the project itself.

They filled in the follow up sheet for every client


who could be deported to another Dublin country.
Most of the clients came to the office to seek help
by themselves, in some cases Asyl in Nots
contact person went to a detention centre to take
contact with them.

However, there were also problems with the implementation of the project. This was on the one
hand due to a lack of cooperation by the authorities in the reception centre Traiskirchen, on the
other hand also due to the organisation of the
conditions in the detention centres, which are viewed as normal prisons. So although Asyl in Not
could meet their clients in a detention centre it was
harder to find other potential cases which could
have been suitable for the project because they
cannot make contact with the inmates.

Asyl in Nots contact person also formed a network


with an NGO who takes care of asylum seekers
and refugees from the psychological point of view,
who also uses the follow up sheets in cases where
it seems necessary.
In practice it was not hard to convince the clients
to take part in the project, as long as they could
see advantages for themselves from it such as a

CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization
asylum seekers under the Dublin
procedure who benefited from
an individual diagnosis
asylum seekers directed
to a partner

26 (with follow up sheets) [05.04.2011]


about 10 cases were other requests where we passed
on the contact data of the relevant partner organization
( my friend is in France and needs help can you
help me? )

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited
from an orientation interview
Asylum seekers received from the partner

32

DUBLIN TRANSNATIONAL PROJECT Final report

3. Analysis of the
application of Dublin
at national level
(Case studies)
The most important topics for our clients were :
-

family relations
health problems
insecurity of a certain country
integration

Most of Asyl in Nots clients came to Austria because of their relatives who already lived there as
refugees or at least as asylum seekers or with
subsidiary protection. These relatives were not
just distant relatives but also sons and daughters,
brothers and sisters they lived in the same household with for a long time, and even minor children and husbands and wives in cases where the
status as a family member was formed at a later
time than the first application of asylum in Europe.
In these cases it became very clear that the unity
of the family was not respected, except in cases
where the family was formed before the asylum
seekers left their home countries, but even then
they had to prove the existence of their family life.
Applications due to Art 15 Dublin II regulation after their first deportation to the responsible country were treated very slowly and often refused,
even in cases where the asylum seeker had a minor child in Austria who had refugee status.
In two cases Asyl in Not also noticed that minors
who came to their relatives to Austria were in one
case deported, in the other case sent to their mothers to Poland as Austrian authorities claimed
but in fact the mothers have not been in Poland
for several months. The minors informed authorities of that during their asylum procedures but
obviously nobody believed them or checked if
this was true.

M. K., 22 years old, from Chechnya married


her husband back in 2006, two months before
he had to leave his home country. He is a refugee in Austria now for some time. Unfortunately
he said during his own procedure that he is
married, but called her with her private name
Maryam which is completely different from
her passport name a common phenomenon
in Chechnya. So from his asylum procedure it
wasnt sure if she was the same person he
mentioned in his procedure.
After two interviews her procedure was admitted because they could convince the Bundesasylamt that they were married before.

K. T. came to Austria in 2008 for the first time


because she married a refugee. She became
pregnant, lost her baby, finally we also lost her
Dublin procedure and she was deported to Poland, where she was in prison for a few months.
All in all she applied for asylum in Austria two
DUBLIN TRANSNATIONAL PROJECT Final report

times and finally gave birth to her son in Austria.


Bundesasylamt first wanted to reject her sons
application too for Dublin reason and expelled
him with his mother to Poland, but finally our
appeal succeeded. According to Art 7 Dublin
Regulation the procedure was admitted for
Khedi and her son.

Mr. M. I., Mrs. E. L. and their two children, aged one year and three years, the older
daughter is seriously mentally and physical handicapped was almost separated by a decision
of the Bundesasylamt because Poland was held
responsible for Mr. Is case, while the Czech Republic was held responsible for Mrs Ls and
their childrens case. Asylgerichtshof claimed
this separation was a violation of Art 8 of ECHR
and upheld the appeal.
Still, Austrias authorities tried to prove that this
was not a family and asked for a DNA-Test.
The clients accepted that, but as they first could
not pay the bill which was necessary to receive
the results. So Bundesasylamt once again expelled wife and children to the Czech Republic,
the husband to Poland, we appealed against it..
Mrs. L and her children were deported to the
Czech Republic. A friend of the family finally organized the money, Asylgerichtshof gave the
appeal suspensive effect, so they could come
back.
Finally Asylgerichtshof upheld the appeal and
the family was admitted to the procedure a second time and now has a procedure in merits.

The second most significant group of clients were


asylum seekers who were not given medical
treatment in the responsible state, usually Poland.
In general we saw that the general medical service in Poland was not bad, but there were very
serious singular cases where medical service
was not provided and it led to a serious harm of
these persons health. All of them came to Austria
with a live-threatening medical condition.

P. E. came to Austria for the first time in 2009


with her 17 years old son, because her adopted
son has refugee status in Austria and she wants
her younger son to be in good hands should
she die. She has cancer and already had an
operation (hysterectomy) but no accompanying
chemotherapy. So the cancer was not gone.
Chemotherapy was started soon after she
came to Austria because her medical condition
was very serious. Still Austrian authorities (Bundesasylamt as well as Asylgerichtshof) could
not see a violation of Art 2, 3 ECHR because in
Poland her therapy would be continued anyway.
At the beginning of October 2010 she was deported to Poland. She immediately went to the
doctor in Dembak, showed him her medical

33

papers from Austria where you can see the


exact medical condition she has and which therapy she should get. The doctor said he is not
interested in these papers in German. He also
was not interested when she said she had cancer and needs her chemotherapy and he even
refused to pass her case on to a hospital. He
said he could not do that.
Once she had a seizure with heavy convulsions
and unconsciousness. When her son went for
help they gave him the vitamin-Pills Centrum
his mother just has a weak circulation. Finally
she came back to Austria, where the doctors
found that she developed metastases in her
lung during her two months in Poland.
After her return to Austria her procedure was finally admitted because the aggravation of her
medical condition as a result of a lack of medical treatment was proven.

Mme T. M. is HIV-positive and now in her second asylum procedure in Austria. She came to
Austria via Poland and applied for Asylum in
October 2008. She wanted to be in Austria because she has relatives here. Austria rejected
her application and she was deported to
Poland.
In Poland she and her children were taken to a
detention centre, they took away her medication and her health became increasingly worse.
Further medical treatment was explicitly refused
for the reason that she was already dead. So
she came back to Austria, where she applied
once more for asylum
In Austria the doctors discovered a heavy aggravation of her disease. Still, Bundesasylamt
rejected her application and expelled her to
Poland once again. Asylgerichtshof upheld the
appeal, pointing out that she could only be deported to Poland if it is ensured that she will get
the necessary treatment. Two more times Bundesasylamt did not follow the Asylgerichtshofs
directives but expelled her two more times to
Poland. Finally, after more than one year of Dublin procedures she was admitted to the procedure in merits.

There was also one baby with lung problems


who was kept in a detention centre for three
months without any treatment. After they came
back to Austria and saw that the chances were
very bad they moved on to another country.
There were also reports from clients who reported that they came to Austria because they did
not receive medical treatment in Poland. There
was for instance one man who said he only received cough syrup when he came to Austria
he was immediately taken to hospital because he
had tuberculosis. In another case an eight month
pregnant women (and her three minor children
and her husband) received neither medical service, nor accommodation so they came back. In

34

one case a man had a hernia and he was not


operated on although he had severe pain because it was too expensive.
Still, there were also asylum seekers who said
they always received the treatment they needed
in Poland, but obviously there are still many incidences where in serious cases the treatment is
not guaranteed.

The third group are persons who did not feel


safe in the responsible state. These cases vary
between persons who have heard that Poland is
not a safe state, others said they have been
threatened but not attacked, but there were also
more serious cases.
In one case a womans husband was killed obviously for political reasons in Poland and the family was threatened several times. After a long
procedure this woman and her children were admitted in Austria and we never passed on the follow up sheet.

L. K. and her family ((her husband R.; two


children from her first marriage, three children
with her second husband) comes originally from
Chechnya and had to leave her home country at
the end of 2007 because her husband and his
brother A. with his family (who also left the
country at the same time) had serious political
problems. Back in Chechnya they all lived together.
In 2008 they came to Austria together with her
husbands brother and his family and applied
for asylum. They came via Poland, so all the applications were rejected. R., L. and the family
was deported, while A., his wife R. and his five
children could stay in Austria.
L. and R. continued their asylum procedure in
Poland but the family was threatened all the
time by the persons R. fought together with
before, who then changed sides and want him
to change sides too so in fact he was persecuted by the Chechen government in Poland.
R. left the accommodation before long and
started living with his friends. He hardly ever visited his family, and if he did so, then at night.
He told his wife to tell everybody that they are
divorced and that he married somebody else.
But that did not help. One day there were men
who came to her to the accommodation inside
her room, threatened her so that she would
say where her husband is. After that incident
the family was brought to another accommodation. A little later, her 17 years old son was
threatened on the street.
So in 2009 they decided that they were not
safe in Poland and so L. and her five children
left for Sweden. Sweden did not assume Poland to not be safe for the family. Sweden rejected their applications and they returned to
Poland.
DUBLIN TRANSNATIONAL PROJECT Final report

L. and her oldest son were threatened several


times, so L. and her children (except her oldest
son) went back to Austria in July. In August her
oldest son followed the family. Two days later R.
was killed and found dead and his mutilated
body was found close to Warsaws train station.
Austrias authorities initialized a Dublin procedure and finally expelled the family to Poland.
The reasons were that a deportation is not a
violation of Art 2, 3 of ECHR and Poland is a
safe state. Against this decision we made an
appeal, pointing out that Poland is neither safe
for this family, nor can the family be deported
because it is a violation of Art 2, 3 of ECHR. Additional they need the support of Aslan and his
family because of their extremely hard situation.
Asylgerichtshof upheld the appeal and only a
very few weeks later the family received refugee
status.
In another case a twelve years old girl was almost
raped in Poland and so the mother decided to
leave Poland with her children. In this case we did
not succeed.

themselves responsible for enabling him to return. Finally with UNHCRs help he could return.
A second Dublin procedure with Greece which
was initiated immediately after he arrived did
not end with Mr. S. getting expelled.
In very few cases integration was the reason why
they wanted to stay in Austria. This was only in
cases who were in the asylum law from before
30.06.2008 and lived in Austria for a few years,
until finally the Court of Administration rejected
the application due to the Dublin II regulation
while the applications had suspensive effect for
years and the families were in Austria legally. This
was especially hard for families with children who
went to school, were well integrated and suddenly were deported to countries they had no relationship with.
According to my observations in my everyday
work for asylum seekers in Dublin procedures
and the exchange of information with Austrian
Partner organisations I located the following practices in general:
vulnerable groups

Finally the fourth group of Dublin refugees were


those who fled from a member state, which is obviously not capable or willing to make a proper
asylum procedure and offer the asylum seekers
the necessary social services. These were mostly
persons who came from Greece.

M. H. S. came to Austria via Greece for the first


time in October 2008. This case was finally refused in October 2009. In December 2009 he
applied for asylum a second time and in February 2010 this application was also refusted.
In February 2009 he was deported to Greece.
In Greece he was kept in a detention centre for
one week. After he was released he had problems and went to Macedonia, where he stayed
until June 2010. In June 2010 he returned to
Austria and applied for asylum a third time.
There he had a short interview, mostly concerning his way to Austria. He was taken to a detention centre our appeal against this had no
success.
In July 2010 he was deported to Greece once
more. Until then he never had a detailed interview about his stay in Macedonia from February
to June 2010, which is important regarding Art
14 / 3 of the Dublin Regulation. After his deportation we received another negative decision
which we contested. Asylgerichtshof finally up
held my appeal and admitted him to the procedure and ordered more investigations in his
case.
After we had troubles to find him we finally managed to contact him in Greece and struggled
for almost six months to get him back to Austria legally, because Austrias authorities (Bundesasylamt as well as the embassy) did not see
DUBLIN TRANSNATIONAL PROJECT Final report

Unaccompanied minors are usually examined


(sexual characteristics, dental examination and
pastern joint X-ray). These methods are very
controversial because they do not take enough
regard to the deviating process of the physical
development in different races and ethnicities.
Unaccompanied minors receive a legal advisor as
their legal representative.
Single mothers are not recognised as a vulnerable group in the Dublin procedure.
Victims of torture are not recognised as a vulnerable group in the Dublin procedure. Only in
cases where a significant trauma leads to a violation of Art 2, 3 of ECHR in case of a deportation the person will not be deported, which is very
seldom recognised.
family unit and humanitarian clause
As described above the family unit is violated in
many cases. Families which were formed after
the first application in a member state are hardly
ever subsumed under Art 7 of the Dublin regulation. Even families who were formed before entering Europe often have problems being recognised as families.
detention practices
All detention centres are old prisons and they still
work the same way: the inmates have to stay in
their cell all day long, except a walk for half an
hour a day. The prison conditions are said to be
worse than in other prisons.
Detention practices are very different and seem to
differ based on the asylum seekers citizenship.
Persons from Afghanistan or in general from
Africa are more likely to be imprisoned than per-

35

sons from the Russian Federation. Men are in general more likely to be imprisoned. Although even
children and families are imprisoned, at least one
night before they get deported.
The decision to imprison a person depends on
the persons history and behaviour: was he in
many other EU-states before, did he give consistent personal data, did he hide from being deported before.
In general there are phases where more persons
are imprisoned, after the NGOs write more appeals against detention less persons were imprisoned. The law concerning detention of asylum
seekers are tightened very often and lead to increasing numbers of persons in detention centres. These laws are usually eased by the Court
of Administration so that the law conforms to the
constitution.
transfers
Asylum seekers are taken from their accommodation, usually in the middle of the night, so that
the police is sure that everybody is at home. In
cases where children will be deported, the police
officers no longer carry weapons with them and
do not wear uniforms. In all other cases they do.
There is also a translator with the police.
Depended on the case the asylum seeker is longer or shorter in prison before he is deported to
the responsible state. In most cases even families the asylum seeker has to be in prison for
at least one night. During this period there are for
instance medical examinations, which should ensure that the person can be transferred.
Transfers take place by bus, plane or car (by car
when there are very short distances, for instance
to Slovakia or Czech Republic). The time of the
transfer is planned so that the asylum seeker arrives in the morning in the responsible state.
Documents of identity should be returned to the
asylum seeker, but there are many cases reported where asylum seekers was deported without
these documents.

36

4. Recommendations
at national level
- The cooperation of the national authorities was
poor, we did not even manage to see the detention centre and the reception centre at the
meeting in Vienna.
- The use of the humanitarian clause is hardly
existent and should be improved.
- The unity of the family is not maintained in
many cases and the situation is constantly
changing for the worse.
- All kinds of bad conditions in a Dublin member
state (general conditions, medical conditions, a
possible threat of the individual security) are either negated by the authorities, or claimed to
be irrelevant. That often leads to cases where
the asylum seekers human rights are violated.
- There is no consistent judicature concerning
Dublin cases. Similar cases are often decided
differently, as we can see from the case studies
above.

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Flemish refugee


Action (Vluchtelingenwerk Vlaanderen)
1.National context:
legislation on asylum
and Dublin. Field
observations and recent
developments
1.1. The Belgian procedure
Belgian law provides for two different kinds of
protection statuses: the Refugee status in accordance with the Geneva Convention of 1951,
and the Subsidiary protection status in accordance with the European Qualification Directive
(2004/83/EC).
The Belgian Alien Act of 15 December 1980 is the
main national framework for these protection statuses and the asylum procedure. The authorities
responsible for the examination of any application
for protection in Belgium are the Aliens Office, the
Office of the Commissioner General for Refugees
and Stateless Persons (CGVS/CGRA), the Aliens
Litigation Council and the Council of State.
This part focuses on the Dublin procedure; for
more information on the asylum procedure please
consult the information brochures.
The Aliens Office is the authority where all asylum applications are registered and processed.
On the day of the application, the Aliens Office
takes a photograph and fingerprints of the applicant. They will also be screened for tuberculosis.
The Aliens Office will do a first interview with the
applicant either that day or a few days later. This
first interview focuses on the identity, the nationality and travel route to Belgium and is written
down in a report. There is no lawyer present during this interview.
In cases where there is no Eurodac-hit but in the
first interview the applicant mentions passing
through another Dublin Convention member
state, the Aliens Office may do an extra Dublininterview with the applicant, during which they
focus more on the route. There is no report from
this interview. According to statements from the
Dublin Unit of the Aliens Office this will change
soon and the Dublin interview will take place with
the first interview.
DUBLIN TRANSNATIONAL PROJECT Final report

In cases where there is a Eurodac-hit and the


Aliens Office is almost sure the corresponding
country will take the applicant back, the applicant
will immediately be placed in detention. This detention is allowed for a maximum of one month.
However, in exceptional circumstances (complicated cases, for example when there are several
hits) detention can be extended for one additional month. In cases where the applicant is not detained from the beginning, he will be called back
at a later date or will receive the Dublin decision
by post.
When the Aliens Office finally decides another
country is responsible for the applicant and the
responsible country agrees to take the applicant
back (or does not answer within the given time),
the applicant can either be detained for one
month in order to effectuate the return, or either
receive an order to leave the territory by a certain
date. In the second case one can ask financial
help from the Aliens office in order to effectuate
the return.
Appeals against decisions of the Aliens Office
regarding the Dublin procedure take place at the
Aliens Litigation Council (ALC). This is called
a cancellation appeal and it has no suspensive effect. This means that even after having lodged an
appeal, the Aliens Office can expel the applicant
or transfer him to another European country. This
is why the law provides the possibility to lodge a
suspension application at the same time. This
suspension application allows applicants to ask
that the decision by the Aliens Office will not be
actioned during the appeal procedure before the
ALC. The ALC may reject the appeal or cancel
the decision and send the application back to the
Aliens Office for further examination.
In cases where the Aliens Office decides that
Belgium is responsible for the examination of the
application, the application will be transferred to
the Office of the Commissioner General for
Refugees and Stateless persons (CGVS) for
examination on the merits.

1.2. Reception
During the whole procedure from the moment
an application is made at the Aliens Office to the
final closure of the procedure - any person who

37

applies for asylum has the right to reception.


The reception is organised by Fedasil (Federal
Agency for the Reception of Asylum Applicants)
and consists of accommodation in a reception
structure, meals, social, medical and psychological guidance, and also the possibility to have
access to certain training courses and programmes of voluntary return. Only in this reception structure one will benefit from assistance from the state; if the applicant
decides to not stay there, he can only receive
medical support from the state. In principle
the first months of the stay will be in a collective reception centre, afterwards the applicants can transfer to individual houses or
structures.
An important exception to this principle of
reception is made for persons who make a
cancellation appeal against their order to
leave the territory (for example when Belgium decides another state is responsible
under the Dublin Convention); as said, this
appeal has no suspensive effect by itself,
which means the order is still enforceable
and therefore the right to reception has ended. Only when this appeal is made together
with a suspension appeal the right to reception continues on condition this suspension
appeal is sustained. When the cancellation
appeal is sustained the right to reception
also revives.

1.3. Statistics
In 2010 19,941 asylum applications were made
in Belgium: 19,167 directly at the Aliens Office,
304 in a detention centre, and 470 at the border.
16,532 of these were first applications. The ten
most common countries of origin were Kosovo,
Iraq, Russia, Afghanistan, Guinea, Serbia, Macedonia, Armenia, DRC and Syria. 2,107 applicants
received refugee status in 2010, and 711 received subsidiary protection status.
In 2010 there were 3,382 Eurodac-hits; the largest number of hits referred to Poland (701),
Greece (447), Germany (333), Italy (246), and the
Netherlands (242). 2,146 persons were finally
determined to be Dublin cases and the responsibility of another member state.
926 persons were detained after the agreement
of the responsible state, in order to effectuate the
return. 404 persons were detained while awaiting
the agreement of the responsible state.

2. Assessment
of the project
implementation by the
partner organization
As stated in the introduction, Flemish Refugee
Action has but a few pilot projects in which it
works with asylum applicants directly; mainly,
FRA gives information and advice to those working directly with asylum applicants such as case
workers andvolunteers, as well as lawyers. FRA
was highly dependent on other organizations to
reach asylum applicants in the Dublin procedure
and to complete the individual follow up file to be
sent - through FRA - to one of the partners in the
Dublin project.
Several organizations and partners were contacted to find ways to do this follow-up. Among
them were organizations who visit detention centres where Dublin asylum applicants are mostly
held.
Another option that was explored, was looking for
Dublin cases in FRAs project on individual housing for asylum applicants, organized with several partner organizations. However, asylum applicants are only allowed to apply for an individual
reception place after an initial period of four
months in a collective reception centre; most
asylum applicants under the Dublin procedure receive their decision while staying in one of the collective reception centres run by Fedasil. Moreover, the applicants with a Dublin decision who
were present in the individual housing project
were mostly asylum applicants who applied for a
medical stay as well and for that reason could not
be transferred to the responsible member state
under the Dublin convention (for more information
on this see below).
A third attempt was the publishing of an open call
in two wide-spread newsletters among member
organizations, volunteers and people interested in
the subject of refugees. In this case as well, no
positive response was received.
The lack of response is mainly due to the fact that
those working with asylum applicants have a big
case load and could not take up the extra work
of interviewing the asylum applicant with regard
to the Dublin project, and fulfilling the communication and reporting needs with FRA.
FRA also did not receive any cases through the
individual follow-up files from the partners in the
other countries. Meaning that in this way as well
there was no follow-up possible in any individual
cases.
For the abovementioned reasons FRA has not
been able to implement the individual follow up
and does not have statistics generated within
this project.

38

DUBLIN TRANSNATIONAL PROJECT Final report

Several times, references to partner organizations in the project were made, mainly when lawyers needed extra information about the asylum
procedure or the general situation in the country
to which their clients were to be transferred. Social workers in the closed reception centres and
the visitors of these centres were also informed
by FRA of the existence of the information brochures and website during formal and informal
contacts.
FRA often receives questions about the Dublin
procedure through the legal helpdesk, which is
open to everyone volunteers, social workers, lawyers, asylum seekers etc. Moreover, FRA received questions on Dublin directly from asylum
seekers who found FRA in several ways. In all
these situations the partnership under the project
and the information in the brochures proofed to
be very useful.
For the future, after the implementation of the
project, these aspects will keep helping FRA to
give better assistance to everyone who comes
into contact with Dublin cases.

3. Analysis
of the application
of Dublin at national
level (Case studies)
3.1. MSS vs Greece
and Belgium
During the course of the Dublin project the
ECtHR ruled on the application of the Dublin regulation with regard to Greece. In this important
decision the ECtHR decided that the detention
and living conditions in Greece are a violation of
article 3 of the ECHR, and that the lack of an effective legal remedy for asylum seekers in the
country is a violation of article 13 of the ECHR.
With regard to Belgium, the transfer to Greece is
considered a violation of article 3 of the ECHR
and the extremely urgent procedure before the
ALC (named Aliens Appeals Board in the decision) was considered to be in violation of article
13 of the ECHR.
As this case was already discussed above, under
section I, this part will only consider the violations
by and implications for Belgium.
Violation of article 3 of the ECHR:
Firstly, Belgium was found guilty of indirect refoulement, because by sending him back - it
exposed MSS to the risks arising from the deficiencies in the asylum procedure in Greece Even
if there is in theory a possibility to make an appeal
before the ECtHR in Greece, this is not a real opportunity considering the problems asylum seeDUBLIN TRANSNATIONAL PROJECT Final report

kers encounter there. The Belgian authorities


should have known that there was no guarantee
that the asylum application of MSS was going to
be examined properly in Greece; not only should
Greek law have been examined but also the way
the law is executed in practice.
Moreover, Belgium was found guilty of direct refoulement, by knowingly exposing MSS to the
detention and living conditions in Greece (which
are considered a violation of article 3 of the
ECHR). The procedure before the Aliens Office
left no possibility - for example on the questionnaire - for MSS to state the reasons for objecting
to his transfer to Greece. The argument of the
Belgian state that MSS did not inform them
about the reasons for not wanting to be returned
to Greece is therefore unfounded. Moreover,
the Belgian authorities knew about the situation
in Greece, but nonetheless systematically applied the Dublin regulation to transfer people to
Greece without so much as considering the possibility of making an exception. The Court considers the diplomatic assurances by the Greek
authorities not to be sufficient to ensure adequate protection, given the reliable sources that
have reported about the situation in Greece, and
given that they were only sent by Greece after
MSS received the decision that he had to leave
Belgian territory. They were also worded in general terms and contained no guarantees
concerning the applicant in person.
The Court considered that it was up to the Belgian authorities not merely to assume that MSS
would be treated in conformity with the Convention standards but, on the contrary, to first verify
how the Greek authorities applied their legislation
in practice. Had the Belgian authorities done this,
they would have seen that the risks the applicant
faced were real and individual enough to fall within the scope of article 3 of the ECHR.
Violation of article 13, in conjunction with
article 3 of the ECHR:
The ECtHR ruled that MSS did not have an effective remedy available to him against the expulsion order. Since the Court found there to be
a violation of article 3 against Belgium for transferring him to Greece, there was an arguable
claim under article 3 relevant for the application
of article 13 of the ECHR.
The Court concluded that in the extremely urgent procedure applicants are prevented from
establishing the arguable nature of their complaints under article 3 of the ECHR. The ALC limits its examination to verifying whether the person concerned had produced concrete proof of
the irreparable damage that might result from
the alleged potential violation of article 3 of the
ECHR, thereby increasing the burden of proof to
such an extent to hinder the examination of the
merits of the alleged risk of a violation. New material that was added by the applicant was also
not always taken into account.

39

The Court found there to be some practical obstacles in the extremely urgent procedure as well,
for example the fact that the lawyer has to appear
for a hearing at the ALC within one hour. And finally, the Court states that it fails to see how, without a decision having suspensive effect, the
ALC could still offer the applicant suitable redress even if the ALC found a violation of article
3 of the ECHR.
So far the decision of the ECtHR in the MSS
case has had the following consequences
in Belgium:
Since the 20th October, Belgium had already
stopped transfers to Greece pending the decision
of the Court. Since the decision of the ECtHR
Belgium has confirmed that it will no longer be
sending asylum applicants back to Greece. All
new applications after this date for which normally Greece would have been responsible, are
now examined by Belgium. For all the applications that were made before this date, for which
a Dublin decision was taken and an order to
leave the territory was delivered, the applicants
will be able to present themselves at the Aliens
Office again once the six months for the transfer
under the Dublin procedure has passed. Asylum
applicants who were granted an interim measure by the ECtHR will have their Dublin decision
automatically retracted and will be able to present
themselves to the Aliens Office again for the examination of their application by the CGVS.
The Aliens Office is changing the questionnaire
that is being used for asylum applicants under the
Dublin procedure. They are changing the questionnaire in a way that the asylum applicant has
the possibility to bring forward any reason for
not wanting to be transferred to the member
state that is being held responsible.
In a few important decisions of the 17th February 2011 the ALC has made clear the impact
of the decision in the MSS case on the extremely
urgent procedure. The ALC is going to make
sure that the burden of proof is lowered to a level where the applicant will be able to establish
the arguable nature of the claim under article 3
of the ECHR (but also other relevant articles in
the Convention such as for example article 8 of
the ECHR). In deciding whether the applicant has
an arguable claim the ALC will take into account
the general situation in a country as well as the
specific situation of the applicant. The ALC
confirmed that the extremely urgent procedure
has automatic suspensive effect for a period of
five days in which the appeal has to be made
and during the examination by the ALC on the
merits of the case. If the appeal is made after the
initial five days, the appeal will also have suspensive effect if the applicant establishes an arguable claim under article 3 of the ECHR. The
appeal will have suspensive effect until the decision of the ALC.

40

3.2. Applications
for medical stay 9ter
by asylum applicants under
the Dublin procedure
In Belgium aliens can not only apply for refugee
status or subsidiary protection status, they can
also apply for a medical stay. The application for
a medical stay is based on article 9 of the Aliens
Law of 15 December 1980. It consists of two
phases; first a decision on the admissibility is
made and then on the merits.
The Aliens Office, department for Humanitarian
Regularisations (HR), is responsible for examining these applications. When an asylum applicant applies for a medical stay before receiving a
final (negative) decision in the asylum procedure
the Aliens Office cannot deliver an order to leave
the territory until it has taken a decision on the admissibility and, in cases where the application is
found to be admissible, a decision on the merits
of the application. As a consequence, in case an
asylum applicant under the Dublin procedure applies for a medical stay before he/she receives the
Dublin decision, the Aliens Office can take the decision to hold another Member State responsible,
but it cannot deliver an order to leave the territory
before it has taken a decision with regard to the
application for a medical stay.
The Aliens Office has informed us that the Dublin
Unit and the department for HR are trying to
coordinate their work on these cases so that
asylum applicants under the Dublin procedure
who applied for a medical stay only receive an order to leave the Belgian territory once they have
received a final decision with regard to their application for a medical stay. As a consequence,
the department for HR gives priority to the examination of the applications 9ter made by asylum applicants under the Dublin procedure.
According to statements made by the Dublin Unit
at the Aliens Office, Belgium will take up the examination of the asylum application once the application for a medical stay has been declared admissible and the applicant is found not to be fit to
travel to the other Member State. In cases where
the application for a medical stay is based on the
situation in the country of origin of the asylum applicant, the Belgian authorities will contact the authorities of the other Member State and discuss
the case. We have not been able to confirm the
statements of the Dublin Unit in practice. What
we have seen in practice is that the department
for HR is often not able to take a decision within
the Dublin delay of six months. These applicants
can present themselves at the Aliens Office where
their asylum application should be transferred to
the CGVS for examination on the merits.

DUBLIN TRANSNATIONAL PROJECT Final report

3.3. Applications for medical


stay 9ter in conjunction
with the right to reception and
the Dublin Convention
FRA has detected two problems with regard to
asylum applicants who have applied for a medical stay as well, and whose asylum application
has become the responsibility of the Belgian authorities under the Dublin Convention after the
delay of six months.
Asylum applicants who have received a decision stating that Belgium is not responsible under
the Dublin regulation for the examination of the
asylum application do not have the right to reception. The appeal against the decision does
not have automatic suspensive effect and for this
reason the Dublin decision is considered to be
the end of the asylum procedure in Belgium. The
application for a medical stay does not give the
right to prolong reception, except in very exceptional circumstances.
Thus, asylum applicants for whom Belgium has
decided not to be responsible under the Dublin
procedure and who are awaiting the outcome of
an application for medical stay are usually without
support until their application 9ter is considered
admissible. When their application is considered
admissible they can apply for financial support.
Considering that at this time they are no longer
receiving shelter, they do not receive proper follow up on their asylum procedure and most of the
applicants are not aware that they can re-present
themselves to the Aliens Office once the six
months have passed (most lawyers are not even
aware of the six months period and the date the
period expires). Due to the lack of information
about the provisions in the Dublin regulation asylum applicants sometimes only find out about
their right to have their asylum application examined in Belgium after a long time has passed.
The fact that their application for asylum is only
examined after a while does have a great impact
on their ability to tell their story or to have proof
sent over.
In FRAs project for individual housing a case like
this was encountered. A Chechen family was
considered to be a Dublin case under the responsibility of Poland. They received an order to
leave the territory for these reasons. Nonetheless,
afterwards they had also applied for a medical
stay 9ter. This application was however not
treated within the delay of six months for the Dublin transfer, and as a consequence the transfer
was not realized either. As a result of which their
asylum claim could in the end be transferred to
the CGVS to be examined on the merits. Nonetheless, the lawyer did not know this and failed to
inform the family of their rights. FRA discovered
this after one year; the familys case was finally
transferred to the CGVS and they received refugee status only a few months later.
DUBLIN TRANSNATIONAL PROJECT Final report

Recently FRA experienced that when asylum


applicants under the Dublin procedure present
themselves to the Aliens Office for the examination of their asylum application by the Belgian authorities, the Aliens Office considers it to be a second asylum application. Considering it to be a
second asylum application is not in line with the
Dublin regulation and is particularly important for
the right to reception keeping in mind that asylum
applicants who apply for asylum a third time do
not have the right to reception anymore. The
Aliens Office stated it was the responsibility of the
applicant to travel to the responsible Member
State and that they had not applied for an extended stay in Belgium (to await the outcome of
the application for a medical stay), since they failed to do this the application was considered to
be a second application. However, on another
occasion the Aliens Office stated it was considered a first application (in line with the Dublin regulation). FRA is in contact with the Aliens Office
to clear this up.

4. Recommendations
at national level
4.1. Conclusions
and recommendations
on the implementation
of the project;
I. The Dublin Project allowed FRA to take a closer look at the application of the Dublin regulation
in Belgium. Unfortunately, as said in the introduction, the Aliens Office is not very transparent
with regard to the application of the Dublin regulation. During the course of the project the Aliens
office showed great reluctance towards cooperating on the project. Toward the end the Aliens
Office showed more interest. Although this interest might be too late for the current Dublin project, FRA hopes to be able to keep close contact
with the Dublin Unit at the Aliens Office to get a
better picture on how the Dublin regulation is
applied in the future, especially with regard to minors, family members, the sovereignty clause
and the Humanitarian clause.
II. The development of the brochures on the different countries of the partners in the project was
regarded an asset and has been found useful
even by the Dublin Unit of the Aliens Office itself
and the personnel of the closed reception centres. Unfortunately, this has made clear that even
for the Belgian authorities; there is a lack of information about the asylum procedures and situation of asylum seekers in other European
countries. Given that these brochures and this information is very much needed, it is unfortunate
that it was not yet possible to spread the brochures in hardcopy and that there was not enough time in the project to promote the website
more vigorously.

41

III. Due to the problems FRA experienced in finding individual cases suitable for follow up, despite its efforts, it did not manage to complete the
second phase of the project. FRA also did not receive any individual cases from other partners in
the project. Maybe future projects should take
into account the restrictions for organizations
that are not sufficiently in direct contact with asylum applicants under the Dublin regulation, and
provide more means to compensate for the extra work load it takes to search directly for these
individual cases or to compensate partner organizations or persons who can do this individual
follow-up.

4.2. Conclusions
and recommendations
on the application of the
Dublin regulation;
I. FRA would recommend the asylum authorities, especially the Aliens Office, to provide more
information on the application of the Dublin regulation especially with regard to minors, family
members, the sovereignty clause and the Humanitarian clause. FRA calls on the Aliens Office
to provide more annual statistics on the implementation of the Dublin regulation.
II. From the decision by the ECtHR in the MSS
case FRA knows that the Dublin regulation is applied systematically and that the Aliens Office
hardly ever considers making an exception. The
Aliens Office should consider the situation of the
individual asylum applicant and should consider
applying the sovereignty clause more often. According to statements made by the Dublin Department of the Aliens Office they do apply the
clause, but in practice there is no clarity on the
number of cases and the reasons for application
of the clause.
III. It should be possible for the lawyer to be present at the interview with the Aliens Office concerning the application of the Dublin regulation or at
least to have a written report of this interview.
IV. The appeal against the Dublin procedure
should be considered to be part of the asylum
procedure and should have a suspensive effect,
therefore giving asylum applicants the right to
reception and protect them from being transferred before their claims are considered.

42

DUBLIN TRANSNATIONAL PROJECT Final report

Organizations: Forum rfugis


and France terre dasile
1. National context:
asylum law and the
Dublin procedure.
Field observations and
recent developments
1.1. The right to asylum in France
The asylum procedure in France is regulated by
part 7 of the CESEDA law governing the admission and residence of foreign nationals and the
right to asylum. Asylum law was codified as a result of the December 10 2003 law, amending
the July 25 1952 law. The clauses concerning the
social welfare measures applicable to asylum
seekers during their procedure were included in
the code of social action and families and in the
employment code.
In matters of immigration, France saw a period of
unprecedented legislative activity between 2003
and 2007, with 4 laws on this theme being adopted within the five year period. In April 2011, a
new immigration law was being debated by parliament.
The OFPRA (French office for the protection of refugees and stateless persons), a public institution
reporting to the Home Ministry, is responsible for
examining asylum applications in the first instance. The CNDA national court of asylum law,
the administrative jurisdiction, examines appeals
lodged against OFPRA rejections. There are two
asylum procedures in France, whose application
is determined by the temporary residence granted by the Prefecture. The so-called normal procedure is applied to asylum seekers admitted as
residents, while those not admitted as residents
are placed on the priory procedure. The priority
procedure offers less protection in terms of access to social rights and fewer guarantees regarding appeal examination by the CNDA. Refugee status and subsidiary protection are the two
main forms of international protection.
With 52,762 applications registered in 2010, asylum application increased for the third year running and France remains the first country of reception of asylum seekers in Europe. However,
with 10,340 people being granted a form of international protection (8,305 statutory refugees
DUBLIN TRANSNATIONAL PROJECT Final report

and 2,035 subsidiary protections), France is less


generous that other Member States, such as Germany or the UK. As in 2009, 70% of applications
were filed for the first time. 24% of all requests
were examined under the priority procedure.

1.2. Legal measures concerning


the Dublin Regulation
As community regulations, regulation 343/2003
dated February 18, 2003, and its application regulation 1560/2003 dated September 2, 2003,
are an integral part of the measures defining the
conditions of residence admissions and asylum
rights in France.
Furthermore, the CESEDA contains clauses related to application of the Dublin Regulation. Article L. 741-1 states that an asylum request from
another Member State under the Dublin Regulation justifies non-admission for residence. Articles
L. 531-2 and L. 531-3 state the terms of the
Prefectoral order for readmission to the responsible State.
Part II-1 of the circular dated April 22, 2005, in
application of the December 10 2003 law, describes the terms of application of the Dublin Regulation: systematic Eurodac fingerprinting of
asylum seekers, issue of a Dublin convocation,
request sent to the Member State, transfer organisation.
There are no legal clauses concerning the taking
charge of asylum seekers under the Dublin procedure. Since they are not admitted as residents,
they are not eligible for the principle social welfare
measures such as access to reception centres
for asylum seekers and the temporary support allowance of 10.67 euros per day. Furthermore,
many of them are not eligible for universal health
cover and have to wait three months before obtaining AME (state medical assistance). AME became payable in 2011, generating serious consequences in terms of healthcare access for asylum
seekers under the Dublin procedure or in the
priority procedure, who have no other social assistance and are not allowed to work.
Their social situation is therefore extremely tenuous although theoretically they may obtain
emergency accommodation under common law.

43

1.3. Strong heterogeneity


in practice
Regulations concerning application of the Dublin
regulation remain limited and in practice leave a
large margin of interpretation for the Prefectoral
services who must apply it. There are therefore significant differences in application depending on
the Prefecture.
In a certain number of Prefectures, asylum seekers under the Dublin procedure are issued with
a Dublin convocation. This document, mentioned in the circular dated April 22 2005 indicates
that the asylum seeker is under the Dublin procedure. It shows his/her identity, photo and the
date on which he/she must present himself/herself at the Prefecture. The asylum seeker is generally required to present himself/herself every
fortnight, sometimes once a month. There,
he/she is informed of the progression of his/her
procedure: acceptance from the requested State,
refusal of admission as a resident, notification of
a readmission order, arrest for readmission. Using
the same convocation, some Prefectures inform
the asylum seeker of acceptance from the requested country, serve the readmission order
and make the arrest with a view to placement in
an administrative detention centre and execution of the readmission order. Other Prefectures
work in stages, leaving the asylum seeker the
possibility of appealing against the readmission
decision.
In Paris, asylum seekers are no longer issued
with Dublin convocations and are no longer required to present themselves every 15 days. They
are informed by post of the response from the requested State, and if applicable, a readmission
order and a one-month laissez-passer is enclosed to enable them to make their own way to
the responsible State. If they are still in the country after this one-month period, they are summoned to the Prefecture once again and arrested
to enforce readmission. Recently, a similar procedure was introduced in the Provence-AlpesCte-DAzur region.
Major differences are also observed in matters of
enforcing readmission.

1.4. Recent changes in application


of the Dublin Regulation

29 - Source:
Home Ministry.

44

a) Social rights of asylum seekers under


the Dublin procedure
In 2009, the administrative judge recognised the
right of asylum seekers, including those under
the Dublin procedure, to benefit from decent reception conditions on the basis of Directive
2003/9/EC dated January 27, 2003, the Reception Directive. Faced with a lack of accommodation solutions, several hundred appeals have been
lodged with the administrative courts, which have

charged the Prefects to allocate accommodation


to asylum seekers. In the light of this jurisprudence, the Minister of Immigration reminded the
Prefects of their obligation to provide accommodation for asylum seekers under the Dublin procedure until notification of their readmission order
(circular dated December 18 2009). Nevertheless, respect of the Dublin asylum seekers right
to accommodation remains relative and it is often
necessary to refer the matter to a judge to obtain
accommodation. Furthermore, in Paris, numerous decisions charging the Prefect to provide
accommodation are not implemented.
b) Consequences of the MSS/v. Belgium
ruling dated January 21, 2011
After the MSS/v. Belgium case, the European
Court of Human Rights wrote to the Member
States on September 30 2010, inviting them to
suspend the enforcement of Dublin readmission
orders to Greece until a final decision had been
made. It stated that it would apply Article 39 of its
regulation for any cases of readmission to
Greece. In spite of the courts request, the French
authorities continued to arrest Dublin asylum seekers to have then readmitted to Greece. In the
light of this situation, the European Court of Human Rights has applied Article 39 every time a
case has been referred concerning an arrest for
enforcement of a Dublin readmission order to
Greece.
Subsequently, in the light of the consequences of
the European Court of Human Rights order dated
January 21, 2011, the Home Ministry informed
the associations in a letter dated February 28
2011, that France would be temporarily suspending Dublin readmissions to Greece and that it
would be applying the sovereignty clause.
Although the suspension of readmissions to
Greece was implemented rapidly, the asylum seekers concerned, particularly in Paris, experienced
difficulties in accessing the asylum procedure.
However, in April 2011, these difficulties seem to
be gradually being resolved.

1.5. Information on application


of the Dublin Regulation in France29
Application of the Dublin Regulation in France
concerns an increasing proportion of asylum
seekers. Indeed, the number of asylum seekers
under the Dublin procedure has increased by
81.7% in two years, from 2,941 asylum seekers
in 2007 to 4,026 in 2008 and 5,349 in 2009. The
number of asylum seekers under the Dublin procedure has therefore increased more than twice
as fast as the number of asylum applications. In
2009, 13.8% of asylum applicants were concerned by the Dublin regulation. In 2010, this figure
was stable: 5,396 asylum seekers under the
Dublin procedure, representing just 47 more
than in 2009.
DUBLIN TRANSNATIONAL PROJECT Final report

In 2010, among the 5,396 requests to another


State, 4,345 (81%) concerned a take back request. Take charge requests are mainly due to
the person crossing the national border or having
been issued with a residence permit or visa.
The number of transfers increased by 35% between 2008 and 2009, from 789 to 1,010. This is
however proportional to the increase in the number of requests. Finally, the rate of transfers enforced dropped from 44% in 2007 to 29% in 2008
and 2009. In 2010, there were 883 transfers.

Dublin II procedures - 2005/2010


YEAR

REQUESTS

ACCEPTED

REFUSED

UNDER
INSTRUCTION

TOTAL

TRANSFERS

EXTENDED
DEADLINE

2005

2934

2083

617

234

2934

655

2006

2647

1754

776

117

2647

849

2007

2 943

1843

849

140

2832

826

280

2008

4026

2641

783

617

4041

789

383

2009

5349

3430

1006

220

4656

1010

462

2010

5 396

3340

1130

2753

7223

883

891

Source : Ministry of Home Affairs and Immigration

Poland is by far the Member State the most solicited by France for application of the Dublin Regulation, with 1,305 requests in 2010. Next is
Greece (680), followed by Italy (661), Germany
(402) and Austria (328). However, the highest number of Dublin readmissions was actually made to
Germany in 2010 (152), followed by Italy (123), Poland (105) and Belgium (85). Poland is therefore
only in the third position, with an actual transfer
rate of 9.9%.

DUBLIN TRANSNATIONAL PROJECT Final report

45

Dublin II procedures by France 2010


REQUESTS

TOTAL

REJECTION

UNDER INSTRUCTION

TRANSFERS

EXTENDED
DEADLINE

TRANSFERS/
AGREEMENTS

Germany

402

233

22

255

95

114

152

49

59.6%

Austria

328

109

117

174

143

41

17

35.0%

Belgium

264

102

23

125

94

105

85

12

68.0%

Bulgaria

10

12

0.0%

Cyprus

27

12

16

13

17

18.8%

217

139

12

151

35

138

39

64

25.8%

Estonia

Finland

32

12

18

8.3%

Great Britain

246

53

15

68

123

95

40

58.8%

Greece

680

449

451

16

757

47

140

10.4%

Hungary

268

145

26

171

82

92

53

61

31.0%

Ireland

20

83.3%

Iceland

661

154

399

107

Lettonia

Lituania

36

18

Luxembourg

20

Malta

57

Norway

124

Holland
Poland

Denmark
Spain

Italy

245

100.0%

0.0%
486

123

122

30.8%

0.0%

27

28

14.8%

11

15

200.0%

31

35

36

8.6%

46

14

60

42

33

29

24

48.3%

161

70

73

65

51

30

10

41.1%

1,302

1,021

44

1,065

44

380

105

302

9.9%

Portugal

15

24

24

Czech Rep.

58

37

45

34

12

26.7%

Romania

25

15

16

25.0%

Slovakia

44

12

17

19

19

11.8%

Slovnia

29

10

14

20

19

14.3%

Sweden

142

68

76

53

60

30

36

39.5%

Switzerland

217

94

99

87

92

68

19

68.7%

5,396

2,397

943

3,340

1,130

2,753

8,83

891

26.4%

Total

46

EXPLICIT
IMPLICIT
ACCEPTANCE ACCEPTANCE

4.2%

DUBLIN TRANSNATIONAL PROJECT Final report

2. Assessment
of the project
implementation by the
partner organizations
2.1. Forum rfugis
Forum rfugis operates a reception platform for
asylum seekers in Lyon La Maison du rfugi and
a transit center. People under Dublin a procedure
can be assisted by these two structures. The
platform is a reception place for asylum seekers
newly arrived, asylum seekers, refugees who are
not supported in the national reception system
and rejected asylum seekers. The transit center
accomodates temporarily persons of any nationality, who express their intention to seek asylum,

regardless of the procedure, and pending their


admission to one of the centers for asylum seekers
(CADA) of France.
Forum rfugis also advises people under a Dublin
procedure placed in detention centers in Lyon,
Marseille and Nice. Since January 2010, teams of
Forum rfugis are permanently present in these
centers to assist asylum seekers.
Currently, it is difficult to give statistics for the detention centers. There is no specific database on
asylum seekers with a Dublin transfers decision.
The activity in detention centers is too large and
emergencies are too numerous to allow time for
teams to set up a database that would provide
sufficient detail to extract accurate statistics on
Dublin cases.

The statistics below are for the Plaform home and the transit center
from December 2009 to May 2011 :
CATEGORY

NUMBER

asylum seekers under the Dublin procedure assisted by your organization

200

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

200

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

200

Asylum seekers received from the partner

NB: The staff of the reception platform and the transit center conduct interviews with each asylum seeker under a Dublin procedure, during which they fulfill the individual file.

Forum rfugis had set up an individual followup form for asylum seekers under the Dublin procedure even before the beginning of the Transnational Dublin project. This form was systematically
completed by the Forum rfugis person responsible for the follow-up of asylum seekers under the
Dublin procedure. The form continues to be filled
in at the time of implementation of this project.
The individual follow-up form aims to collect the
main information on the applicants family situation,
his route within the EU, the stages of the Dublin
procedure, the formalities accomplished to request asylum in France or in one of the transit
countries, his medical situation, his family ties in
France and any other links to France.
Asylum seekers can obtain personalised advice
during legal consultations proposed by the Maison
du Rfugi. 80 new Dublin files (i.e. the number of
adults) were opened in 2010. 303 adults under the
DUBLIN TRANSNATIONAL PROJECT Final report

Dublin procedure had an advisory interview. This


advice service provides answers to questions on
legal, administrative and social topics in relation to
the various statuses of asylum seekers.
An information desk is devoted to the follow-up of
people under the Dublin procedure, offering full
diagnosis of their legal situation and recommendation of a lawyer if necessary. Additional human
resources were granted to the Maison du Rfugi
(internal back-up, temporary recruitment) to meet
these extra needs. A reference person was recruited specifically for this purpose on a part-time
basis for a fixed duration. This position contributed
largely to the overall implementation of the Transnational Dublin Project within the Maison du Rfugi. Due to the lack of financial resources this position was not maintained. Since January 2011,
Dublin activities have been severely limited. An
employee of the reception platform continues to
maintain the permanence, however, they are only

47

onsite half a day every two weeks. Within such a


short period of time it is difficult to conduct a thorough interview and even more difficult to fill in the
individual follow-up form or create effective
contacts with network partners. The absense of an
interpreter during the interview renders the situation even more complex.
The follow-up is more thorough for asylum seekers
under a Dublin procedure who are at the transit
center. The staff have the opportunity to interview
asylum seekers housed at the center in length, in
the presence of an interpreter when necessary
and on a regular basis if necessary.
Although the transit center did not house anyone
under a Dublin convocation upon arrival in the
center in 2006, 2007 or 2008, they later began accepting people, taking in 33 people in 2009 and 30
people in 2010. Concerning the administrative situation of the applicants when they left the transit

center, the figures are as follows: there were 64 in


2006, 82 in 2007, 99 in 2008, 24 in 2009 and 25
in 2010.
The DNA (national reception system) in the Rhne
area being saturated, Forum rfugis opened a
temporary accommodation system, called SAS
Lamartine in response to a request from the local
authorities. This structure, which opened in June
2010, receives asylum seekers under the Dublin
procedure and on the priority procedure. In 2010,
the SAS received 21 people under a Dublin convocation. Of a total of 30 departures in 2010, 17 were
Dublin readmissions.
The transit centre saw a slight increase in 2010 in
the reception of people under the Dublin procedure compared with 2009. Reminder: these people remain ineligible for the national reception system.

Dublin procedures in 2006-2010


NUMBER OF PEOPLE

2006

2007

2008

2009

2010

Present on 31/12 with no response*

45

13

Admitted as residents to request asylum


in France

27

38

40

18

39

Notification of return to the European


country responsible for the asylum
request

15

22

78 (inc.
27 actual
departures)

15

16 ( inc.
7 actual
departures)

Disappearance/failure

15

28

13

Admitted to request asylum in France


on the priority procedure

100

88

159

55

73

TOTAL

* These are people who entered the transit centre under the Dublin procedure during the year and who were still waiting for a response on 31/12.

48

DUBLIN TRANSNATIONAL PROJECT Final report

2.2. France terre dasile


a) Implementation conditions:
Within France terre dasile, there are 4 structures
playing a full role in the transnational Dublin project. They are the reception platforms for asylum
seekers located in Crteil, Caen and Rouen, and
the SASA-Kiosque. SASA is the Paris reception
platform for isolated asylum seekers. It is associated with the Kiosque which provides legal assistance for asylum seekers under the Dublin
procedure.
On average, in all of these structures, France terre
dasile receives 25 new asylum seekers under
the Dublin procedure every month. In principle,
they all have an individual interview during which
an agent explains the reasons for their placement
under the Dublin procedure and the consequences of this situation, particularly in terms of
access to the asylum procedure and social rights.
Personal administrative follow-up is provided
throughout the stages of the Dublin procedure
(placement under the Dublin procedure, determination of the responsible State, readmission procedure, extension of the transfer deadline or access to the asylum procedure in France). The
individual follow-up form was definitively included in France terre dasiles internal procedures on September 15, 2010. A meeting
was held on September 7 2010 with the departments concerned to present the form and
the European network partners that can be
contacted in the event of readmission. The instructions for using the tools developed by
the project were explained in an internal pro-

cedure memo which was distributed on the


same day. This memo also contained a summary
table showing the various actions to be undertaken at each stage of the Dublin procedure.
The main purpose of the individual form is to ensure the continuity of follow-up by a partner in the
European network in the event of readmission.
Firstly, it enables easy transmission of information
to identify the asylum seeker, which helps the
partner to implement the best kind of follow-up as
quickly as possible. Secondly, it materialises this
continuity, thereby reinforcing its efficiency.
If there is a risk of readmission (e.g.: acceptance
from the requested country, readmission order,
convocation with a risk of readmission) and there
is a network partner in the responsible State, the
asylum seeker is informed of the possibility of
using the European network and obtaining support from a partner in the event of readmission.
If he accepts, a follow-up sheet is filled in and
emailed to the relevant partner.
This contact enables the practical details of the
asylum seekers reception to be organised by
the network partner, within the limits of its capabilities. The Romanian partner has informed us
that it will be able to meet has any readmitted
asylum seekers at the airport in the event of a
problem. In January 2011, after transmission of
a follow-up sheet, we agreed with the CIR that
the Arciconfraternitat association, present at Fiumicino airport in Rome, would be informed of
any readmissions. Arciconfraternitat can thus
guide asylum seekers in the project from the airport to the CIR office.

CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization

170

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

170

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

110

Asylum seekers received from the partner

b) Analysis of cases of asylum seekers


assisted by France terre dasile
Prior to January 2011, no sheets were transmitted to the project partners for a number of reasons. The first was the small number of readmissions concerning asylum seekers assisted by
DUBLIN TRANSNATIONAL PROJECT Final report

the reception platforms of France terre dasile:


between September and the end of December
2010, there were only 5 readmissions.
Secondly, feedback has revealed that some asylum seekers declined to join the project as they
rejected the very idea of readmission. Others

49

needed specific information on how readmission


actually worked, the asylum procedure and
conditions of reception in the destination country.
However, at this stage, the information brochures
produced by the project had not yet been finalised and were not ready for distribution.
The distribution of information brochures began
in January 2011 and their availability on the
www.dublin-project.eu website seems to have
had a positive effect on how the project is perceived by asylum seekers. France terre dasile
has observed a non-negligible link between prior
information and acceptance of the proposed follow-up by asylum seekers.
Obviously, there will be a period of adaptation for
the social workers involved to adopt this tool. Regular support from the project coordinator for local teams has been necessary. The availability of
the information brochures is also a positive element in this sense. Social workers see them as
being tools that facilitate their task of informing
asylum seekers, which also makes the proposal
to join the project more automatic.

Since January 2011, several asylum seekers


have been oriented to other partners.
A first orientation via the follow-up sheet was
sent to the CIR in Italy for a person who had received the information brochure in English and
been placed in a detention centre prior to enforcing readmission to Italy. The practical conditions of his arrival were organised with the CIR
but in the end, the administrative judge cancelled
the readmission decision.
A second orientation was sent to CEAR in
Spain. It concerned an Ivorian who had a residence permit in Spain but wanted to request
asylum in France. He had left Spain because of
the extreme lack of stability of his situation, and
a lack of housing in particular.
After making contact with CEAR, the applicant
obtained the guarantee of an interview with a
social worker upon his return to Madrid. He ultimately refused to return to Spain, preferring to
start the asylum application procedure in France,
in spite of the extreme likelihood of being placed
under the Dublin procedure and the risk of losing
his Spanish residence permit.
In February 2011, an Afghan asylum seeker under a readmission order to Denmark accepted to
join the project. The Danish Refugee Council is a
non-funded partner of the project; it produced the
information brochure but does not contribute to
the operational phase in the event of readmission
to Denmark. The information brochure was given
to the applicant, along with the contact details of
various associations. The Danish Refugee Council was also informed of his arrival and confirmed

50

that the asylum seeker could contact its legal


experts if he had any problems at the airport.
In April 2011, the individual follow-up sheet of
a Tunisian asylum seeker was sent to CIR in
Italy. This case reveals the importance of the information brochures. This person had received
assistance from France terre dasile in a detention centre. In general, detained asylum seekers,
in view of the urgency of their situation, refuse to
join the project and just want help to appeal
against the readmission decision. However, in
this case, the information brochure about Italy
reassured the asylum seeker of the possibilities
of being able to continue his asylum application
in Italy.

c) Analysis of the cases of asylum


seekers readmitted to France and oriented
towards France terre dasile
France terre dasile has received 3 orientations
from the projects partners: 2 from the Austrian
NGO, Asyl In Not, and 1 from a partner association of the Dutch Refugee Council in the Netherlands.
The first orientation came in May 2010 from
Asyl In Not in Austria. The individual follow-up
sheet was sent, but the asylum seeker, who was
coming to France by himself, did not come to the
France terre dasile office. As far as we are aware,
he has not made further contact with Asyl In Not.
In June 2010, a second orientation was received: an Ivorian asylum seeker. She was oriented
by an association with no direct link to the project, so there was no individual follow-up sheet.
The relevant information concerning the state of
health of the person was passed on by telephone. France terre dasile has no offices in the
department where the person lodged her application, so we contacted the director of the local
asylum seeker reception platform to inform him of
the arriving applicants state of health and need
for accommodation. We also had direct contact
with the applicant and sent her to the emergency
accommodation centre, which was the only solution available.
A third orientation was sent in August 2010 by
Asyl In Not concerning a Russian asylum seeker
placed under the Dublin procedure in Austria and
for whom France had been designated as the
responsible State. This person required assistance for readmission to Austria since part of his
family were refugees in Austria. Being in Strasbourg, France terre dasile contacted the Strasbourg reception platform which found his file.
They made an appointment with the applicant to
examine the possibilities of his readmission to
Austria together.

DUBLIN TRANSNATIONAL PROJECT Final report

The number of orientations received by France terre dasile from partners and the number of orientations made by France terre dasile towards other partners does not enable any real conclusions
to be made. This phase of the project, which fulfils a real need, deserves observation over a longer period of time to enable all its effects to be measured.

3. Analysis
of the application
of the Dublin procedure
at national level
(Case studies)
Observations made during implementation of the
transnational Dublin project enabled the identification of a certain number of problems posed by
the implementation of the Dublin Regulation in
France.

Access to the asylum procedure


by asylum seekers not readmitted
within the legal deadlines
The number of readmissions actually taking place
over the period compared with the number of
asylum seekers placed under the Dublin procedure is low. We do not yet have the national figures for 2010, but the trend observed seems similar to that of 2009, when only 20% of asylum
seekers under the Dublin procedure were actually readmitted. While some of these non-readmissions are due to abscondment, this is not
true for many asylum seekers, and under the Dublin Regulation, they should then be able to have
their asylum application examined in France.
However, these people are faced with major difficulties in terms of access to the asylum procedure in France. Access to the asylum procedure
is often refused when they go to the Prefecture
and their transfer deadlines is therefore extended
de facto. In general, no written decision concerning this deadline transfer is provided; at best,
they are informed orally. It is therefore difficult to
contest the situation before an administrative
judge. Consequently, some families in Crteil
have been waiting for temporary admission for
asylum for more than a year.
One of the objectives of the Dublin regulation
was to ensure the examination of each asylum
seekers application by a Member State. The recurrent difficulties observed by France terre
dasile concerning access to the asylum procedure in France in cases of non-readmission within
the deadlines are contrary to this objective and
deprive certain applicants of the asylum procedure for abnormally long periods of time.

DUBLIN TRANSNATIONAL PROJECT Final report

Absence of effective
remedy against readmission measures
With the MSS/ v. Belgium ruling, the European
Court of Human Rights recognised that enforcing
a readmission measure in application of the Dublin Regulation could represent violation of the
European Convention on Human Rights (ECHR).
Thus, and in compliance with Article 13 of the
ECHR, Dublin readmission measures must be
associated with access to effective remedy. In
particular, the right to effective remedy includes
the right to an automatically suspensive appeal.
However, in France, there is no suspensive appeal against Dublin readmission orders. This legal gap has serious consequences in terms of jurisdictional guarantees. Asylum seekers are
unfairly readmitted before a judge can make decision on their appeal. This was the case of Mr.
MJ, who was notified of his readmission order on
June 2, 2010, even though France should have
been designated as the responsible State after
expiry of his transfer deadline. An appeal was lodged on June 4, 2010. On the following day, the
administrative judge ruled in favour of the asylum
seeker, cancelling the readmission decision and
charging the Prefect to admit him as a resident,
but it was too late because the applicant had already been returned to Greece. This risk increases
with the practices in certain Prefectures
which seriously hinder, and even prevent,
the lodging of an appeal against a readmission
decision. In several Prefectures, the person is arrested and placed in a CRA at the same time as
he is notified of the readmission order. In these
conditions, it is extremely complicated for the
asylum seeker to lodge an appeal.
On the strength of the consequences of the
MSS/ v. Belgium ruling, the Senate introduced a
suspensive appeal against Dublin readmission
measures in the new draft immigration law, but
unfortunately, this amendment was withdrawn
by the members of parliament.

Absence of a referral deadline


for take back situations
The absence of a referral deadline for requesting
the responsibility of the State assumed to be responsible for examining an asylum application in
take back situations can have serious consequences on the duration of the procedure. This
legal loophole can extend the procedure of determining the responsible State and delay access to the asylum procedure unnecessarily.

51

Since there is no legal deadline, referral to the responsible State can take several months. Although
there is no real recurrent abuse, certain situations
reveal the problems related to this legal void. Mr.
A lodged an asylum application on March 17,
2009. He was placed under a Dublin convocation
on July 1st 2009, but France only referred the
case to the Italian authorities on December 18,
2009, i.e. 9 months after his application was first
registered.

Unaccompanied foreign minors

4. 4. Recommendations
at national level

The access of asylum seekers under the Dublin


procedure to healthcare was already difficult and
has become critical since the recent reform of
the AME state medical assistance scheme. By
setting a payable subscription for people with no
income, no allowance and who are not allowed
to work, the French authorities have effectively
eradicated healthcare for a segment of the population, generating fears of dramatic consequences in matters of health. It is urgent that the
French authorities rectify this situation and offer
asylum seekers under the Dublin procedure free
and effective access to healthcare. Allowing all
Dublin asylum seekers, like other asylum seekers, access to the CMU universal health cover,
appears to be the most appropriate solution to
this problem.

Recommendations on application
of the Dublin regulation:

Right to a suspensive appeal: to comply


with the obligations resulting from the European
Convention on Human Rights, it is urgent that
France introduces a suspensive appeal again
Dublin readmission measures into its national legislation. France terre dasile deplores the withdrawal of an amendment that would do just this
from the draft law on immigration integration and
asylum. This essential jurisdictional guarantee
would benefit both asylum seekers and implementation of the Dublin Regulation, which would
be less often perceived as an unfair regulation.

In application of the Dublin regulation, France


does not deport unaccompanied underage asylum seekers who have registered an application
in another Member State before arriving in
France. This is an informal practice but one that
was recognised by the Ministry of Immigration in
an official statement in 2010. This practice is still
applied today. Taking into account the inherent
vulnerability of unaccompanied foreign minors to
avoid their transfer to another Member State,
this is a good practice liable to inspire the review
of the Dublin Regulation and other Member
States.

Social rights of asylum seekers and access to healthcare: the circular dated December 18 2009 represents a first step towards
the provision of decent reception conditions for
asylum seekers under the Dublin procedure. However, many such people remain without accommodation in practice. To resolve this situation
and ensure compliance with the Reception directive of January 27, 2003, France terre dasile
proposes to create reception systems for asylum
seekers under the Dublin procedure. These systems would include accommodation and administrative, legal and social assistance suited to the
needs of this population, particularly in terms of
their administrative situation. Furthermore, and
again with regard to the Reception directive,
asylum seekers under the Dublin procedure, like
other asylum seekers, should be eligible for the
temporary support allowance.

52

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Hungarian Helsinki


Committee
1. National context:
legislation on asylum
and Dublin. Field
observations and recent
developments
The authority in charge of asylum is the Office for
Immigration and Nationality, OIN (Bevndorlsi s
llampolgrsgi Hivatal, BH), which falls under
the Ministry of Interior. Asylum procedure is regulated in the Act LXXX of 2007 on Asylum (hereinafter referred to as the Asylum Act). The Dublin
Regulation is also implemented in this Act. In Hungary, there are no formal requirements to seek
asylum. An asylum application is valid both in written and oral form and in any language at any public administration body. If the asylum seeker submits the application at another authority it is
obliged to register the fact of the submission in its
minutes and forward it without delay to the Office
of Immigration and Nationality. The OIN is then
obliged to start the procedure and duly inform the
asylum seekers on his/her rights and obligation
during the procedure in the applicants mother
tongue or in another language which the person
understands.
The Hungarian asylum procedure has two parts:
admissibility procedure and in-merit procedure. In
admissibility procedures the OIN examines whether:
- the Dublin procedure is applicable,
- the asylum seeker is a citizen of an EU Member
State,
- the asylum seeker has already been recognized
as a refugee by another country
- a safe third country procedure applies
- the application is manifestly ill-founded
- the applicants country of origin cannot be established because of he/she is acting in bad faith
- the applicant did not ask for protection within a
reasonable time, even though he/she had the
opportunity to do so.
If the OIN decides that asylum application is inadmissible, the asylum seeker has a right to appeal
to the relevant regional court within three days. If
the application is admitted to the in-merit procedure, the OIN decides on the merits of the case
and can either reject the application or grant one
of the following protection statuses: refugee status,
DUBLIN TRANSNATIONAL PROJECT Final report

subsidiary protection or tolerated status (a protection status based on a general but not individualized risk of harm in the country of origin).
The applicant has a right to request the judicial review of the decision within 15 days. The court will
conduct the hearing and decide either to reject the
appeal, to annul the OINs decision and order the
new procedure or to grant one of the protection
statuses.

1.1. Recent changes


in legislation
The government amended several aspects of the
asylum and immigration legislation and the new regulatory framework entered into force on 24 December 2010. These amendments in many ways
lower key standards regarding the right to asylum
and alien policing detention:
manifestly unfounded asylum claims can now be
rejected at the preliminary assessment phase of
the asylum procedure (resulting in a significantly
larger discretion for authorities to reject asylum
claims without any in-merit assessment and
with limited possibilities of seeking legal remedy
against such decisions);
the maximum period of alien policing detention
increased from 6 months to 12 months;
the so far exclusive competence of the Metropolitan Court (a centralised judicial body in Budapest) in dealing with asylum appeal cases
ceased and this task has been delegated to a
number of county courts without any experience
and professional capacities in this field;
the basis for detention of asylum seekers under
a Dublin procedure, in order to secure their deportation, is now included in the law;
asylum-seekers may be lawfully detained for
the entire asylum procedure (both administrative
and judicial review), resulting in routine-like detention for the majority of those seeking international protection;
families with children can now be held in immigration detention for a maximum period of 30
days (a time period usually insufficient to carry
out deportation measures and therefore resulting in unfounded and unreasonable detention);
subsequent asylum applications lost the suspensive effect and are no longer free of charge,
the right to accommodation during the subsequent asylum procedure is also limited.

53

Even before the changes in legislation occurred,


the Hungarian Helsinki Committee noticed a major shift in the practice from a moderate detention
policy, where the vast majority of asylum seekers
were accommodated in open reception centres, to
a very restrictive one, where almost everyone apprehended while illegally in Hungary is detained, including many asylum seekers. According to the
HHCs knowledge, the Office of Immigration and
Nationality and the National Police Headquarters
issued a joint instruction in March 2010 ordering
that all irregular migrants should be detained regardless of their wish to seek asylum in Hungary.

1.2. Dublin procedure


The examination of whether a Dublin procedure
should start is part of the admissibility procedure.
If a Dublin procedure is initiated, the admissibility
procedure is suspended until a Dublin decision determining the responsible country for examining
the asylum claim is issued. Once the Immigration
Office issues a Dublin decision, an asylum seeker
can no longer withdraw his asylum application.
An asylum seeker has the right to start a judicial review of a Dublin decision within 3 days, before a
regional court, depending on the place of his/her
accommodation. There is no oral hearing and the
appeal has no suspensive effect. An asylum seeker has the right to ask the court to suspend
his/her transfer, however this request also does not
have a suspensive effect. In its decision, the Court
is entitled to change the decision of the OIN or to
order the OIN to conduct a new procedure if the
original decision or procedure was not in line with
the Dublin Regulation.
The OIN rarely applies the humanitarian clause
and cases of especially vulnerable asylum-seeking separated children led to the application of
the sovereignty clause on very few occasions. In
2010, Hungary was one of the five EU Member
States sending the most asylum seekers to
Greece, despite some national court decisions
that held that a transfer to Greece would violate Article 3 of the European Convention on Human
Rights. Finally, after the ECtHR judgment M.S.S. v.
Belgium and Greece, the Hungarian Minister of the
Interior announced that Hungary would no longer
send asylum seekers to Greece.

1.3. Detention
What the law does not spell out specifically, but
happens in practice is that every illegal foreigner
apprehended (or even those that report themselves to the police after entering Hungary illegally) is primarily treated as an illegal migrant in an
alien policing procedure. Before registering asylum
applications the Police issue an expulsion order
and a re-entry ban against the foreigner (for a du-

54

ration of between one and ten years) based on a


short interview only focusing on immigration and
human trafficking questions but without any focus
on asylum and a need for international protection.
Under Hungarian law, an expulsion order cannot
be issued without examination of the principle of
non-refoulement, however, this examination is in
practice only a formality and is clearly inefficient.
The Police, in compliance with their legal obligations, usually ask the Office of Immigration and
Nationality (OIN) for their country of origin information assessment. The OIN officer on duty gives
his opinion on the non-refoulement principle based on the minutes of the preliminary interview
with the foreigner, which is conducted by a police
officer. The HHCs experience shows that the
country information assessment carried out by
the OIN and its conclusions are often too short,
and fail to provide sufficient time and space for an
exhaustive assessment of the specific circumstances of the case. Therefore expulsion orders
and the deprivation of liberty are based on insufficient information which fails to duly consider
eventual protection needs.
Although there is no written policy on whom to detain and whom not, the HHCs observations show
that a significant proportion of asylum-seekers
and most irregular migrants are routinely detained,
with the exception of unaccompanied minors and
those coming from the country which OIN deems
prima facie inadequate for return (regardless of individual circumstances of the case) based on nonrefoulement grounds and therefore refrains from issuing an expulsion order (e.g. Somalia).
The law states that detention should cease immediately if it becomes evident that an expulsion
order cannot be carried out. Unfortunately, in practice this rarely happens. Irregular migrants (including asylum seekers) are usually detained for the
maximum period of time. Alien policing detention
is to be reviewed and can only be prolonged by a
local court (every 30 days). However, this remains
a mere formality. Local courts issue basically identical decisions in all cases, the reasoning of which
is short and laconic, lacking proper fact assessment and individualisation. The HHCs long-standing experience shows that unlike in most European states the extension of alien policing
detention is automatic in Hungary. Not a single
case has occurred in the last several years where
a court has terminated the detention with reference to, for example, the impossibility of carrying
out an expulsion measure, even if the person was
later granted asylum by the OIN.
Before the new legislation entered into force, there
was no legal basis for detention of asylum seekers
for the entirety of the Dublin procedure, which can
last for several months. However, they were de
facto detained in Bkscsaba in a closed reception centre, protected by guards and barbed wire.
According to the new legislation, asylum seekers
DUBLIN TRANSNATIONAL PROJECT Final report

under a Dublin procedure will remain detained if


they were first subjected to the alien policy procedure, during which detention was ordered. If they
were not detained at the beginning, the Asylum
Act allows detention of asylum seekers for 72
hours prior to being transferred to another country on Dublin grounds.
According to Hungarian legislation unaccompanied minors should not be detained, but instead
should be accommodated in an open shelter. However, on several occasions during its detention
monitoring visits the HHC has witnessed unaccompanied minors detained in the immigration
jails. After checking their files, it was noted that a
doctor had assessed their age. The HHC was
told by several asylum seekers that the doctor
determined their age only by looking at their torsos. The way age assessment is carried out in
Hungary is highly problematic.
Other vulnerable groups are in general not excluded from detention. Pregnant, elderly, physically or
mentally disabled asylum seekers may be detained
along with everyone else. While in detention, these
individuals special needs will not be sufficiently addressed. Psycho-social care is not yet available in
immigration jails in Hungary.

not considered as prima facie inadequate for return, will be first issued an expulsion order. A subsequent asylum procedure is also no longer free of
charge and asylum seekers might no longer have
certain rights regarding accommodation and support. This practice is of serious concern, because
it might result in the deportation of asylum seekers
who have never had their asylum application examined on the merit.

1.5. Statistics for 2009


and 2010
Number of asylum applications submitted

2009

4 672

2010

2 104

It can be deducted from the statistics above that


there was a significant decrease of asylum applications in 2010. The decrease might be explained
by the change of immigration policies: namely the
increased use of immigration detention.
Breakdown of the countries of origin
of asylum seekers (top 6)

1.4. Asylum seekers


returned under Dublin
procedure to Hungary
The authority who takes care of Dublin returnees
upon arrival is the alien policing department of the
Office of Immigration and Nationality. The OIN
does not consider persons returned under Dublin
as being asylum seekers automatically. In practice
the alien police first start with an alien policing
procedure (and issue an expulsion order) and only
after this, the OIN registers asylum application.
As a result, a person may be detained for the purpose of expulsion which can last for the entire
duration of the asylum procedure, but for a maximum of 12 months.
According to the amended Asylum Act, the subsequent asylum applications have no suspensive
effect on the execution of the expulsion, if the
Hungarian authority or court in its latest decision
decided that the prohibition of refoulement was not
applicable. This is particularly relevant for persons
returned under Dublin whose asylum procedure
was closed or discontinued once they left Hungary
(closed without a decision on the merit of the
claim). If they are issued an expulsion order when
they are returned to Hungary, this means that their
subsequent asylum procedure will not prevent the
authorities from deporting the person. Taking into
consideration the above described practice of immediate issuance of an expulsion order, it is highly
likely that an asylum seeker returned under a Dublin procedure, coming from the country which is
DUBLIN TRANSNATIONAL PROJECT Final report

2009
Kosovo

2010
1786

Afghanistan

702

Afghanistan 1194

Kosovo

379

Serbia

536

Gaza, West Bank


(Palestinians)
225

Georgia

116

Georgia

68

Turkey

114

Serbia

67

Somalia

75

Iran

62

In 2009, the OIN recognized 172 applicants as refugees, 62 as beneficiaries of subsidiary protection
and 155 were given tolerated status. In 2010, 74
persons were granted refugee status, the OIN
granted subsidiary protection to 115 persons,
while 58 persons were given tolerated status on
the basis of the risk of refoulement. With regard to
the nationality of persons granted international
protection of the three categories above, most of
them were Somalis, Iraqis, Afghans, Palestinians
and Iranians.

55

Request to take charge or take back asylum applicants received by Hungary

2009

2010

Number of request to take charge or take back asylum applicants


received by Hungary

2 481

1 972

Positive answers from Hungarian authorities

1 561

1 480

Negative answers from Hungarian authorities

556

445

Dublin transfers to Hungary

934

742

Most frequent countries of origin of the asylum seekers successfully transferred to Hungary:

Country of nationality of the asylum seeker

Successful transfers
en 2009

Successful transfers
en 2010

Kosovo

409

43,79%

218

29,38%

Serbia

182

19,49%

79

10,65%

Afghanistan

110

11,78%

217

29,25%

40

4,28%

52

7,01%

Georgia

The most frequent transferring countries:

Requesting country

Successful transfers
en 2009

Successful transfers
en 2010

Germany

261

198

France

229

100

Austria

159

194

Request to take charge or take back asylum applicants sent by Hungary

2009

2010

Positive answers

512

391

Negative answers

53

45

Dublin transfers from Hungary to the responsible country

84

117

The most frequent responsible countries:

Requested country

56

Successful transfers
en 2009

Successful transfers
en 2010

Greece

16

19,5%

120

67,80%

Romania

15

17,86%

20

11,30%

Austria

13

15,48%

1,13%

Poland

9,52%

1,69%

Italy

9,52%

2,26%

DUBLIN TRANSNATIONAL PROJECT Final report

Percentage of transfers effectively made compared to the number of requested transfers:

2009

2010

Incoming requests

37,65%

37,63%

Outgoing requests

13,61%

26,23%

2. Assessment of the project implementation


by the partner organization
CATEGORY

NUMBER

asylum seekers under the Dublin procedure assisted by your organization

around 150, amongst which there


were around 50 cases represented before
the OIN or courts

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

around 144

Asylum seekers received from the partner

The reason for such a low number of follow up


cases is that almost all asylum seekers under Dublin procedure are detained and therefore they
cannot come to our office for help. Even though
HHCs attorneys visit immigration jails once a
week, their main activity is legal counseling. Unfortunately they do not have capacity to perform
detailed interviews with asylum seekers in order
to fill in the follow up sheets designed in this pro-

ject, because there are many asylum seekers


that request their legal assistance. Anytime
HHCs focal point in this project visited a detention facility, she did not meet many asylum seekers who would be in a Dublin procedure, waiting
to be transferred to another EU country, but only
those who were transferred back to Hungary;
therefore she could not fill in many follow up
sheets.

3. Analysis of the
application of Dublin
at the national level
(Case studies)

- An Afghan family with three children and a minor brother of the husband was apprehended at
the airport, possessing false passports. One of
the children was seriously ill. The parents and the
minor brother were put in pre-trial detention and
the three children sent to foster care. Once it
was established that the minor brother actually is
a minor he was released, but the parents remained in custody.

Through legal counseling provided to asylum seekers during this project, the HHC identified the
following main issues related to the application of
the Dublin Regulation:

3.1. Return to Greece


under Dublin procedure:
Before the ECtHR issued a decision in the M.S.S.
case, Hungarian authorities continued returning
asylum seekers to Greece (120 returns in 2010).
Only minors were exempted from return since
April 2009.
DUBLIN TRANSNATIONAL PROJECT Final report

The UNHCR and the HHC intervened and finally


they were released. The family had Dublin hits
from Greece, but not the minor brother. The
HHC lawyer appealed against their return to
Greece, arguing among other things that by sending a family to Greece, the minor brother would
become an unaccompanied minor. The Court
unfortunately dismissed the appeal and the family would have been transferred to Greece, if
they had not escaped.

57

- An Afghan minor arrived in Greece in 2007. Although he asked for asylum, he did not receive
any social or legal assistance and he was forced
to live on the street in inhumane conditions. He
was arrested and detained in Athens and elsewhere in overcrowded and dirty jails on several
occasions. The police harassed him and beat
him several times. He became infected with Hepatitis-B because of the lack of proper accommodation, adequate hygienic conditions and medical assistance, but was not given any medical
treatment in Greece. In late 2009, the Afghan
boy arrived in Hungary and applied for asylum.
The Hungarian Immigration authority decided to
apply the Dublin Regulation and ordered his return to Greece. The Hungarian Helsinki Committee, representing the Afghan minor, requested
an urgent interim measure from the European
Court of Human Rights to suspend the transfer to
Greece. The ECtHR granted the interim measure
and the OIN decided not to enforce the transfer
to Greece and to examine his asylum application
on the merits.
- There were several positive judicial review
cases, where the court ordered the asylum applications to be examined in Hungary instead of
Greece, basing its reasoning on the risk of violation of Article 3 of ECHR should asylum seekers
would be returned to Greece. Despite those positive cases, the OIN continued to send asylum
seekers back to Greece, until the M.S.S. judgment.

3.2. Shortcomings
in the application of the Dublin
regulation:
- An Afghan asylum seeker was transferred under
the Dublin procedure from Austria to Hungary.
Even though Hungary accepted responsibility for
this asylum seeker, the authorities started a new
Dublin procedure, because he had fingerprints
from Greece. He escaped back to Austria, but
unfortunately the appeal against his transfer to
Hungary was rejected. The Austrian NGO asked
the UNHCR for help, which asked the Hungarian
authorities for explanation. The authorities replied
that the Dublin Unit made a mistake by starting
another Dublin procedure, so the asylum seekers
case was now referred to the in-merit procedure.
But since he escaped back to Austria his case
was closed. The asylum seeker decided to leave
the EU for 6 months and then he returned back
to Austria, where he was finally admitted to the inmerit procedure. This case is a good example of
joint collaboration between the HHC and Asyl in
not, which was made possible with this project.

The men then asked for asylum, but since he had


fingerprints from Greece, the authorities started
the Dublin procedure. HHC lawyer asked for judicial review, claiming that the Article 9 (1) of the
Dublin Regulation which states that "where the
asylum seeker is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for asylum" should apply
and that this criteria applies before the criteria of
fingerprints in the first EU country. The Bkscsaba reception centre (where he was accommodated) was closed for renovation and everyone placed there received a humanitarian
residence permit and a train ticket to the open refugee camp in Debrecen. However, this person
never arrived in Debrecen.

3.3. No suspensive
effect of appeal against
a Dublin decision:
- One minor Afghan had a Dublin hit in the UK. He
appealed against the Dublin decision, stating that
the UK would send him back to Afghanistan and
that he could not attend school there. The OIN in
its response to the appeal said that education issues are not relevant, but they did not mention
that a minor does not want to return because he
is afraid to be sent back to Afghanistan. Since
there in no suspensive effect the minor was sent
back to the UK before the Court decided about
his case. The HHC later received information that
the UK deported him back to Afghanistan.
- An Afghan family received a Dublin decision to
be transferred to Greece within 4 days. In such a
short period is impossible to expect that the
Court would decide on suspensive effect of the
transfer, besides the HHC lawyer could not even
start the proceedings before the Court, since the
OIN did not yet send all the necessary documents. When the HHC lawyer asked the OIN to
wait with the transfer until the Court decides on
suspensive effect, OIN replied that the request for
suspensive effect does not have a suspensive effect. The HHC lawyer tried to intervene at the
Court to ask whether they can adopt the decision
quickly, but since the responsible judge was on
leave they could not hasten the procedure. In the
end the UNHCR intervened, request the OIN to
wait with the transfer, invoking the arguments
concerning the situation in Greece. The HHC lawyer was unofficially informed that the OIN will
wait with the transfer until the Court decides.

- An Ethiopian man arrived in Hungary, but did


not ask for asylum. The police granted him tolerated status, because his return to Ethiopia would
be in breach of the non-refoulement principle.

58

DUBLIN TRANSNATIONAL PROJECT Final report

3.4. Unaccompanied
asylum seekers
- The HHC was contacted by several NGOs from
other EU Member States inquiring about the situation of unaccompanied asylum seekers in
Hungary. Apparently most of the minors claimed
that they have been detained and ill treated. This
is very controversial because, according to the
Hungarian legislation, minors cannot be detained.
However, in practice they can be detained in
case their actual age has been disputed by the
authorities. Unfortunately, until the medical examination takes place, the Hungarian authorities
do not apply the benefit of the doubt, but detain
the alleged minor. The age assessment procedure conducted in Hungary is also highly problematic. It lacks transparency and proper professional methods of age assessment.
- The HHC met a minor asylum seeker in an immigration jail, returned under a Dublin procedure
from Finland. He had his age assessment files
from Finland, where it was confirmed that he was
indeed a minor, but these files were not taken into
consideration. He remained in detention for several months.

3.5. Somali asylum


seekers
The HHC noticed an interesting development regarding Somali asylum seekers under Dublin procedure with Dublin hits from Greece. Since Hungary at that time still performed transfers of
Somalis to Greece, Somali asylum seekers started to withdraw their asylum applications to prevent their transfer to Greece. Even though they
were no longer asylum seekers, Hungary could
not return them to Somalia, because this would
be the breach of non-refoulement and they all received tolerated status, valid for one year. However, this is not a durable solution and fewer
rights are granted than with refugee status or
subsidiary protection.

3.6. Long deadlines


under Dublin procedure
On average, an asylum seeker who challenges
his Dublin decision stays under Dublin procedure for almost 6 months. According to the law,
the judicial review of a Dublin decision should last
8 days, but the HHC knows of cases where the
judicial review was pending for 5 to 6 months.

DUBLIN TRANSNATIONAL PROJECT Final report

3.7. Expulsion
and detention of Dublin
returnees
Almost all asylum seekers who are returned to
Hungary under Dublin procedure are detained.
The HHC questions the lawfulness of this detention. Usually the ground for detention, according
to the Hungarian law, is the preparation of the deportation (prior to detention an expulsion order
needs to be issued). It is very problematic that a
person who is returned under Dublin (and is therefore clearly an asylum seeker) and wants to
maintain his asylum claim, is first issued an expulsion order and only then the OIN registers his
asylum claim.
A HHC lawyer challenged two expulsion orders of
this kind. Both judgments were positive and the
expulsion orders were annulled. It is important to
note that one client was granted subsidiary protection in the meantime. The judge ruled that the
expulsion order was unlawful, because it should
not be issued before the termination of the asylum procedure. The expulsion procedure should
not have even started, since the client was indeed entitled to legal stay in Hungary.
The court also criticizes the OINs assessment of
the principle of non-refoulement, doubting its
quality, as two months after the expulsion order
(in which the OIN opinion on non-applicability of
the principle of non-refoulement is included) the
OIN granted subsidiary protection to the applicant, which is even higher form of protection
than non-refoulement. In the second case, the
applicant filed his third application for asylum, so
he was not entitled to stay in the country (no suspensive effect).
This is why the judge ruled that even though the
client entered the country legally (with a Dublin
laissez-passer), he did not stay legally in the
country, so the OIN had the right to launch the
expulsion procedure. However, due to the fact
that the asylum procedure was already ongoing
at the time of the expulsion decision, the OIN
should have suspended the expulsion procedure
before issuing an expulsion order and wait for the
outcome of the asylum procedure, and could
have brought an expulsion decision only in case
the client had been rejected on a final basis.
It is clear now that regardless of how many times
the client applied for asylum before, there is no
ground for expulsion after a Dublin transfer in
cases where the client requests the procedure to
be continued. Unfortunately, the OIN still continues with this controversial practice.

59

3.8. Family unity


- A father with two minor children from Afghanistan was under a Dublin procedure with Greece.
An HHC lawyer asked for judicial review of the
Dublin decision, but only after this was it discovered that the mother was in Norway. Unfortunately this fact came to light too late, because the
decision was already issued and the court can
only examine the legality of the decision at the
time the decision was issued. The court decision
was negative and the HHC asked the UNHCR to
intervene in the case. After their intervention, the
Hungarian authorities decided to examine the
case in merits and the family will not be transferred to Greece. However, reunification with their
mother is at present not possible.

3.9. Risk of
non-suspensive effect
of subsequent asylum
applications of Dublin
returnees
- The HHC assisted an Iranian woman with two
children who is currently under Dublin procedure
in the UK and does not want to be returned to
Hungary. We provided an expert opinion on the
situation in Hungary that might help her to prevent the transfer to Hungary. The new law removed the suspensive effect on the execution of expulsion of subsequent asylum applications.
She already applied for asylum in Hungary before
and her case was discontinued when she left,
therefore, if returned her application would be
considered as a subsequent one. The law does
provide a safeguard: if authorities in their last decision decided that the principle of non-refoulement should apply, the suspensive effect is not
removed. However, taking into consideration the
practice that almost every asylum seeker who
comes to Hungary is firstly issued an expulsion
order, it is highly likely that an asylum seeker returned under Dublin, coming from the country
which is not considered as prima facie inadequate for return, will be firstly issued an expulsion
order.
This practice is of serious concern, because it
might result in the deportation of asylum seekers
who have never had their asylum application examined on the merits.

4.Recommendations
at national level
Recommendations on the application of the
Dublin Regulation in Hungary:
Respect for family unity should be a primary
consideration of asylum authorities when applying the Dublin Regulation. Family members as
a principle should not be separated.
Dublin procedures should be conducted faster.
Appeals in Dublin cases should have suspensive effect or at least the request to suspend the
transfer should have a suspensive effect until the
in-merit assessment of this request.
Applicants should have more time to lodge
their appeal against a Dublin procedure.
An oral hearingshould be ensured during the
appeal procedure.
The OIN should follow the recent court decisions and stop issuing expulsion orders to asylum
seekers returned under a Dublin procedure who
wish to continue their asylum procedure in Hungary. The OIN should conduct a full examination
of the substantive grounds of the asylum seekers
claim.
Subsequent asylum claims should not be deprived of suspensive effect if the applicant never
had his asylum claim examined on the merit before.
The OIN should perform more detailed and individualized assessment of the principle of nonrefoulement.
The current restrictive detention policy should
end and detention has to be applied only if other
less coercive measures cannot be applied effectively and if there is a significant risk of absconding. The Dublin Regulation shall not be used as
grounds for detention after transfer.
Children and vulnerable persons should not
be held in immigration jails.
Age assessment should be conducted properly, on a thorough scientific and methodological basis, and the benefit of the doubt should be
applied in case of the alleged minors until the age
assessment is conducted.
Hungarian authorities should establish an effective mechanism for the identification of vulnerable persons amongst refugees and asylumseekers.

60

DUBLIN TRANSNATIONAL PROJECT Final report

Conclusions at national
level regarding
the implementation
of the project:
There should be a system in place which would
enable access to the asylums seekers at the airport, right after their return to Hungary under Dublin procedure.
The HHC has limited access to the asylum
seekers under a Dublin procedure, because due
to the strict detention policy, most of them were
detained. As mentioned, HHCs attorneys visit immigration jails once a week, but their main activity is legal counseling and they dont have capacity to perform detailed interviews with asylum
seekers in order to fill in the follow up sheets.
Other HHC staff do not have enough capacity to
visit the immigration jails regularly in order to implement this project.
Also the conditions for conducting interviews
with asylum seekers are far less convenient than
in an office environment. We usually met with
asylum seekers on the corridors of the jail, where
there were many detainees, who wanted to
speak with us about many issues not necessary
related to Dublin and our time was limited to one
day per visit.
Even though Hungary is mainly a receiving
country, we received relatively little information
on asylum seekers returned to Hungary from
other EU NGOs. In several cases when we wanted to trace the asylum seeker returned to Hungary, we could not find his name in the registry
of the OIN.

DUBLIN TRANSNATIONAL PROJECT Final report

61

Organization: Irish Refugee


Council
1. National context:
legislation on asylum and
Dublin. Field observations
and recent developments

and receive 19.10 weekly allowance or 9.60


per child. This system has received much criticism in recent years, largely due to the amount
of time people spend in Direct Provision as a result of delays in processing applications.

The Refugee Act 1996 (as amended) and the European legal instruments provide the key legislative framework for determining asylum and
subsidiary protection applications in Ireland. However, Ireland has only recently attempted to
translate the Procedures Directive into domestic
law, failed to implement the Temporary Protection Directive and has opted out of the Reception
Directive altogether.

Following the preliminary interview, the applicant


is given a detailed questionnaire, which requires
him or her to provide biographical and other personal details, travel particulars and, most importantly, the reasons for seeking asylum. This
questionnaire must be completed and returned
to the ORAC within two weeks.

The number of people seeking international protection coming to Ireland has decreased in recent years from approximately 11,500 new applications in 2002, to fewer than 2000 in 2010.
The main source countries currently are Nigeria,
which accounts for approximately 20 per cent of
all applicants, Pakistan, China, and Democratic
Republic of Congo.
Applicants enter the system at an Irish Border by
presenting themselves to the Garda National Immigration Bureau (GNIB) or within the state by
presenting themselves to either the Irish Naturalisation and Immigration Service (INIS) or the Office of the Refugee Applications Commissioner
(ORAC) in Dublin.

30 - Previously Minister for


Justice and Law Reform.

31 - The Office of Refugee


Applications Commissioner
(2011) Monthly Report for
December 2010.

62

The ORAC is responsible for registering an individuals application for asylum in the first instance and conducting a preliminary interview.
The purpose of this interview is to establish if the
individual wishes to make an application for a declaration for refugee status and, if so, the general grounds upon which the application is based.
At this point, the applicant is referred to the Reception and Integration Agency (RIA). The RIA is
responsible for the planning, co-ordination and
provision of reception services to asylum seekers. After an initial period in a reception centre
in Dublin, the asylum seeker is dispersed by the
RIA to a Direct Provision centre, most of which
are outside Dublin. Most applicants remain in
the Direct Provision system for the duration of
the application. This is a largely cashless system
where the State provides full board accommodation. Asylum seekers are not allowed to work
at any time during their protection application

Following the submission of the detailed questionnaire, the applicant must attend a substantive interview, carried out by an ORAC caseworker. Although the applicant is entitled to have
a legal representative present during the interview, this entitlement is rarely used. The detailed
questionnaire and substantive interview are
usually completed with little or no legal advice,
and without applicants really knowing what information is required and/or what additional factors will be taken into account. The interview
normally takes place with no contemporaneous
recording and the ORAC Officers notes are not
made available to the applicant until after the
claim has been refused and is proceeding on
appeal.
On the basis of the findings of the preliminary interview, the completed questionnaire, the substantive interview and any relevant documentation
the ORAC official prepares a report on the application which will incorporate a recommendation on whether or not refugee status should be
granted, along with the reasons for this recommendation. ORAC recommendations that support the asylum claim are passed on to the Minister for Justice, Equality and Defence30. The
Minister is responsible for making the decision to
either grant or refuse a declaration as a refugee
in accordance with section 17 of the Refugee
Act, 1996 (as amended). In 2010, of the 2,192
recommendations made, only 24 were positive
recommendations31, a recognition rate of approximately 1 per cent.
At any time in this process, the ORAC may determine that the person is subject to the Dublin
II Regulation and make a decision that they will
be transferred to another EU state. It is not unuDUBLIN TRANSNATIONAL PROJECT Final report

sual for the asylum applicant not to know about


the refusal on these grounds until they are picked
up to be transferred.
In cases where the recommendation on the main
application is negative, the ORAC notify the applicant accordingly. At this point, applicants are
entitled to appeal to the Refugee Appeals Tribunal (RAT). The purpose of the RAT is to consider
and decide appeals against the ORAC recommendations and make recommendations to the
Minister. In 2009, 92 per cent of appeals to the
RAT reaffirmed the recommendation of the
ORAC32. Unfortunately, recommendations by the
RAT are not published which has lead to a lack
of transparency in both the application and appeals process.
Negative recommendations by the RAT are passed to the Minister who instructs INIS to issue a
notice proposing deportation. Under the current
system, this notice enables an applicant to apply for either Subsidiary Protection and/or make
representations against deportation (and that
would result, if successful, in Leave to Remain
status), or agree to deportation or voluntary removal.
An applicant does not have the right to appeal
against the RAT recommendation. A RAT decision may only be challenged by way of Judicial
Review to the High Court, which is an expensive
and lengthy process for both the applicant and
the State.

1.1. Separated Children Seeking


Asylum
Under the Refugee Act 1996 (as amended) immigration officers or other authorised officers
who suspect that a child is aged under 18 and
does not appear to be in the custody of any
person shall inform the Health Service Executive
(HSE) and thereupon the provisions of the Child
Care Act, 1991 shall apply to the child. The HSE
thus assumes all legal responsibility for the child
and must decide if it is necessary to apply for refugee status on behalf of the child.
Between 2000 and 2010, 5952 separated children were referred to the HSE, of which 2865
were placed in care. 2868 were reunited with family members and the remainder were either
age-reassessed and deemed to be over 18;
were sent back to another EU country under
Dublin II; turned out to be accompanied; or immediately went missing33. There is no special
provision within the Child Care Act, 1991 for separated children which has led to the creation of
a number of protection gaps for separated children seeking asylum in Ireland. Prior to 2010, separated children were accommodated in hostels
with limited care staff. Following a major review
of child protection in Ireland these hostels have
DUBLIN TRANSNATIONAL PROJECT Final report

been phased out and since January 2011 separated children are generally accommodated in residential centres in Dublin for a period of twelve
to sixteen weeks before being placed in foster
care. Separated children are also now generally
allocated a social worker as a matter of course
which did not happen in the past. However, despite these improvements in the provision of care
to separated children a number of issues of
concern remain for those working in the area.

1.2. Application of the Dublin II


Regulation in Ireland
The Dublin Regulation is directly applicable in Ireland but was given domestic effect through Section 22 of the Refugee Act, 1996 (as amended)
and the Refugee Act, 1996 (Section 22) Order,
2003 (SI 423/2000). In the current asylum system, an individual making an asylum application
may be subject to the provisions of the Dublin II
Regulation to determine whether Ireland is in
fact responsible for processing their asylum application. The Dublin Unit within the ORAC is
responsible for the implementation of the Dublin
II Regulation. This unit is responsible for determining whether applicants should be transferred
to other EU member states or have their application for asylum assessed in Ireland. It also
deals with requests from other member states to
transfer applicants for asylum to Ireland. It should
be noted however that Ireland is primarily a sending country and receives very few transferees
from other member states.
If an individual is found to be subject to the provisions of the Regulation it is up to that individual
to make submissions in writing if they wish for
their application to be processed in Ireland. At
this stage the Refugee Applications Commissioner will take into account relevant information or
submissions and representations made on the
behalf of the individual in coming to a decision
about their transfer. However, applicants frequently are unaware that they fall under the Dublin II Regulation and do not make additional
submissions in relation to their potential transfer.
In 2009, the ORAC made 402 Dublin II Regulation determinations, representing 10.3 per cent
of total cases finalised by the ORAC34. This was
a 2 per cent increase from 2008, where 385 Dublin II Regulation determinations were made, representing 8.4 per cent of total cases finalised by
ORAC35.
Applicants may appeal Dublin II Regulation determinations from the ORAC to the RAT. The
Refugee Act 1996 (Section 22) Order 2003 mentioned above governs these appeals. Applicants
have fifteen working days to make and lodge the
Notice of Appeal and do not have an option for
an oral hearing. It should also be noted that the
lodging of an appeal does not suspend the

32 - The Refugee
Applications Tribunal (2010)
Annual Report for 2009

33 - Arnold and Sarsfield


Collins (2011) Closing a
Protection Gap, Dublin: Irish
Refugee Council

34 - The Office of Refugee


Applications Commissioner
(2010) Annual Report for 2009
35 - The Office of Refugee
Applications Commissioner
(2009) Annual Report for 2008

63

transfer of application to the relevant country or


the removal of the applicant to the applicants
country of origin. In order to suspend the transfer, applicants must apply to the High Court for
an injunction.
In practice, the anecdotal evidence would suggest that applicants are frequently being given
notice of the determination and being issued a
transfer order simultaneously, thus limiting their
ability to contact their legal representatives and
lodge a Notice of Appeal. Nonetheless, 2009
saw 143 appeals lodged with the RAT in relation
to Dublin II Regulation determinations 36 .
171 appeals were completed and at year end
there remained 26 live appeals. In both 2008
and 2009, the RAT affirmed 100 per cent of Dublin II Regulation determinations37.
As previously mentioned, an applicant does not
have the right to appeal against a RAT decision
and the only way for these decisions to be challenged is by way of Judicial Review to the High
Court an expensive and lengthy process for all
involved.

1.3. Recent Developments


in Ireland
In February 2011, a general election was held in
Ireland, which saw the Fianna Fil Party that
had held power for the past 14 years removed
from office. The new government is a coalition
between the Fine Gael Party and the Labour
Party. In his first month in office the Minister for
Justice, Equality and Defence, Minister Alan
Shatter, has promised to re-introduce the Immigration, Residence and Protection Bill for debate
before the Houses of the Oireachtas. This bill will
be the fourth version of such a bill, which is primarily intended to consolidate previous legislation on immigration and asylum as well as to introduce new measures and transpose key
procedures into legislation which currently only
exist in the form of statutory instruments. If the
bill is passed into law, it is likely to have a significant impact on the immigration and asylum
landscape in Ireland.

36 - The Refugee
Applications Tribunal (2010)
Annual Report for 2009
37 - The Refugee
Applications Tribunal (2010)
Annual Report for 2009

64

2. Assessment
of project implementation
by the partner
organization
At the beginning of the project cycle, the Irish Refugee Council established a project officer post.
The project officer was tasked with carrying out
any administrative duties related to the project,
and liaising with the finance officer as well working towards project goals such as the country
specific brochures, advertising the network to
other organisations working with asylum seekers
in Ireland and interviewing any asylum seekers
subject to Dublin II referred to the IRC. This post
is for four days per month and has been held by
a number of individuals. The project officer gave
updates on the progress of the project at each bi
monthly team meeting. This served to remind all
staff members and interns that should they have
enquires from an asylum seeker who was subject
to the Dublin II Regulation these people should be
referred to the project officer for a preparatory interview and needs assessment.
In line with the partnership agreement the Irish
Refugee Council has delivered on a number of
outcomes including the finalisation of the brochure on Irish asylum procedures and the implementation of the Dublin II Regulation in Ireland. The IRC has also been proactive in seeking
the support of organisations within Ireland such
as the ORAC, Refugee Legal Services (RLS),
members of the Refugee and Immigration Practitioners Network (RIPN), and other regional
NGOs that have contact with asylum seekers
that may be subject to the Dublin II Regulation.
Despite these efforts, to date, the IRC has received no referrals from other organisations in relation to the Transnational Advisory and Assistant
Network for Asylum Seekers under a Dublin Process. All asylum seekers that have undergone a
preparation interview were individuals who approached the IRC independently, generally in relation to another aspect of their case. There are
a number of reasons why there has been such a
small number of referrals. First, as outlined
above, anecdotal evidence suggests that many
applicants frequently are served with notice and
transfer orders simultaneously, thus precluding
them from accessing services such as this. Frequently, people who have been issued a transfer
order do not attend with their legal representation again, and so are not identified as people
that may benefit from being referred to the IRC.
Second, in some cases that came to the attention of the IRC, applicants are notified that a decision has been made in their case. Worryingly,
they were not informed of the details of that decision. It subsequently emerged, when they were
picked up by Garda that the decision related to
a decision to transfer them to another EU memDUBLIN TRANSNATIONAL PROJECT Final report

ber state under Dublin II. Finally, many applicants are more concerned with challenging the
decision to transfer them to another EU State
than establishing links with a partner organisation
in the receiving country.
Of the four applicants38 that have been identified
and interviewed by the IRC to date, 100 per
cent of these applicants were subject to transfer
to the United Kingdom (UK). This is not unusual
and is in line with current trends. There are a limited number of direct flights from outside of Europe to Ireland and any applicant entering the
country via a sea port will have passed through
another EU state. In many cases, applicants
have previously had visas of some description for
other EU states, most commonly the UK, or
have previously applied for asylum in another jurisdiction, again most commonly the UK. As a result, the lack of a formal partner in the UK or Northern Ireland has proven a significant barrier in
providing any meaningful assistance to individuals subject to transfer from Ireland under the
Dublin II Regulation.
Furthermore, since there are very few applications from other member states to Ireland, asking
the Irish authorities to take responsibility for asy-

lum applications, the IRC did not receive any referrals from other partners involved with the project. Statistics in relation to the number of applicants that are transferred to Ireland under Dublin
II are not held but anecdotal evidence suggests
that of the small number of asylum seekers that
arrive through this means, the vast majority of
such applicants are transferred from the UK to
Ireland.
Again, without a partner in the UK to identify
and assess the needs of these individuals, the
IRC has not received any referrals. Individuals
that have been identified as having been transferred to Ireland under the Dublin II Regulation
have either presented themselves at the offices
of the IRC seeking assistance or have been referred by other NGOs working in the sector in Ireland.
Without a larger sample it is difficult to comment
on any trends amongst asylum seekers facing
transfer under the Dublin II Regulation. However,
of the four people interviewed, most were largely
unaware of the implications for their protection
applications of having even simply a transit visa
for the UK. Only one of the four was happy to be
transferred to the UK due to family links.

CATEGORY

NUMBER

asylum seekers under the Dublin procedure assisted by your organization

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis 39

asylum seekers directed to a partner


0
number of asylum seekers who received
an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview
Asylum seekers received from the partner

38 - Country of Origin:
Jamaica 1; Sri Lanka 1;
Algeria 1; Afghanistan 1

39 - Despite assisting four


individuals and conducting
preparatory interviews,
as they were all due to be
transferred to the UK where
there is no partner, they did not
benefit in any meaningful way
from their engagement with the
project, hence the zero figure
recorded here.

DUBLIN TRANSNATIONAL PROJECT Final report

65

3. Analysis
of the application
of dublin at national level
(case studies)
As mentioned above, with regard to the Dublin II
Regulation, Ireland is primarily a sending country
and not a receiving country. This fact naturally is
of significant importance when analysing procedures in Ireland. As outlined above, the Dublin II
Regulation is applied directly and has been transposed into domestic law by Statutory Instrument
423/2003. The Dublin Unit within the ORAC is
tasked with investigating if an applicant is subject
to the Regulation and continues to work with authorities throughout Europe to this end.
During the life of this project the IRC identified a
number of issues related to the application of
the Dublin II Regulation. Some of these themes
are unique to the Irish context others however will
have resonance throughout the EU.

3.1. Access to Information


When applicants make their initial asylum claim,
they are presented with an information leaflet
containing details of the asylum process in Ireland and the various laws and regulations that
govern Irelands protection system. Included within this leaflet is information regarding Dublin II.
The name leaflet is somewhat misleading however, as this document runs to forty-three A4
pages.

40 - The ORAC leaflet


is available in Albanian,
Arabic, Croatian,
Czech, Chinese, English,
Farsi, French, Kurdish
Sorani, Kurdish Kurmanji,
Portuguese, Punjabi,
Romanian, Russian, Serbian,
Slovak, Spanish, Tamil, Thai,
Turkish, and Urdu.
41 - Per comms, 2010

42 - Country of Origin:
Malawi 3 children;
Zimbabwe 1 child;
Congo 1 child

66

The leaflet is available in 21 languages40 and has


a chapter (five pages) devoted to the Dublin II Regulation. Despite the leaflet being available in several different languages, asylum seekers in
contact with the Irish Refugee Council have frequently said they do not understand the information. The leaflet is written in quite legalistic
and technical language and thus is not easily understandable. Furthermore, not every country in
the world enjoys the high literacy rates that are
evident in Ireland. This is especially important
when considering particularly vulnerable applicants such as children or women who may have
come from a country where the education of girls
and women is not highly valued. There is also no
child-friendly version of this leaflet available.
Applicants who have come to the attention of the
IRC and have subsequently been determined to
be subject to transfer pursuant to the Dublin II
Regulation, have frequently stated that they were
either unaware of the process or did not understand the process.
Of particular concern, there have been incidents
of letters being issued by the ORAC informing an
applicant that a decision has been made but

not indicating what that decision was or outlining


the reasoning behind that statement. Consequently, it has proven difficult for the IRC to
conduct preparatory interviews or to gather sufficient data to produce substantial results especially with regard to how Irish authorities progress
requests to other member states to take control
of or take back applicants.
Two young Tamil men from Sri Lanka were assisted by the IRC in making their claims for asylum. Both men had travelled to Ireland from Sri
Lanka via Dubai and the UK. They both claimed
asylum in September 2010. Both presented to
the IRC in relation to their general claims for asylum and seeking assistance accessing support.
Both young men attended with IRC representatives on a number of occasions. Both received
letters stating that a decision had been made in
their case. The letter however did not state what
that decision was or what the implications of said
decision were. The IRC attempted to establish
what the decision was, however in the intervening
period one of the young men was picked up by
authorities and transferred to the UK.
Following the transfer of his friend, the second
young man, Mr S presented at the IRC in a
state of distress. It subsequently emerged that
Mr S was also subject to a transfer and a preparatory interview was conducted and based on
our in-house knowledge of NGOs and Law Centres in the UK we gave him information that
might be useful. Ms S has now been transferred
to the UK.

3.2. Returns to Greece


Following the recent ECtHR decision in M.S.S. v
Belgium & Greece in which the court found major flaws in the asylum system in Greece the
Irish government confirmed that it is halting all
transfers to Greece under Dublin II.
In practice, however, transfers to Greece have
been halted for the past number of months due
to a number of cases that have been taken to the
High Court of Ireland. The applicants do not dispute that they came into Europe via Greece but
argue that their human rights will be violated if
they were to return there for consideration of
their asylum applications. This is because of the
asylum decision making process and support
system in Greece which has received widespread condemnation. The matter has been referred by the High Court to the Court of Justice
of the European Union for further consideration.
The case has been joined with other referrals e.g.
from the UK and is awaiting consideration. All
other challenges to Greek transfer in the Irish
courts remain pending, until a decision is reached in regard to the referred cases however the
landmark decision in M.S.S. v Belgium and
Greece will hopefully have widespread implications on this issue.
DUBLIN TRANSNATIONAL PROJECT Final report

3.3. Separated Children


Seeking Asylum

4. Recommendations
at national level

Throughout the EU, member states have adopted different approaches to dealing with separated children who may fall within the remit of the
Dublin II Regulation. The Scandinavian countries
along with France for example do not transfer separated children. Ireland however does transfer
separated children and according to the Department of Justice, Equality and Law Reforms
Statistics Department41 five children42 were transferred in 2009. All of these children were transferred to the United Kingdom. Unfortunately, figures for 2010 are not yet available.

The Dublin II Regulation has been seized upon


by the Irish authorities and used to its fullest extent to minimise the numbers of asylum seekers
whose substantive claims are processed in Ireland. As outlined above, for reasons of geography and air routes, Ireland is frequently not the
first European country that an asylum seeker
enters and thus is primarily a sending country.
Most transfers are to the UK, again largely due to
our geography.

The IRC has not had any contact with separated


children subject to transfer under the Dublin II
Regulation.

3.4. The Transfer


Experience
As previously outlined most applicants to whom
the Dublin II Regulation can be applied are transferred from Ireland to the UK. Applicants who are
subject to a transfer order are typically picked
up in the early morning by Garda from the
GNIB. They must then dress and pack under the
supervision of GNIB officers. They are generally
not informed of the exact date and time that
they will be transferred.
This is similar to experiences of applicants whose
asylum claims have been rejected and are subject to a deportation order. In both cases, individuals are generally brought to the airport, where
they are kept until their flight departs later that
day. As the pick-ups generally take place in the
early hours of the morning, and flights may in
some cases not be scheduled until the evening
or night time, this makes for a long and stressful day.
There are no special provisions made for children. The IRC normally does not have access to
these individuals, nor contact with them following
their departure from Ireland. However, evidence
has emerged from a deportation flight in December 2010, which was returned due to technical difficulties with the aircraft that individuals
are not treated with dignity or respect during
this process.
Complaints included lack of privacy going to the
toilet, overzealous use of restraints, inadequate
provision of food and water, the detention of
children, and intimidation by GNIB officers. It
should be noted that as no partner organisation
was available to connect with transferees from
Ireland to the UK, we cannot be sure if transferees within Europe are treated in the same appalling manner.
DUBLIN TRANSNATIONAL PROJECT Final report

In light of the findings from this project and the


anecdotal evidence the IRC would like to make
the following recommendations with regard to
the application of the Dublin II Regulation in
Ireland:
Information should be presented in a clear and
easily understood manner. Not only should written material be available in various languages but
the style of language should be easily accessible
and bear in mind varying rates of literacy across
the globe
Child friendly information should be made available. The IRC in partnership with UNICEF has
created a child friendly map of the asylum process in Ireland but additional material is needed
with regard to the Dublin II Regulation
Decisions should be communicated to applicants in a clear, easily understood manner. Applicants should also be informed of the reasoning
behind decisions.
Applicants should have the opportunity to
consult legal advisers before any attempt is
made to effect their transfer to ensure that they
have an opportunity to challenge their removal
before it takes place.
The decisions of the Refugee Appeals Tribunal
should be published and made publically available as is the case with High Court and Supreme
Court decisions.
Ensure that an appeal to the RAT has a suspensive effect on the transfer order rather than
making it necessary to apply to the High Court
for an injunction. This measure would serve to
both save costs for all parties involved and reduce the judicial burden.
Separated children seeking asylum should not
be transferred except for the purpose of family
reunification and then only if it is in the best interest of the child.
At all stages, individuals should be treated
with dignity and respect and not subject to undue force, restraint or detention.

67

Organization: The Italian


Council for Refugees (CIR)
1. National context:
legislation on asylum and
Dublin. Field observations
and recent developments
1.1. Asylum legislation in Italy
Laws currently ruling the asylum legislation
in Italy are:

43 - GORIZIA: responsible
for asylum applications
lodged in the regions
Friuli-Venezia Giulia, Veneto,
Trentino Alto Adige;

MILANO: responsible for


asylum applications lodged in
the region Lombardia;
ROMA: competent
for asylum applications
lodged in the regions Lazio,
Abruzzo, Sardegna, Toscana,
Marche,Umbria;

FOGGIA: competent
for asylum applications
lodged in the provinces
of Foggia and BarlettaAndria-Trani;

SIRACUSA: competent
for asylum applications
lodged in the provinces
of Siracusa, Ragusa,
Caltanissetta, Catania;

CROTONE: competent
for asylum applications
lodged in the regions
Calabria and Basilicata;

TRAPANI: competent
for asylum applications
lodged in the provinces
of Agrigento, Trapani,
Palermo, Messina, Enna;

BARI: competent
for asylum applications
lodged in the provinces
of Bari, Brindisi, Lecce
and Taranto;

CASERTA: competent
for asylum applications
lodged in the regions
Campania and Molise;

TORINO: competent
for asylum applications
lodged in the regions
Valle d'Aosta, Piemonte,
Liguria, Emilia Romagna.

68

Art. 10, comma 3, of the Constitution of the Italian Republic, which provides the right to asylum
for "A foreigner to whom the practical exercise in
his own country of democratic freedoms, guaranteed by the Italian Constitution, is precluded,
is entitled to the right to asylum within the territory of the Republic, under conditions laid down
by law"; gives a broader definition of a person
entitled to protection compared to the one in the
Geneva Convention.
D.lgs n. 140 of 2005 which became effective
on 19th October 2005 by which Directive
2003/9/CE, the Reception Directive, has been
implemented.
D.lgs n. 251 of 2007 became effective on 19th
January 2008 by which Directive 2004/83/CE,
the Qualifications Directive has been implemented.
D.lgs n. 25 of 2008 effective since 3rd March
2008 by which Council Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee
status - the Procedures Directive, has been
implemented. National authorities in charge of
asylum issues:
- National Commission for the Right of Asylum
(Department for Civil Liberties and Immigration
/ Ministry of the Internal Affairs)
- 10 Territorial Commissions for the Recognition
of International Protection43 (Department for
Civil Liberties and Immigration / Ministry of the
Internal Affairs
- Dublin Unit c/o Department for Civil Liberties
and Immigration / Ministry of the Interior
- Border Police (Department of Public Security
of the Ministry of the Interior)
- Questura (Police Headquarter)

1.2. Asylum procedure in Italy


According to the Qualifications Decree (Dlgs.
251/2007), the concept of asylum has been
replaced by that of international protection, but
for the sake of simplicity the word asylum is still
commonly used.
As soon as a potential asylum seeker (a.s.) arrives
in Italian territory, s/he should go to the Border
Police or to the local Questura (Police Headquarters) in order to claim asylum.
The procedure involves various steps: fingerprinting; a short interview (verbalizzazione) conducted by the Police concerning the information on
previous stays/transit in other European countries
and on the eventual document attesting the identity and eventual visa (national passport); and finally, when verified that the case is Italys responsibility according to the Dublin II Regulation,
communication of the date for the interview before the relevant Territorial Commission (T.C.).
The decision is up to the responsible T.C. where
the asylum application was lodged (in Italy there
are 10 Territorial Commissions, each responsible
for different regions or districts). According to the
new law [Procedures (D.lgs 25/2008) and Qualifications (D.lgs 251/2007) Decrees] in Italy there
is only one asylum procedure i.e. there is no accelerated procedure.
The a.s. can get two different forms of international protection:
- Conventional Asylum (the permit of stay is valid for 5 years);
- Subsidiary Protection (the permit of stay is valid for 3 years. To renew such a permit of stay,
the beneficiary has to apply to the responsible
Questura. The renewal is up to the responsible
T.C. who decides without holding another interview).
When neither refugee status (conventional asylum) nor subsidiary protection is granted, the T. C.
can decide between two different outcomes:
- a real rejection without granting any form of
protection;
- a rejection with a recommendation to the
Questura to provide the a.s. with a permit of
stay on humanitarian grounds.
Humanitarian Protection (the permit of stay is valid for 1 year. In order to renew such a permit of
stay, the beneficiary has to apply to the responsible Questura. The decision for the renewal is
DUBLIN TRANSNATIONAL PROJECT Final report

however up to the responsible Commission who


decides without conducting another interview44).
If the asylum claim is rejected or if the asylum seeker. does not agree with the status granted, an appeal can be lodged. The appeal has to be presented by a lawyer at the Civil Court responsible for the
place [if the a.s. is unable to pay the legal fees due
to insufficient money or lack of income, s/he has
the option of getting free legal aid (patrocinio gratuito) by a lawyer who is paid by the State]. If the
asylum seeker is free within the territory, the appeal
must be presented within 30 days, but if s/he is
staying in an accommodation centre for asylum
seekers (C.A.R.A.), the appeal should be presented within 15 days (with some exceptions). During
the appeal the a.s. can have a permit of stay (except if s/he is held in a retention centre or hosted
in a C.A.R.A. for some specific reasons).

1.3. Dublin legislation in Italy


In Italy the two decrees, Procedures and Qualifications, have no specific impact on the application of the Dublin II Regulation. What is foreseen for asylum seekers is valid for Dublin
cases.

Statistics
Number of international protection
applications submitted:

2008

30 145

2009

17 670

2010

10 050

After the fingerprinting at the Questura, the authorities check the system to verify that the a.s.
has not been to and/or fingerprinted in another
European country. If his/her fingerprints are
found or the a.s. admits freely to have been in
another country, s/he will be considered a Dublin case and his/her file will be sent to the Dublin Unit who will determine the country responsible for examining the asylum claim.
An a.s. has the right to start a judicial review of
a Dublin decision within 60 days, before the Administrative Regional Court (T.A.R.) of the place
where the decision has been notified. There is no
oral hearing and the appeal has no suspensive
effect. An a.s. has the right to ask the court to
suspend his/her transfer, however this request
also does not have a suspensive effect.
Following the decision taken in other EU Member States (e.g. Norway, Hungary, France etc.),
after the recommendations by ECRE and
UNHCR and, above all, after the ECtHR judgment M.S.S. v. Belgium and Greece, the Italian
Minister of the Interior has de facto suspended
transfers to Greece because of the violation of
Art. 3 and 13 of the European Convention on
Human Rights.

Countries of origin of the asylum seekers:


In 2008 the majority came from Nigeria, Somalia,
Eritrea, Afghanistan, Cote dIvoire and Ghana.
(Source: Dossier Statistico Immigrazione 2009
XIX Rapporto Caritas/Migrantes). In 2009 the majority came from Nigeria, Somalia, Pakistan, Bangladesh and Eritrea. (Source: Dossier Statistico
Immigrazione 2010 XX Rapporto Caritas/Migrantes).
For 2010 the statistics are not yet available.

Rate of recognition
of the refugee status:

2008

45 % (8 % conventional
asylum plus 37%
subsidiary protection)

2009

33%

2010

Not available

Source : Ministry of the Interior

Clients assisted by CIR-Rome:


2009 : In 2009 CIR-Rome assisted 1,220 clients
(mainly from: Eritrea, Afghanistan, Democratic Republic of Congo, Nigeria, Ethiopia, Togo, Ivory Coast and Iran).
2010 : During 2010 CIR-Rome assisted 1,835
clients (mainly from Eritrea, Afghanistan and Democratic Republic of Congo, as in 2009, then
from Ethiopia, Nigeria, Togo, Ivory Coast and Iran).

2009

2010

refugees (with a conventional asylum)

44%

55%

asylum seekers

37%

22%

humanitarian protection

9%

8%

subsidiary protection

8%

13 %

Others

2%

2%

DUBLIN TRANSNATIONAL PROJECT Final report

44 - It is extremely important
to specify that in case the
renewal is authorized there
are two different options:
- if the decision was taken
after the implementation of the
Decree 251/2007 (January 19th
2008), the humanitarian
status will be confirmed and
consequently the permit of stay
will be renewed for only 1 year;
- if the decision was taken prior
to the implementation of the
above-mentioned Decree,
when the notion of subsidiary
protection had not yet been
introduced into the Italian
legislation, the humanitarian
status will be automatically
converted into subsidiary
protection and a 3 year
residence permit will
be issued.

69

Statistics on the number of asylum seekers transferred to Italy:

ASYLUM SEEKERS TRANSFERRED TO ITALY

IN-COMING REQUESTS

2008

1 308

5 676

2009

2 658

10 596

2010

not yet available

not yet available

N.B.: All the following statistical data refer to the years 2008 and 2009, as 2010 statistics are not yet available.

Statistics on the number of asylum seekers transferred from Italy to


another responsible country:

SUCCESSFUL TRANSFERS FROM ITALY


TO ANOTHER MEMBER STATE

OUT-GOING REQUESTS

2008

124

1 895

2009

47

1 377

2010

not yet available

not yet available

N.B.: All the following statistical data refer to the years 2008 and 2009, as that 2010 statistics are not yet available.

2. Assessment of the project implementation


by the partner organization
CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization

88 (N.B.: Most of them got counseling


from our CIR colleagues at the seaports).

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

35 (N.B.: Most of them got counseling from our


CIR colleagues at the seaports).

asylum seekers directed to a partner

None

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

480 (N.B.: This number includes the clients who


benefited both from general asylum information
and the Dublin procedure).

Asylum seekers received from the partner

2 (from France terre dasile).


(N.B.: Both cases have been signaled but one of
them later won his appeal against the Dublin Unit
and therefore has been allowed to remain in
France).

Difficulties experienced:
Considering the fact that the projects final beneficiaries had to be the clients of the other network
members, it was decided to write more about the
practice than about the theory and the law foreseen in Italy. In fact, CIRs experience at the Front
Office in Rome has shown that what is supposed
to happen, according to the law is not always
what the Police Authorities actually do. .
In recent years our clients at CIR Front-Office have
mostly come asking CIR to help them avoid their
transfer to the responsible country and this has

70

happened very frequently with Dublin cases due


to be transferred to Greece but on some occasions we have also received the same request
from Dublin cases going to be transferred to
other countries, commonly considered safe and
having a better social situation than Italy (see two
examples at par. 4 pg. 8).
One of the main activities foreseen by the Project
was to submit the individual follow-up files of the
transferring Dublin cases in order to guarantee
them a continuity of assistance and treatment by
transmitting all their personal data and more relevant information to the network partner in the reDUBLIN TRANSNATIONAL PROJECT Final report

ceiving country. This has not been an easy task,


considering that CIRs main office is not generally
accessed by Dublin cases due to be transferred
to another European Country under the Dublin II
Regulation. The same situation is valid at national
level. Indeed, Italy is mostly a receiving country
(: just consider that in 2009 the successful transfers from Italy to the other Member States have
been 47 against 2,658 successful transfers from
the other Member States to Italy). This means that
our work is generally on the opposite side: other
NGOs can report to CIR a Dublin case going to
be transferred back to Italy.
For the cases going to be transferred abroad CIR
is unfortunately not able to verify whether the Dublin Unit decision is correct, to check the state of
health of the Dublin case, and to inform the border service or an NGO in the receiving Member
State in order to arrange for more adequate assistance to the arriving person.
Also our CIR colleagues at the various seaports
and border points all over Italy have experienced
the same difficulty: they are allowed to see the foreigners upon arrival, nonetheless they do not
have much time for treating the different cases present on board or at the border Point. Very frequently it deals with emergency operations: our
colleagues efforts are intended to meet the newcomers on the ships/boats and to inform them
very quickly of their right to apply, if they wish, for
international protection in Italy. They carry out their
tasks without any comfort and they are not even
able to sit in a room together with the potential
a.s. in order to collect her/his personal data and to
fill the Projects individual follow-up file in case
s/he were a Dublin case (this tool - consisting of
11 pages, 6 of which to be filled by the partner in
the sending country - would require about one
hour to be properly filled in): instead, the quicker
their action and counselling, the more effective
their intervention to avoid the foreigners repatriation or their transfer back to the original place.
As a consequence, should we consider only the
follow-up files received, there were two cases from
France terre dasile; should we take into consideration all the requests of information/counselling on
Dublin cases from other European countries,
the number is higher by far. The more frequent reason for which NGOs all over Europe required our
counselling was to get information on the social
conditions and lodging facilities in Italy because
their legal advisors and lawyers wanted to support
their appeals against their clients transfer back to
Italy by showing the shortfalls of the Italian social
and reception system.
Positive effects:
Considering what derived in 2009/2010 from the
implementation of the Project Dubliners - run by
CIR and another 5 organizations (Germany,
Greece, Hungary, Spain and Sweden) and 4 Dublin Units (not the German one), the creation of the
brochures has been extremely important. In fact,
from the final report of the project Dubliners:
DUBLIN TRANSNATIONAL PROJECT Final report

The lack of information provided to Dubliners is


surely one of the most serious problems encountered during the research. Asylum-seekers have
often proved to be unaware of what was happening to them, of their rights and of the procedure
itself. () .
Having in hand practical and up-dated brochures
on the current legislation and practice in the EU
Member States partner of this project, has been
one of the strong points of this project that offers
counselling and answers both to CIR clients and
to other NGOs, both in Italy and abroad.
The short brochure is useful not only to asylum seekers but also Police staff. Similarly, the Italian Dublin Unit, that on this occasion as for other previous
similar ERF projects agreed on the importance of
having pamphlets or other information available
for consultation, was very sympathetic towards
the vulnerable Dublin cases signalled by NGOs.

3. Analysis of the
application of Dublin at
national level (case studies)
During the daily work at CIR and through the legal
counselling provided to asylum seekers during
this project, CIR identified the following main issues related to the application of the Dublin II Regulation:
a) Request to the Italian Dublin Unit for the application of the sovereignty clause:
When NGOs refer to the Italian Dublin Unit some
Dublin cases, whose responsibility has already
been assigned to another European country, as
fragile and vulnerable cases - sometimes with a
steady social integration in the Italian territory
(knowledge of the Italian language, successful or
still in progress education process, a specific and
effective health programme which is valid for their
recovery from trauma, etc.) - the Dublin Unit may
apply the sovereignty clause enabling them to remain in Italy.
- CIR is currently assisting a Pakistani lady, an extremely fragile case, who did not want to be
transferred to Sweden, even if the responsibility
for her case had already been accepted by the
Swedish Dublin Unit.
- Another case is an Iraqi citizen, who attempted
suicide to prevent removal to Sweden, due to
the fear of being repatriated to Iraq (in fact, recently some countries in West Europe in particular Sweden, Norway, Denmark and the United Kingdom have expelled many Iraqis to
their country of origin).
After some months of suspension, very recently
the Italian Dublin Unit has finally accepted responsibility for these cases. For both cases CIR had
applied for the sovereignty clause to be used and
had sent a request to the Dublin Unit for their reexamination.

71

b) Return to Greece under Dublin procedure:


It is important to point out that frequently at national level the appeals lodged against transfer to
Greece were successful.
We could mention some case laws on the implementation of the Dublin II Regulation, starting with
the important success achieved by a CIR lawyer:
A verdict45 of the Administrative Regional Court
(TAR) of the Region Puglia in Lecce, establishing
the nullification of the decision of the Dublin Unit for
the transfer of a Dublin case to Greece as the
responsible asylum Country and, as a consequence, authorizing the person to remain in Italy.

45 - N. 1870/2008
dated 14th May 2008

46 - CIR asks to the Italian


Minister of the Interior to
suspend tout court the socalled Dublin cases to
Greece, as already happens in
other European Countries,
recently also in France. In its
decision the Strasbourg Court
recognizes that the situation of
the asylum seekers in Greece is
lacking both as concerns the
procedures for the recognition
of the refugee status and as
concerns the reception and
detention conditions. Over the
last years this situation has
been frequently reported by
various protection bodies,
included UNHCR, which
already in April 2008 started to
ask to the EU Member States
not to proceed with the transfers
of Dublin cases to Greece.
The Strasbourg Court, with its
decision, has recognized the
responsibility both of Greece for
the violation of art. 3 and art.
13 - and also of art. 3 of ECHR
- and of Belgium for having
proceeded with the transfer to
Greece putting the asylum
seeker, inter alia, at risk of
refoulement to Afghanistan,
through his transfer to Greece.
That decision the first
recognizing the violation of the
ECHR with reference to a
transfer within the Dublin II
Regulation puts a strong
strain on the consequences of
the application of the
Regulation since all Member
States, that should make a
transfer not only to Greece but
also to other EU Member
States, are now obliged to verify
that this measure would not
expose the person to a risk of
violation of the ECHR. In the
practice, in the past Italy has
sometimes applied the so-called
sovereignty clause but on a
case by case evaluation,
therefore long and expensive,
and not always with a
successful result for the Dublin
case. CIR underlines that some
cases to which this clause has
not been applied, have been
deemed as unfeasible by the
national courts called to take a
decision.

72

Furthermore, another noteworthy case mentioned


in the Dubliners Project Final report, pg. 47 (project implemented under the ERF Community Actions 2007): Another relevant case regards an
Iranian asylum seeker, Mr. A. had to be transferred
from Italy to Greece after a decision taken by the
Italian Dublin Unit considering Greece as a safe
third country and not finding reasons for applying
art. 3.2. Nevertheless, on the 16th February 2010,
the Regional Administrative Court for the Region of
Lazio revoked the transfer decision considering
the applicants appeal as valid (: decision n.
2249/10). According to the Court, the Italian administration should have undertaken a deeper evaluation of the situation the asylum-seeker would
have had to face in Greece. (). This important
decision confirms and consolidates the existence
of a clear jurisprudence stipulating the necessity of
suspending transfers to Greece and of applying
the discretionary clause under the Dublin Regulation when, due to the particular situation in this
country, transferred the fundamental rights of asylum-seekers would not be guaranteed .
After the decision delivered from the Strasbourg
Court (Case n. 30696/09 MSS vs Belgium and
Greece, 21/01/2011), on March 17th 2011 CIR officially asked the Italian Minister of the Interior to
stop transfers to Greece46.
c) Follow-up of vulnerable cases:
An Afghan a.s., Dublin case from Norway, arrived
via Brussels at the Airport Marco Polo in Venice:
he had been signalled by the Dublin Unit as a particularly vulnerable case. The a.s. was assisted by
the Municipality of Venice and the Department of
Mental Health of Marghera. CIR operators could
not interview him because he was under the influence of depressants. Then he was accompanied to the Hospital of Mestre, Psychiatric Ward.

4. Recommendations
at national level
4.1. Conclusions and
recommendations at national level
in order to improve the
implementation of the project
provide complete and coherent information in a
language that asylum seekers are sure to understand: e.g. for Italy also a translation into Tigrinya
would be useful considering the high number of
asylum seekers from Eritrea;
improve the working conditions for the border
operators who are very frequently not offered the
best facilities for assisting and conducting interviews with Dublin cases;
to keep both the brochures - created within this
project - constantly up-dated;
to facilitate the implementation of projects, like
the current one, by using more practical and shorter questionnaires: too much bureaucracy is very
often an obstacle for the quick referral of the case
to the partner in the receiving country by the partner in the transferring country (e.g. the password
for the reading of the questionnaire could be taken
off; the procedure with non-partner NGOs should
be eased by deleting the necessity of an official ad
hoc agreement with the leading agency).

4.2. Conclusions and


recommendations on the
application of the Dublin II
Regulation in Italy
Probably the weakest matter in Italy remains the
reception system. A reception system does exist
but it cannot completely satisfy the number of
asylum seekers (including also the Dublin cases)
in need of accommodation. Hence the Italian Government should permanently increase the number of places within the National Reception System, called S.P.R.A.R. [Servizio di Protezione per
Richiedenti Asilo e Rifugiati (: Protection Service for
Asylum Seekers and Refugees)], as it has been
done nowadays after the North African humanitarian crisis for the massive flows of boat people (including asylum seekers) in Italy coming from those
areas.
In addition, the tendency of some sending Member
States proceeding with transfer of Dublin cases
without previous communication to the Italian Authorities is continuing as in the past and, furthermore, very frequently this incorrect procedure is
pursued by causing serious practical problems to
border staff and police authorities who have to
face emergency situations. And what is worse, sometimes the sending countries are inclined to supply incomplete information on the real health conditions of the Dublin cases on arrival in Italy to
avoid possible refusal of their taking in charge.

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Helsinki
Foundation for Human Rights
1. National context:
legislation on asylum
and Dublin. Field
observations and recent
developments
1.1. Legislation on asylum
Asylum legislation in Poland is regulated in the
Act of 13 June 2003 on granting protection to foreigners within the territory of the Republic of Poland (Journal of Laws of 2003, No 128, item 1176).
A related Act is the Act on Foreigners of 13 June
2003 (Journal of Laws of 2003, No 128, it. 1175).
The administrative procedure applied in refugee
cases is defined in the Code of administrative proceedings (Journal of Laws of 1960 No 30, it. 168).
Basically, there are three forms of protection to be
granted to a foreigner asking for asylum in Poland47, which are examined in one proceedings:
refugee status (status uchodcy), subsidiary
protection (ochrona uzupeniajca) and tolerated
stay permit (zgoda na pobyt tolerowany). The first
two forms of protection are based on the Geneva
Convention of 1951 and the Qualification Directive,
the last form is a form of national protection. This
last form of protection is granted if the expulsion of
the foreigner: 1) would constitute a threat to his/her
life, freedom and personal safety, when in the country of origin he/she could be subjected to torture,
inhumane or degrading treatment or punishment;
could be forced to work; deprived the right to fair
trial; or could be punished without any legal grounds
within the meaning of the Convention for the Protection on Human Rights and Fundamental Freedoms; 2) would violate the right to family life within
the meaning of the Convention on Human Rights
and Fundamental Freedoms (art. 8 ECHR) or would
violate the childs rights determined in the UN
Convention on the Rights of the Child to the extent
that the psychophysical development of such child
is threatened; 3) is unenforceable due to reasons
beyond the control of the authority executing the
decision on expulsion and beyond this foreigner
(e.g. the foreigner is considered stateless or does
not have any documents and his/her identity cannot be confirmed).
Asylum request (i.e. application for granting refugee status) should be submitted through the offiDUBLIN TRANSNATIONAL PROJECT Final report

cer of the Border Guard to the Head of the Office


for Foreigners. When a person decides to apply for
asylum, his visa for entering Poland is cancelled
and the passport is passed by the border guard to
the deposit of the Head of the Office for Foreigners. The person gets instead a temporary ID document (Tymczasowe Zaswiadczenie Tozsamosci
Cudzoziemca, green card), valid for one month,
this is afterwards extended by the Head of the Office for Foreigners until the end of the asylum procedure.
The Head of the Office for Foreigners examines the
case as the authority of first instance. The most important phase of the proceeding is a hearing, during which the applicant is questioned about the
reasons why he/she left his/her country of origin.
During the interview, the asylum seeker is entitled
to be assisted by an interpreter. Documents and
other evidence may be presented at any stage of
the proceedings (before, during or after the hearing) before the authority takes the decision. Authorities provide for a translation of the documents.
According to the legislation, first instance proceedings should not last more than 6 months. In practice, the regular proceedings usually take much
longer. If the decision has not been issued within
6 months, the applicant can apply for a certification, which together with his temporary ID document entitles him to work legally in Poland for a defined period of time.
During the procedure and up to two months after
receiving the final decision in asylum proceedings,
an asylum seeker have a right to social assistance
and medical care. Social assistance can be granted in or out of the refugee camp.
Generally an asylum procedure has five possible
outcomes:
the applicant is granted refugee status
the applicant is granted subsidiary protection
the applicant is granted tolerated stay permit
the application is rejected and a decision
contains a deportation order
the application is determined inadmissible and
the proceedings are discontinued (e.g. in case of
lodging subsequent asylum application based on
the same circumstances)
Asylum seekers, whose application was rejected or
discontinued or who do not agree with a form of
protection granted can appeal within 14 days from
receiving the decision to the Council for Refugees
through the Head of the Office for Foreigners.

47 - It has to be noted that


'asylum' in Polish law differ
from 'asylum' in international
law. Under the law, foreigners
may be granted asylum in the
Republic of Poland if it is
necessary for providing them
with protection and if it is in a
good interest of the Republic of
Poland. This form of protection
is never granted and hardly
applied for. In this report
'asylum' shall mean asylum in
international law.

73

There is also an accelerated procedure in cases


where the application is claimed manifestly unfounded. The application is claimed manifestly
unfounded if for instance an asylum seeker give
other reasons for their application than fear of persecutions or serious injury or they come from a
safe country or give a false statement, conceal information or documents, submit another application on the basis of anothers personal data etc.
Such an application is examined within 30 days,
conducting an interview is not obligatory and an
appeal of a negative decision should be lodged within 5 days.
When an asylum seeker has introduced an appeal
to the Council for Refugees, the Council can:
cancel the decision of the Head of the Office for
Foreigners and grant refugee status, subsidiary
protection or a tolerated stay permit;
cancel the decision of the Head of the Office for
Foreigners and order the Head of the Office to
re-examine the case.
affirm the decision of the Head of the Office for
Foreigners.
The decision of the Council for Refugees is final in
the administrative proceedings. If the application
was rejected, the person has 30 days to leave the
country. One can lodge a complaint against the
decision of the Council for Refugees, within 30
days to the Regional Administrative Court in Warsaw. The complaint does not have a suspensive
effect an asylum seeker howevercan apply to the
court to withhold the deportation order until the
end of the procedure in the court. This Court is
empowered to review the legality of the administrative acts. Against the ruling of the court a cassation appeal to the Supreme Administrative Court
can be lodged. The cassation complaint has to be
prepared by a professional lawyer (e.g. advocate).

1.2. Provisions related


to the application of the
Dublin Regulation
The Dublin Regulation is implemented directly and
generally there are no additional provisions in this
regard. However, in the Polish context the provisions of national law regarding the detention of
asylum seekers are crucial to mention. This is because asylum seekers are often placed in detention after being transferred back to Poland.
Under the law, detention of an asylum seeker is allowable only to:
- establish their identity;
- prevent abuse in proceedings for granting refugee status;
- prevent a threat to other people safety, health,
life or property;
- protect the defence or safety of the state or safety and public order.
An asylum seeker can also be detained when they
illegally cross or attempt to cross the border or en-

74

ter Poland or stay within the territory of Poland without permission (exept for 'directly coming' asylum seekers). So leaving Poland during the refugee
status proceedings constitute a basis to place an
asylum seeker in a detention centre on the basis of the ruling of the court for 30-60 days once
they are transferred back. This period can be prolonged if within this time the asylum seeker received a decision, in which it is stated, that he/she is
refused refugee status, subsidiary protection or a
tolerated stay permit and will be expelled (deportation order). It can also be prolonged if an asylum
seeker got a deportation order before leaving Poland (e.g. his application was examined and rejected in Poland before they left for another European country).
Moreover, if a person seeking international protection does not apply for refugee status after
being transferred back, they can be placed in a
detention centre as an irregular immigrant. When
they then decide to apply for asylum, their stay in
detention centre will be prolonged by the court for
a further 90 days. In any case, the maximum
length of detention cannot exceed one year.
Detention of families with children is commonly applied. Generally children in detention have no access to education. On the other hand, dividing families (placing only some members of the family in
detention) is also a common practice.
The detention due to illegal border crossing is not
obligatory. It means that the court ruling should
contain the justification, why the detention was applicable in a particular case. In practice, the courts'
justifications are typically very poor, insufficient
and lack the exact reasoning.

1.3. Statistics on asylum


claims in Poland
Poland receives most asylum requests from people with Russian nationality (most of them of Chechen origin). In comparison to the year 2009, during which 10,500 asylum seekers applied for
refugee status in Poland, the number of asylum
seekers decreased to 6534 in 2010. The majority
of asylum seekers in 2010 were citizens of the
Russian Federation (4795) and Georgia (1082).
According to the statistics from UDSC (Office for
Foreigners, first instance authority in refugee status proceedings), in 2010 only 82 persons were
granted refugee status, 195 subsidiary protection and 196 a tolerated stay permit. There were
3906 negative decisions issued in the proceedings and 6181 cases were discontinued (this
number covers all the decisions on discontinuance
of proceedings, no matter on what basis they
were issued whether a person left to another EU
country, voluntary returned to their country of origin or gave the same information as in the previous
application for refugee status).
It stands out that an overwhelming majority of
the proceedings result in not granting protection
to asylum seekers applying for refugee status in
Poland.
DUBLIN TRANSNATIONAL PROJECT Final report

1.4. Statistics on the Dublin


Regulation
As mentioned above, Poland is mainly a 'receiving',
not 'sending' country. In 2010, 4863 applications
were directed to Poland to take charge of or take
back an asylum seeker (so called 'in' procedures).
The majority of the requests came from France,
Germany, Belgium, Austria, Netherlands. There
were 4602 positive decisions to such requests,
but only 2131 persons were finally transferred.
This data clearly shows inefficiency in conducting

the transfers on the basis of the Dublin Regulation.


Accordingly, in 2009 there were 4946 applications, 4665 positive decisions of Poland to take
charge of or take back an asylum seeker and only
1987 persons were eventually transferred.
In 2010 Poland directed 107 applications to other
European countries to take charge of or take back
an asylum seeker, as a result of which 61 persons
were transferred. In 2009 Poland made 121 applications and managed to transfer 87 persons.
Detailed statistics can be found below

DUBLIN II (OUT) 2009


DESTINATION
COUNTRY

Germany

DUBLIN II (OUT) 2010

CITIZENSHIP OF THE
PERSON TRANSFERRED

NUMBER OF PERSONS
TRANSFERRED

Azerbaijan
Nigeria
Russia
Vietnam
Lebanon
Syria
Cameroon
Uzbekistan
India

1
1
2
3
2
1
2
1
1

Norway

Iraq
Nigeria
Rsa/nigeria

Sweden

Sudan
Nigeria
Russia

Austria

Nigeria
Togo
Marocco
India
Russia

DESTINATION
COUNTRY

CITIZENSHIP OF THE
PERSON TRANSFERRED

NUMBER OF PERSONS
TRANSFERRED

Germany

Lebanon
Turkey
Vietnam
Russia
Nepal
No Citizenship

3
2
3
3
1
2

Norway

Egypt
Iran
Nigeria/ghana

1
1
1

2
2
1

Sweden

Nigeria
Armenia
Iraq

1
1
1

1
2
4

Greece

Palestine
Syria
Nigeria
Iraq
Afganistan
No Citizenship

1
1
1
1
2
1

Austria

Nigeria
Kyrgyzstan
Russia
Cameroon
Georgia

2
1
5
1
1

Spain

Nigeria

France

Russia
Columbia
Congo

2
1
1

Portugal

Ghana

Italy

Nigeria
Algeria

3
2

Belgium

Russia

Bulgaria

Algeria
Iraq

1
1

17
1
1
1
7

Spain

Nigeria

France

Russia
Armenia
Sri Lanka
Georgia

1
1
1
1

Hungary

Vietnam
China

2
2

Italia

Nigeria

Belgium

Palestine
Russia

Czech Republic

Belarus
Cameroon
Uzbekistan

1
1
1

Slovakia

Vietnam

Hungary

Iraq

Great Britain

Iraq

Switzerland

Sri Lanka

Romania

Russia

Finland

Russia

Total

87

Total

61

Number of the applications made by Poland - 121

DUBLIN TRANSNATIONAL PROJECT Final report

1
14

Number of the applications made by Poland - 107

75

2. Assessment
of the project
implementation by the
partner organization
HFHR decided to have two contact persons working on the project, but there was one person
who did not change throughout the whole project
(HFHR lawyer). The division of the tasks between
the two responsible persons was changing.
Apart from issuing the brochure on asylum procedure and Dublin Regulation implementation in
Poland, the main activity of the project was interviewing asylum seekers and fulfilling followup files on this basis. The majority of the asylum
seekers received from the partner organization
came from Austria. Usually, we proceeded in
such cases as follows:
contact person from the Austrian organization
involved in the project (Asyl-in-not) informed us
about the approximate date of the transfer and
sent by email the follow-up file of the asylum
seeker with the first part completed;
after receiving this information a contact person
from HFHR applied both to the Border Guards
(in case a person was detained) and to the Office managing accommodation centres (in case
a person was not detained) with a request for
information regarding the place of stay;
usually HFHR received an answer after one
month. We contacted the person if their place of
stay was known. Apart from completing the follow-up file, HFHR contact person/persons gave
general legal assistance to the asylum seeker, as
the contact persons throughout the project were
lawyers, whose main professional activity was

providing cost-free legal advice. Asylum seekers received advice not only on issues regarding the Dublin Regulation, but also on the asylum procedure and integration aspects.
The project involved visits in detention centres,
which was in some cases crucial to give legal aid
to asylum seekers. These visits gave an opportunity to meet asylum seekers, in most cases already transferred back to Poland or those who
tried to cross the border of Poland and clarify
some misconceptions held by asylum seekers regarding the implementation of the Dublin Regulation. General information was also given to the
asylum seekers on the HFHR lawyers' duty days,
during which assistance is granted directly in the
Foundation's office. The information mostly included explaining the criteria of determining the
responsible state for examining asylum application, also the Dublin procedure itself, possibilities
to reunite with a family member in another country and detention issues. It is important to stress,
that Poland is mainly a country, to which persons
are transferred back, so their Dublin procedure is
finished (there is no opportunity to appeal from
the decision on transfer). That is why most of the
asylum seekers who were assisted by HFHR or
received appropriate information on Dublin procedure, received them orally (in detention centres
or during the duty hours of the lawyers). If there
was such a need, the lawyer prepared official
correspondence regarding the Dublin Regulation
issues, mostly family reunification back in the
transferring country.
Since there were very few application directed
from Poland to other countries to accept the
responsibility for asylum applications, HFHR did
not direct any asylum seekers to a partner
organization.

Statistics until February 2011 :

76

CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization

223

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

212

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

332

Asylum seekers received from the partner

28

DUBLIN TRANSNATIONAL PROJECT Final report

3.Analysis of the
application of Dublin
at national level
(case studies)
3.1. Return to Greece under
Dublin procedure:
As a result of the ECtHR ruling in the M.S.S.
case, Polish authorities officially suspended transfers to Greece under the Dublin Regulation. Before the ruling, in 2010, 7 asylum seekers were
transferred to Greece and in 2009 none.

3.2. Shortcomings
in the application of the Dublin
regulation
Throughout the project, HFHR worked on cases
which showed some shortcomings of the application of the Dublin Regulation by Member
States. One of the shortcomings concerned the
termination of the responsibility of a country to
examine an asylum claim. The details of a particular case involving this issue is presented below.
Case 1
A case of Chechen woman, who applied for refugee status in Poland on 12.12.2007. On
13.02.2008 she voluntarily went back to her
country of origin, the Russian Federation. On
23.02.2009 she went directly to Norway with her
two small children and applied for refugee status
there. Norwegian authorities applied to Poland to
take her back under Article 16(1)e of the Dublin
regulation. Poland accepted the request on
25.03.2009, although its responsibility ceased,
since the woman had spent more than one year
in her country of origin. The decision on transfer
was made on 10.06.2009 and on 22.09.2009 the
woman was transferred to Poland.
The woman wanted to stay in Norway. She was
aware of the Dublin regulation criteria for determining the responsible state and therefore once
she reached Poland, she kept asking the Dublin
Department to apply to Norway to accept the
responsibility for her asylum application.
Polish Dublin Department applied to Norwegian authorities on 24.09.2009 (two days after
Ms Khedi was transferred), also on 23.10.2009
and on 28.10.2009. On 28.10.2009 Norwegian
authorities answered, that since Poland accepted the request, Poland is the responsible Member State.
Another controversial issue in this case was that
once Ms Khedi and her children reached Poland,
she did not want to apply for asylum, because
she wanted to go back to Norway. That is why on
25.09.2009 the woman was detained with her
DUBLIN TRANSNATIONAL PROJECT Final report

small children as an irregular migrant (due to her


illegal stay) for 60 days. On 24 November 2009
she applied for refugee status while in detention,
which constituted a basis for prolonging her stay
for another 90 days. She was released on 22 February 2010 r. because of her bad mental health
condition she tried to commit suicide and was
taken to the hospital.
In February 2011 the woman and her two children were granted refugee status in Poland.

3.3. Family unity


As Poland is mainly a receiving country in the
Dublin procedure, Dublin cases that HFHR handled mostly concerned reuniting the family in another European country and shortfalls in protection
of family unity.
One of the main areas of concern we noticed
while handling particular cases was the differences in the outcomes of asylum procedures in
European countries. In some cases, an asylum
seeker was granted protection in a particular
country, while a member of his close family did
not, although they applied on the basis of the
same or very similar circumstances. One of the
consequences is the fact that families are being
divided, because of the differences in asylum policy, as in two cases described below. Also, due
to the same reason, asylum seekers keep applying in other countries for international protection after their application is rejected in one of
them.
Shortfalls in the protection of family unity may be
a result of the lack of relevant information on family members in the request to take charge of or
take back an asylum seeker. As Polish authorities
informed us with regard to the second case presented below, they received an application based
on Eurodac hit, they accepted the responsibility
for examining the asylum claim and after the
transfer it turned out, that the asylum seeker
concerned had a family member in the sending
country.

Case 2
The case of a Chechen woman, Ms K, who came
to Poland with two small children and applied for
refugee status on 28.02.2008. Afterwards her
husband Mr S went to Norway and applied for refugee status there. He was granted subsidiary
protection in the first instance proceedings and
his advocate appealed the decision requesting
Mr S be granted refugee status. The wife and
children, after receiving negative decision with a
deportation order on 10.06.2009, joined him in
Norway.
Norway sent the request to Poland for taking
back, giving information in the request, that Mr S

77

was granted a stay permit on humanitarian


grounds. Poland accepted the responsibility. In
April 2010, after transferring them to Poland,
Ms K and the children were placed in a detention
centre. She applied for refugee status again, the
Immigration Office did not agree to uphold the
decision on deportation previously issued.
The Dublin Department re-applied to the Norwegian authorities to accept the wife and children
of Mr S, but Norway refused to apply article 7, article 8 or article 15 of the Dublin regulation.
Eventually, in August 2010, Mr S was granted refugee status by the second instance authorities
in Norway. The Dublin Department in Poland applied again to Norway to take charge of Ms K and
her children. Norway again refused, stating that
under article 5(2), the Member State responsible
in accordance with the criteria shall be determined on the basis of the situation obtaining when
the asylum seeker first lodged his application
with a Member State. And the application of
Ms K was first lodged on 28.02.2008 in Poland
and at that time Mr S did not apply for asylum in
Norway. They also brought up, that on
26.02.2009 Norway applied to Poland under article 8 to take charge of Mr S, but he did not give
his consent to be reunited with his family in Poland and that is why Dublin regulation could not
be applied for family reunification.
The main issue here was that Mr S obtained subsidiary protection and then refugee status in Norway, while Ms K had a negative decision with a
deportation order, was detained and her second
application was discontinued because she gave
no new circumstances in her claim. At that time
she could be deported at any moment. There
was also no possibility to apply for family reunification through the Embassy, because Ms K was
in a detention centre and did not have a residence permit in Poland.
HFHR maintained contact in this case with the
Norwegian Helsinki Committee and also co-worked with Polish NGO Foundation Institute for the
Rule of Law in Lublin. We prepared many official
correspondence to the authorities of the first and
second instance responsible for Ms K's asylum
case, stating that nevertheless Norway was responsible for the case for Ms K and her children
once Poland accepted the responsibility to examine their case, it is Polands responsibility to
keep the family together. If Norway authorities
claimed, that there is a well-founded risk of persecution in the case of Mr S and his wife and children are his closest family (i.e. members of the
same social group) it is unjustified to refuse them
any form of protection and order them to leave
the country.
In our opinion, the case is significant not only with
regard to the right to respect for family life, but
also durable detention of children and respect given to positive decisions on international protec-

78

tion issued by another European country.


After receiving a final decision on discontinuation
of her second proceedings, Ms K applied again
for refugee status, asking to withhold the deportation to Russia. There was an application for interim measures lodged to ECHR and once the
Office for Foreigners got to know about it, the decision on deportation was upheld before ECHR
made a decision in this regard.
In February 2011, after 10 months of detention,
in her third refugee status proceedings, Ms K
and her children got subsidiary protection in Poland. Surprisingly, it was not based directly on the
situation of her husband and the fact of granting
him refugee status in Norway (of which Polish authorities knew already during the second asylum
proceedings of Ms K), but it was justified also by
other circumstances related to Ms Ks sister.

Case 3
A case of Mr V, who was transferred from Austria
to Poland. Mr V. got married under Muslim law in
Austria with a Chechen woman, who has been
granted refugee status. They have a child, which
was born in June 2010. Despite these facts, he
was transferred back to Poland. According to
Polish Dublin Department, Austria in their application for taking back did not mention the fact
that he has a family there, so Poland accepted
the application.
Since the wife of Mr V. and Mr V. did not have the
documents required to get married in Poland,
they married under Russian civil law in Chechnya
by their representatives and in the presence of
witnesses from their families (with special permission from the court received for this purpose).
HFHR lawyer applied to the Dublin department in
Poland to lodge an application under Dublin Regulation to Austria to take responsibility for the
asylum claim. In Article 7 it is stressed, that it shall
apply regardless of the fact whether the family
was previously formed in the country of origin.
However, Austria did not agree to reunite the family under the Dublin Regulation, also under the
humanitarian clause.

3.4. Unaccompanied minors


HFHR worked on several cases of Afghan unaccompanied minors, who came to Poland through
Greece. Before they applied for asylum, they
were considered irregular migrants and were placed in detention for 90 days. Polish law allows for
detention of unaccompanied minors, if they are irregular migrants. If they are asylum seekers, they
should be placed in a children's home in Warsaw.
The Afghan minors applied for refugee status in
detention and were placed in such institution.
Poland accepted the responsibility to examine
their asylum application under article 6 of the
Dublin Regulation.
DUBLIN TRANSNATIONAL PROJECT Final report

3.5. Expulsion and detention


of Dublin returnees
The last available data on detention of Dublin returnees shows, that out of 183 asylum seekers
transferred to Poland in December 2009, 83 were
placed in a detention centre. In January 2011 out
of 186 persons transferred 49 were detained and
in February 2011 out of 183 persons 51 were placed in detention after being transferred to Poland.
As was mentioned beforehand, the basis for the
detention is in most cases illegal border crossing.
Asylum seeker concerned will be then placed in
detention for maximum 60 days. This period can
be prolonged if within this time asylum seeker received a decision, in which it is stated, that they
are refused refugee status, subsidiary protection
or a tolerated stay permit and will be expelled (deportation order). If not, they will be released, placed in an open refugee centre and wait for a decision there.
HFHR handled a lot of cases of asylum seekers,
who received negative decision with deportation
order before they left Poland and went to another
European country. In such situations, upon their
return, they were mostly placed in detention as irregular migrants, for 90 days. Usually they decided to apply again for refugee status. Under the
law, a subsequent application does not automatically withhold the decision on deportation previously issued. The Head of the Office for Foreigners can withhold such decision, but HFHR
lawyers' experience shows that it hardly ever
happens, even in justifiable circumstances. The
subsequent application is often claimed inadmissible and the proceedings are discontinued,
even if an asylum seeker managed to present
new circumstances or new evidence supporting
their asylum claim. As the overwhelming majority
of the cases of asylum seekers met during the visits in detention centres showed, the courts keep
prolonging the detention for another 90 days and
do not provide individualized reasoning in their rulings. Ensuring the effectiveness of the proceedings on expulsion on the basis of enforceable
decision constitute a basis for detention in these
cases. This situation is controversial when these
asylum seekers believe their first application was
not examined properly.

4. Recommendations
at national level
4.1. Implementation
of the project:
Problems:
While implementing the share of our work, we
found it difficult to contact asylum-seekers who
had just arrived to Poland. Especially when they
are detained and kept in the special zone for foreigners at the airport until there is a court hearing
and until they are transferred to the particular
detention centre. At this time, the access turned
out to be very restricted and that is when the asylum-seeker needs support and information. There
have been cases when the Border Guard could
not provide such contact due to practical reasons.
Mainly the contact at the stage of arrival was
possible, if the asylum seeker concerned had a
mobile phone and could call one of the contact
persons in HFHR.
Some of the asylum seekers transferred from
Austria to Poland and whose follow-up files
HFHR obtained, managed to return to Austria or
applied for voluntary return to their home countries. That is why some of the follow-up files
could not have been filled out.
Another problem of an administrative nature was
receiving information on the transferred persons'
place of stay, if they did not manage to contact
HFHR themselves. When there were many asylum-seekers coming gradually in small groups
from Austria to Poland, it took more and more
time for the Border Guards and the main office
managing accommodation centres to respond to
our questions about the place of residence of the
asylum seekers concerned. We have not received
an answer to some of our requests if there were
too many. At the same time the authorities refuse
to give any information over the phone, so the
whole process of getting to know the place of
stay of an asylum seeker we searched for was
sometimes very long.
Benefits:

Illegal border crossing is a small offense, but


when committed with the use of force, threat or
in cooperation with other persons, it is considered a penal offense. Conviction for such offense
committed wilfully results in the lack of possibility
to enter the integration program. This is an additional consequence for Dublin returnees.

The main benefit of the project is improving awareness of the Dublin Regulation issues and providing asylum seekers with information on the
Dublin Regulation and on asylum procedures in
other countries by distributing the information
brochure in various languages.
Another benefit is providing continuous legal and
social assistance to asylum seekers being transferred. Despite the problems mentioned above,
we managed to contact many asylum seekers
shortly after they were transferred back. No mat-

DUBLIN TRANSNATIONAL PROJECT Final report

79

ter detained or not, they were able to contact the


persons responsible for the project in HFHR and
receive advice and aid needed.
The project allowed the exchange of information
on particular cases and on general Dublin Regulation issues with organizations dealing with refugee issues in other countries. This was especially important for some cases of an international
nature. Cooperation helped in gathering information on the law and practice of a particular
State with regard to asylum procedure or family
reunification issues. Creation of the network helped in exchanging good and bad practice regarding the Dublin procedure and related aspects of
the asylum process.

4.2. Implementation
of the Dublin regulation
Problems:
The fundamental problem we noticed in the beginning of the project during conversations with
the asylum seekers is the lack of awareness regarding the main aspects of the Dublin regulation
among them. Asylum seekers transferred back to
Poland very often believed that they had been accepted by another EU country (they were provided with accommodation, social and medical
assistance), but then Poland applied for their return. In such situations they were confused, when
they were not granted any form of protection
and were issued a deportation order.
The only solution to prevent such misunderstandings is to inform the asylum seekers about the
Dublin procedure and the criteria of determining
the responsible state for examining their asylum
application, so that the asylum seekers know
why they are transferred back to the particular
country and also why they should not go to another country, because they will be transferred
back.
Another very important issue regarding the
implementation of the Dublin Regulation is that
many asylum seekers affected by the Dublin procedure are not being granted international protection. The reason is that asylum seekers, who
tried to apply for asylum in another country and
then were transferred back to Poland are automatically treated by authorities rather as an economical migrant than a person in need of international protection. The main argument raised in
negative decisions is that the asylum seeker tried
to improve their economical status instead of
being satisfied by the protection guaranteed by
the first safe country they entered.

procedure if the asylum seeker decides to apply


for such. While visiting the detention centres during the implementation phase of the project, it
turned out the asylum seekers period of stay in
detention were often being prolonged for months
because of the process of obtaining documents
from the transferring country, which were crucial
for responsible actors to organize a voluntary return. The lack of medical documents on the other
hand often made it impossible to provide continuous medical care to the asylum seekers.

4.3. Recommendations
at national level:
Information brochures published within the project should be widely distributed. The website
serves a useful purpose in this regard. This would
allow us to provide asylum seekers with information on Dublin procedure rules before they decide
to leave Poland and go to another country. For
this reason the brochures should be also distributed on border checkpoints, through which asylum seekers enter Poland. Full awareness of the
consequences (transferring back, detention)
would help to decrease the number of asylum
seekers moving through Poland to another country to apply for asylum.
There is a need for further legislation on detention
provisions in order to create clear rules of detention for illegal border crossing and defining an attempt to cross the border illegally.
Being affected by the Dublin Regulation should
not constitute a basis to classify an asylum seeker as an economical migrant. Often leaving
Poland without waiting for an asylum proceedings outcome is motivated by the will to reunite
with other family members abroad so it should
not in any case be automatically considered a
reason for issuing a negative decision in asylum
proceedings. On the other hand, leaving Poland
after receiving a negative decision is often motivated by a will to seek protection elsewhere, because of the shortages of protection offered by
Poland.

Another problem we noticed while implementing


the project is that the transferring countries do
not pass all the necessary documents, including
passports and medical documents. The lack of
passports leads to prolonging the voluntary return

80

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Jesuit
Refugee Service
1. National context:
legislation on asylum
and Dublin. Field
observations and recent
developments
Romanian Immigration Office (RIO), within the
Ministry of Administration and Interior, is the responsible authority who applies the asylum and
aliens legislation in Romania. Dublin Regulation is
applied by the Romanian Immigration Office
the Directorate for Asylum and Integration (ORIDAI), through its specialized department: the Dublin and EURODAC department.
The Dublin Regulation was transposed into national legislation in 2006, before accessing the
EU. The application of the provisions related to
Dublin Regulation began in 2007.
The Dublin Regulation was not completely transposed into national legislation. Even if the Regulation can be directly applied, the fact that it was
not completely transposed makes judges reluctant to apply the provisions which were not transposed. Moreover, the lawyers and the asylumseekers do not know all the provisions and cannot
make use of all the rights foreseen by the Regulation. Due to all the aspects mentioned above,
the national authorities can apply as they consider
the provisions of the Dublin Regulation, especially
the ones in favour of the asylum-seekers as the
criteria for the determination of the responsible
state and the humanitarian clause. Even if during
the first period of application of the procedure, the
persons who had to be transferred were not placed in detention, this practice changed during
2009. Since then, persons due for transfer are
placed in detention for different periods (from several days to several weeks) of time in order to be
transferred to the responsible state.
In 2009, the Dublin transfers to Greece were suspended by the competent court (local Court) in
three cases. No transfer to Greece was decided
by RIO-DAI after that even though no official position was published. In March 2011, RIO-DAI published the official position of the Romanian Government who suspended all Dublin transfers to
Greece and stated that the Romanian authorities
granted access to the Romanian asylum procedure in all such cases.
DUBLIN TRANSNATIONAL PROJECT Final report

In the cases of persons whose first asylum procedure finished while they absconded without
having an interview for the determination of their
refugee status, if transferred from another state
back to Romania, they are treated as illegal aliens
and taken in detention in order to be removed
from the territory. There is the risk that those persons are returned to the country of origin without having their asylum claim assessed.
In order to convince the authorities to grant access to a new asylum application, and the
chance for an effective asylum procedure, JRS
Romania has counselled and assisted in different
ways such cases: administrative requests addressed to RIO, advocacy, appointment of lawyers for legal representation in court, third party
intervention representing the JRS position on effective access to asylum procedure.

2. Assessment
of the project
implementation by the
partner organization
JRS Romania has implemented the project with
the help of JRS Romania legal counsellors who
provided legal assistance in detention centres
and at Pedro Arrupe open centre. The identification and assistance of the cases was made in
collaboration with lawyers and NGOs who assist
asylum and migration related cases.
The cases assisted were identified during the
monitoring visits, in collaboration with lawyers
and partner NGOs and sometimes at RIO notification.
The national meetings were organised in three
main locations: Bucharest, Arad and Timisoara
due to the high frequency of cases assisted in
those regions.
A meeting with lawyers, NGOs and UNHCR was
organised in Bucharest in order to inform and
strengthen the collaboration with them on the
assistance of the cases identified.
Many of the asylum-seekers who cross the border to Hungary and are returned under Dublin

81

procedure pass through Timisoara and are sent


back to an open centre or to a detention centre
(like the closed centre in Arad).Two separate
meetings were organised in Timisoara and Arad.
In Timisoara, the participants were local court
judges dealing with Dublin cases and RIO DAI
who runs an open centre for asylum-seekers.
In Arad, JRS organised a national meeting with
representatives of the courts dealing with deten-

One of the most efficient tools used within the


project was the collaboration with project partners and with other NGOs assisting asylum-seekers in the Dublin countries.

CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization

43

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

43

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

43

Asylum seekers received from the partner

3. Analysis of the
application of Dublin
at national level
(Case studies)
The Dublin Regulation was not completely transposed into national legislation. Amendments of
the asylum legislation are necessary in order to
harmonize it with the EU acquis and in order to
guarantee the just application of the Dublin Regulation.
The majority of the cases assisted by JRS Romania were asylum-seekers who were transferred
to Romania and taken to detention centres because their asylum procedure in Romania ended
when they absconded. Due to the fact that national asylum legislation requires for asylum-seekers to be present at each administrative and judicial stage of the procedure, as well as that they
cannot be represented but only assisted in Court,
it happens that in cases when they abscond the
files might be closed since they are not present
and the procedural terms are not respected.
In the case of an asylum-seeker from Afghanistan, returned from Germany under the Dublin
Regulation and placed in detention, a request for
access to a new asylum procedure was drafted
and submitted. RIO rejected the request and in
addition did not grant access to the territory.
Following an appeal submitted by the claimant

82

tion and migration issues (Court of Appeal), prosecutor, RIO in order to inform them about the
practice developed within the project and in order to advocate and promote the effective access
to the asylum procedure.

the Local Court granted access to the territory


until the end of the asylum procedure.
In the case of an asylum-seeker from Afghanistan, returned from Belgium under Dublin Regulation, whose age was under 18 (according to a
copy of the birth certificate) but was not confirmed by a medico-legal expertise from United
Kingdom, he was placed in detention despite the
recommendation of UNHCR Romania and JRS.
After six months of detention he was released
and accommodated at JRS open centre (Pedro
Arrupe). A request for access to a new asylum
procedure was submitted but RIO did not grant
access to the territory and to the asylum procedure. Appeal was submitted in due time.
Exception: In the case of an asylum-seeker from
Afghanistan, returned from Belgium under Dublin Regulation, he was taken into detention because his asylum-procedure ended as he did
not follow the procedural terms. Due to the collaboration with JRS Belgium and his appointed
lawyer, the Tribunal reconsidered the recourse
submitted by the asylum-seeker since he had
well founded reasons for not being present: he
was placed in detention in Belgium awaiting return. The asylum-seeker was granted a form of
protection.
The humanitarian clause, the family and community connection are not transposed in the Romanian legislation and the asylum-seekers (often
the lawyers and the judges too) do not know
DUBLIN TRANSNATIONAL PROJECT Final report

what provisions are favourable and entitle them to


rejoin their family or community.
In the case of an Afghan asylum-seeker, transferred from France under Dublin Regulation, he
was taken into detention upon return because his
asylum procedure ended when he absconded.
JRS Romania collaborated with CIMADE (France)
and his appointed lawyer in Romania. The person
was suffering from PTSD attested by the medical
reports in France and by the psychologist at the
detention centre. He was released after 30 days
following the exception of unconstitutionality submitted, which has a suspenseful effect on the detention order. He was accommodated at the JRS
open centre (Pedro Arrupe) where he received legal and social counselling and medical assistance. As he was tolerated on the Romanian territory, he had to renew his visa on a monthly
basis. He was seized by RIO Directorate for Migration and taken to the detention centre in order
to be returned to his country of origin. Due to the
fact that he was taken into detention on a Friday
late in the afternoon and had no possibility to
contact anybody in order to contest the detention
order, he was returned the following Monday without access to legal counselling and effective remedy. His brother who was recognised as a refugee in the United Kingdom had sent him photos
and documents in order to submit a new asylum
application but it was too late.
Even if at the beginning of the application of the
Dublin Regulation, the persons who had to be
transferred were not placed in detention, the
practice has changed since 2009. In some cases,
the asylum-seekers were taken into detention in
order to be transferred to another country.
The fact that the appeal against a transfer decision does not have a suspensive effect may lead
to situations in which the persons taken into detention are transferred even if they have submitted an appeal and their file is pending at the relevant court. Moreover, the time allowed to
submit the appeal is 2 days and if the person is
taken into detention when the transfer decision is
communicated, there is no effective possibility to
have access to legal counselling.
According to Romanian asylum legislation, if the
transfer was carried out and the court upholds
the appeal and cancels the transfer order, the arrangements for the readmission of the person
have to be done by RIO.
Effective access to the asylum procedure is not
guaranteed for all asylum-seekers and the administrative and judicial practice is not uniform. In
some cases, the fact that there was no interview
when determining the need for refugee status
was appreciated as a reason for granting access
to a new asylum procedure. In other similar cases
the access to a new asylum procedure was rejected. There were even cases when persons
DUBLIN TRANSNATIONAL PROJECT Final report

were transferred from one country to another without ever having an interview or access to legal
counselling and were finally transferred from the
responsible state awaiting the return to their
country of origin.
In the case of an Afghan asylum-seeker, returned
in Romania according to Dublin Regulation, he
was taken into detention because his procedure
was finished. He submitted a request for access
to a new asylum procedure and RIO-DAI granted
him the access reasoning that he had not had a
refugee status interview. He was released from
the centre and accommodated in a reception
centre for asylum-seekers and refugees.
The practice was different in the case of another
Afghan asylum-seeker returned from Denmark
to Romania, under Dublin Regulation, and taken
into detention as his asylum procedure finished.
He submitted a request for access to a new asylum procedure, as he had not had an interview in
the first procedure, but his request was rejected.
In the case of another Afghan asylum-seeker
transferred to Romania, under Dublin Regulation,
he stated that he had passed several EU countries where he had been taken into detention without ever having an interview about the reasons
for having left his country of origin. After having
asked for asylum in Romania he left the territory,
went to Austria via Hungary and asked again for
asylum. As he left Romania before having an interview and his asylum procedure was suspended in Austria, awaiting the determination of the
responsible state, when he was returned to Romania his asylum procedure had been finished
without having a fair and efficient procedure.

4. Recommendations
at national level
There is a great need for information and legal
counselling among asylum-seekers before being
transferred and even more afterwards.
There is a need for information sessions and training for judges, lawyers and Immigration Office
officers.
The Dublin Regulation has been applied since
2007 in Romania and the legislative aspects do
not always correspond with the practice.
.

83

Organization: Comisin
espaola de ayuda al refugiado
1. National context:
legislation on asylum
and Dublin - Field
observations and recent
developments
According to asylum law every foreigner (not citizen of an EU country) can apply for asylum, based on Spanish and international law. The asylum
law, Law 12/2009 of October 30 rules the Right
to Seek Asylum and the Subsidiary Protection
(Substitutes Law 5/1984 of March 26 on the
Right of Asylum and the Refugee Status, also
modified by Law 9/1994 of 19 of May), establishes that the national authority mainly responsible for asylum issues is the Office of Asylum and
Refuge (OAR is its acronym in Spanish). It depends on the General Sub-Direction of Asylum of
the Interior Ministry and is in charge of registering
the asylum applications, interviewing asylum seekers and preparing cases before the Inter-ministerial Commission or Eligibility Commission.
OAR also refers asylum seekers and refugees to
refugee reception centres (CARs is the acronym
in Spanish). If the person submits the application
in the provinces the police authorities register
the cases, collect the personal information and
any documents or pieces of evidence that the
person may have, contact legal assistance for the
interview and submit the cases to the central authority on asylum, OAR for the evaluation of the
case.

to persons that do not fulfil the requirements for


refugee status, but about whom there are sufficient elements to consider that the person is at
a real risk of suffering grave damages to his/ her
life, personal integrity or grave threats provoked
by an armed conflict or generalized violence.
According to statistical data published by the
Asylum & Refuge Office with regard to 2010. In
Spain there were 2,738 asylum seekers: 2,155
applied for asylum inside the territory, 300 at the
Borders, 213 in CIES (Detention Centres for Migrants) and 70 in Spanish Embassies.
According to recent changes in legislation, manifestly unfounded asylum claims can now be
rejected at the preliminary assessment phase of
the asylum procedure (resulting in a significantly
larger discretion for authorities to reject asylum
claims without any on-merit assessment and with
limited possibilities of seeking legal remedy
against such decisions.) It means that the rate of
asylum claims admitted rose to 2,174 but unfavourable decisions from the Inter-ministerial Eligibility Commission on Asylum and Refuge rose
to 1,816 granting refugee status to just 260 asylum seekers, Subsidiary Protection to 351 and a
residence permit for humanitarian reasons to 20
persons.
In 2010 we had 75 sending decisions under Dublin II Regulation.

Dublin regulation
The regulation that will implement the law is pending approval, thus the previous regulation is still
temporarily in use, as long as it does not contradict the new law and in case of contradiction, the
law is applied directly. Now is a period of readjustment, while institutions and other stakeholders get used to the new law and the new regulation is approved.
The different forms of protection existing in
Spain are Conventional asylum, Subsidiary
protection and Special protection for humanitarian reasons.
The Spanish Government amended the
content of the Subsidiary protection. With
the new law the benefits of the subsidiary protection status are similar to those of refugee status. According to article 4 of the law, it is given

84

In Spain the Dublin II regulation is an admissibility procedure. The OAR functionary or the police
asks identity data and the travel route. If the asylum seeker is in the territory they will be documented and then admission to the procedure
will be taken within two months. If the Asylum
and Refuge Office deny access to the procedure
the asylum seeker will be asked to leave the
country. If they dont comply with this they will remain illegally but not detained and not returned to
their country.
An asylum seeker under Dublin who submit the
application at the borther will be usually admitted
to enter the country due to the accelerated deadlines. The asylum seeker will not be detained,
even if they are at the border.
DUBLIN TRANSNATIONAL PROJECT Final report

The asylum seeker may not be detained during


the decision-making process. Usually they are
sent back to the first European country or accepted to enter into the territory to decide upon
their admissibility to the procedure.
If they are inside the territory when the transfer resolution is ruled they will be asked to leave the
country. If they stay, they will live in the country without permission or a working permit and the
police can initiate an expulsion procedure which
lasts for 6 months until last decision, which can
be appealed before the Courts. In these cases
they can be detained in an Alien Detention Centre until they can be sent back to their country
(maximum time for detention is two months).
Spanish legislation allows for suspending
the implementation of the decision in an individual case, the National Appeal Court can
decide to suspend the transfer until they rule a
decision against the transfer, in cases where an
appeal has been lodged.
There are no special provisions against the transfer of vulnerable persons or persons affected by
a psychological or a physical disease but if the
person has dependant relatives in Spain or is in
conditions of vulnerability they are usually admitted into the procedure.
When the asylum seeker is transferred in Spain
(responsible state for examining the asylum application) the application is dealt with through
OAR Dublin Unit and the person is admitted to
the procedure as any other asylum seeker. The
person is not detained upon arrival. They are
sent to the emergency reception facilities run by

the Red Cross upon arrival to Spain. There they


receive information about the procedure in Spain
(first asylum application or the continuation of
the asylum procedure). They are identified with
the red card as asylum seekers and have access
to reception facilities.
Take back: the person is not admitted to the asylum procedure and he/she is invited to go to the
responsible country of the asylum claim. Sometimes the person is given a plane ticket. He/she
is not detained to force them to leave, but remains illegal.
When the transferred asylum seeker arrives in
Spain he/she is treated in terms of reception as
any other asylum seeker. The person is not detained. Family unity will be a criteria for the accommodation facilities and the province chosen.
The steps to be undertaken by the asylum seeker depend on the following:
- If he/she has already applied for asylum in the
country. The process will continue as it started.
- If he/she hasnt applied yet for asylum in the
country. The person will decide whether to apply for asylum or not. Otherwise he/she will be
submitted to the regular foreigners law. In
Madrid they are informed of the asylum process in Spain, and they will be interviewed if
they choose to apply. The rest of the procedure
continues as with any other asylum seeker.

2. Assessment of the project implementation


by the partner organization

CATEGORY

NUMBER

asylum seekers under the Dublin procedure


assisted by your organization

46

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

46

asylum seekers directed to a partner

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

46

Asylum seekers received from the partner

DUBLIN TRANSNATIONAL PROJECT Final report

85

CEAR had two different contact persons working


on the project. The first from December 2009 to
April 2010 because she left CEAR and the second from April 2010 up to now.
Apart from issuing the brochure on asylum procedure and Dublin Regulation implementation in
Spain, the main activity of the project was interviewing asylum seekers and processing followup files on this basis. The lawyers in the different
provinces in Spain also filled in the follow-up files
and shared all information regarding asylum seekers under the Dublin regulation with the coordinator of the project in Spain.
According to the Asylum and Refuge Office in
Spain we just have information about sending but
not receiving decisions. Most of the asylum seekers under the Dublin regulation are not forced to
return to another country so they stay in Spain as
illegal migrants until they can apply for a residence permit (three years living in Spain continuously).
We had just one case in March 2011 where the
Police asked the asylum seeker (Palestinian from
Syria) if we will comply with the Asylum Office resolution to be sent back to Norway as the flight
ticket is expensive and they did not want to lose
the money.
The asylum seeker did not want to go back to
Norway but it was difficult to decide if we should
tell the truth to the Police as he is living in an accommodation flat managed by CEAR so the Police can find him there.

3. Analysis of the
application of Dublin at
national level (case
studies)
Spain is mainly a receiving country and not a
sending country.
- Spain had already implemented the Dublin
Convention as well as an evaluation of the system carried out by the European Commission,
the UNHCR, ECRE, Amnesty International and
others.
- In Spain we did not find cases of asylum-seekers transferred without respecting the right to
be informed on the procedure before removal.
DETENTION
i. Asylum-seekers transferred to Spain under the
Dublin procedure (from countries such as Belgium,
France, Norway) have reported that they have been
detained in the sending countries even when after a transfer decision had been taken they actually wanted to go back to Spain. For example, an
asylum-seeker waiting to be transferred to Spain
was detained for more than two months in Belgium
after having declared to the police, prior to his
transfer, his desire to go back to Spain.

86

ii. Good practices: Detention is not used, even to


solve the problem of the absconding of asylumseekers subject to a transfer decision in Spain. In
Spain, detention is never applied, neither prior to
transfer nor if a negative answer from the country in question is received.

FAMILY UNITY
i. Concerning the concept of family, in Spain
stable unmarried relationships are recognised,
which is good practice. In Spain, it is even sufficient to provide in the absence of a legal document an official declaration of the concerned
partners to demonstrate their relationship.
ii. There is not a procedure or an established
protocol for tracing family members in Spain, nor
in other European countries, and the authorities
do not support asylum seekers on this matter in
a concrete way. Sometimes NGOs can give their
support in tracing family members, but it is not a
regular procedure.
iii. The Asylum and Refuge Office declares that
it immediately contacts the other Member States
if a minor or other asylum seekers have declared
the presence of family members in Europe.

SOVEREIGNITY CLAUSE
i. Spain has declared that the sovereignty clause
is applied on rare occasions, for vulnerable people or to guarantee the family unit. In 2009, the
Asylum and Refuge Office (OAR) applied the sovereignty clause in the case of a pregnant woman
dependent on her partner with whom she maintained an unmarried relationship. The partner and
father of the child was a legal resident with regular employment in Spain. This case should be
considered as a good practice.
We do not know another case, nor does the
UNHCR in Spain.
According to Asylum and Refuge Office information Spain does not apply the sovereignty
clause as asylum seekers will not be forced to go
to the other EU member state as the Police has
the mandate to notify them the resolution to be
sent back but they cannot detain or force them
to comply with this resolution. In these cases, the
asylum seeker will not have access to international protection as their asylum application is not
admitted when applying Dublin II Regulation. After 6 months that can be extended to 18 months
the asylum seeker can apply for asylum again in
Spain and Dublin II Regulation cannot be applied
again. During this period, from 6 to 18 months
the asylum seeker will be considered as illegal migrant in Spain.

HUMANITARIAN CLAUSE
i. In Spain, the clause has not been used recently. No case has met the relevant criteria. Article 15 is applied on the basis of the criteria established in the Dublin II Regulation. In these
cases the Asylum and Refuge Office apply the
DUBLIN TRANSNATIONAL PROJECT Final report

same criteria as for the Sovereignty clause. The


problem in these cases is that there is not a special procedure for vulnerable people within the
Asylum System in Spain, or if the Dublin II Regulation is applied. There are not criteria to define
whether an asylum seeker has to be considered
in a vulnerable situation. For example, Spain accepts to receive or send pregnant women.
The Asylum and Refuge Office have explained to
CEAR that when they consider the asylum seeker is in a vulnerable situation they do not start
the Dublin Procedure.
According to our data and experience and the information UNHCR in Madrid gave us, the Asylum
and Refuge Office applies the Dublin II Regulation
automatically when they register the asylum claim
as they have to pass the application through the
Dublin filter (theres not a specific application for
Dublin cases but in each application there are
specific questions regarding Dublin II Regulation,
called the Dublin Filter). Within the next 8 days
from the registration of the application the Asylum
and Refuge Office verifies the information with
Eurodac. If they apply Dublin II Regulation the application is not admitted and they must notify it to
the asylum seeker within 1 month.

VULNERABLE ASYLUM-SEEKERS
i. UNACCOMPANIED MINORS. In Spain, the
Asylum and Refuge Office (OAR) declares that the
age assessment is provided by the prosecutors
office. In reality practices vary in the different autonomous communities, but the Greulich and
Pyle studies, sexual characteristics and dental
examination are frequently used. Nevertheless,
the refusal to submit to a medical examination
does not prevent the authorities taking a decision
on the application for international protection.
1. Bad Practices: In Spain there is no particular procedure for vulnerable Dubliners, even
if Dublin Units declare that they receive the assistance needed. According to the new Law on
asylum and subsidiary protection Law
12/2009 of 30th October 2009 there is a specific rule for minors and for other vulnerable
groups but no particular procedure for vulnerable Dubliners is included.
2. According to the information provided by the
Asylum and Refuge Office, Spain doesnt apply
Dublin II Regulation to Minors so Spain refuses
sending decisions from other EU members.

TRANSFERS
i. Bad Practices:
1. In Spain, the admissibility procedure is extended by one month for Dublin cases. This is
notified to the applicant but notification does
not include information about the reasons why
the extension is made. This means that only if
the asylum-seeker is assisted by a lawyer or by
a specialized NGO will he/she be able to understand that the extension has to do with a
Dublin hit.
DUBLIN TRANSNATIONAL PROJECT Final report

2. In Spain, the average time taken to carry out


a transfer after responsibility is taken by another Member State is 3 to 6 months (with a minimum of a month and a maximum of a year).
3. Often, the receiving country is not informed
of the ongoing transfer or is not provided with
the necessary details (for example if the person
concerned is a minor) in a timely manner.
4. In Spain, on some occasions asylum-seekers have arrived unaccompanied, while in
others, authorities have been notified of the
transfer with only one days notice. Finally, there
have been few cases of families transferred
with children who were not included in the acceptance request.
ii. Good practices:
1. With regard to receiving asylum-seekers after transfer, in Spain, it is the Red Cross that receives asylum-seekers at Barajas airport and
provides them with useful information regarding
the Dublin procedure.
2. In Spain, after an inadmissibility decision is
taken, information on travel arrangements is given to the applicant during an interview carried
out by the Police Unit in the Asylum Office in
charge of the transfer.
3. In Spain, asylum-seekers who have previously asked for asylum normally have direct
access to the procedure upon transfer. If the
procedure was discontinued, it is reopened
and the applicant is documented as an asylumseeker as soon as he or she presents him/herself at the asylum office. If the procedure is instead pending, the procedure is continued and
the person is automatically considered an asylum-seeker. Therefore, it is only in the cases in
which the person had not asked for asylum or
in which he/she had his claim rejected that
there is not an automatic or facilitated access
to procedure: nevertheless the person has in
any case the possibility to lodge a new claim as
soon as he arrives in Spain.
4. Providing applicants with laissez-passers facilitates the taking back procedure after transfer. States applying this measure are Spain,
Germany, Sweden and Italy.

TIME LIMITS FOR TAKING CHARGE AND


TAKING BACK PROCEDURES
i. Good practices:
1. In Spain, asylum-seekers whose cases trigger the submission of a take back request to
another Member State are documented as
asylum-seekers until a positive response from
the concerned Member State allows the Spanish Authorities to reject the case at the admissibility procedure. If the rejection is not formalized before the timeframe for reaching a
decision at the admissibility stage (2 months),
asylum-seekers are automatically admitted to
the on-merits procedure and continue to be
documented as asylum-seekers until the case
is closed. However, in order to avoid automa-

87

tic admission of the cases which are awaiting


a response from the Requested Member State,
the 2 month time limit of the admissibility procedure is extended by one month: this is notified to the applicant.
2. As a matter of fact, most Spanish jurisprudence is based on the application of the positive silence principle by virtue of which cases
should be automatically admitted to the onmerit procedure. Jurisprudence also focuses
on relations between Dublin and National timeframes.

Case studies
1.- Mr. Rami, from Syria, came to Europe through
Norway with a Spanish Visa issued in Syria. Norway sent him to Spain despite the fact he has
mental health problems. In Norway he was imprisoned for two weeks. Once in Spain he applied for
asylum but the OAR ruled the application inadmissible as he applied first in Norway. As he is living in a CEAR accommodation flat the Police
spoke to our social worker there. They bought
the flight ticket to Norway but wanted to know if he
will take the plane to avoid the expenditure if we
were going to stay in Madrid.
He wanted to go to Romania by bus but we explained to him the problems he will face if the Police in other EU country find him.
He does not want to go back to Norway as he
thinks they will deport him back to Syria where he
is under persecution from the authorities.
Now, he is still living in Spain without any kind of
permit. After six months, he can apply for asylum
again if persecution is still ongoing in Syria.
2.- Mr. Abuh, a Palestinian from Bethlehem, West
Bank, came to Spain directly from Bangkok in
2010. He did notwant to stay in Spain because
two of his brothers live here and they do not have
a good relationship. We assisted him in the first interview in the office and went with him to apply for
asylum in the Asylum and Refugee Office (OAR).
The OAR didnt admit the application as they applied Dublin procedure ruling to send him to
Luxemburg as he had a visa issued by The Netherlands (Embassy in Bangkok).
We submitted an admission report as he has two
brothers living in Spain with their family. His brothers have had Spanish nationality for more than
20 years.
They rejected the admission and didnt take into
consideration his family links with Spain. He has
not been deported.

88

4. Recommendations
at national level
HUMANITARIAN CLAUSE
i. Spain does not use the clause to prevent transfers to Greece. Article 15 has to be applied even
if transfer is not executed by force.

VULNERABLE ASYLUM-SEEKERS
1. There should be a particular procedure for
vulnerable Dubliners, even if Dublin Units declare that they receive the assistance needed.
According to the new Law on asylum and subsidiary protection Law 12/2009 of 30th October 2009 there is a specific rule for minors
and for other vulnerable groups but no particular procedure for vulnerable Dubliners is included.

TRANSFERS
1. In Spain, the admissibility procedure is extended by one month for Dublin cases. This is
notified to the applicant but notification does
not include information about the reasons why
the extension is made. This means that only if
the asylum-seeker is assisted by a lawyer or by
a specialized NGO will he/she be able to understand that the extension has to do with a
Dublin hit.
2. Legal assistance should be ensured to
Dubliners upon arrival as social assistance is.
3. In Spain, the average time taken to carry out
a transfer after responsibility is taken by another Member State is 3 to 6 months (with a minimum of a month and a maximum of a year).
4. Often, the receiving country is not informed
of the ongoing transfer or is not provided with
the necessary details (for example if the person
concerned is a minor) in a timely manner.
5. In Spain, on some occasions asylum-seekers have arrived unaccompanied, while in
others, authorities have been notified of the
transfer with only one days notice. Finally, there
have been few cases of families transferred
with children who were not included in the acceptance request.

DUBLIN TRANSNATIONAL PROJECT Final report

Organization: Swiss Refugee


Council
1. National context:
legislation on asylum and
Dublin - Field observations
and recent developments
The asylum procedure is regulated in the Swiss
Asylum Act of 16 June 1998. Detention is regulated in the Federal Act on Foreign Nationals of
December 16, 200548.

1.1. Inadmissibility decision


According to Art. 34 al. 2 lit. d of the Swiss Asylum Act, in accordance with the Dublin regulation,
normally Swiss authorities do not examine the
merits of the case if another state is responsible
for the asylum procedure. In cases such as this,
the Federal Office for Migration takes an inadmissibility decision. The asylum seeker has the
right to be heard on the planned transfer to the
responsible Dublin member state (art. 36 para. 2
Asylum Act).

1.2. Appeal
According to Art. 107a of the Swiss Asylum Act,
an appeal against a Dublin-inadmissibility decision does not automatically have suspensive effect. However, it is possible for the asylum seeker to ask for suspensive effect within the appeal
deadline (5 working days). The Federal Administrative Court decides within another 5 days whether or not to grant suspensive effect. This means
that during these time periods, the asylum seeker
cannot be returned to the other Dublin member
state. This specific provision has been included in
the Asylum Act, enacted on January 1, 2011. It
transforms the findings of the Federal Administrative Courts leading case in February 2010 into
legal obligation.
Until February 2010 asylum seekers were usually
transferred to the responsible European country
immediately after receiving the decision from the
Federal Office for Migration. Therefore it was often impossible to contact a legal advisory office,
lodge an appeal and receive a decision from the
court granting suspensive effect in time. But on
2 February 2010, in the case of an Afghan asylum seeker represented by OSAR, the Federal
Administrative Court issued a landmark case deDUBLIN TRANSNATIONAL PROJECT Final report

cision that this practice is unlawful49. The court


held that the asylum seeker must have the opportunity to lodge an appeal and ask for suspensive effect; and the court must have the opportunity to decide whether or not to grant the
suspensive effect before the asylum seeker is to
be transferred.

1.3. Summary of the landmark


case decision of the Federal
Administrative Court (TAF)
of 2 February 2010
The landmark case is about an appeal the Swiss
Refugee Council filled in on September 15, 2009
in a case where an 18 year old Afghan man was
sent back to Greece after receiving a negative
Dublin-decision by the Federal Office for Migration (first instance body).
The day the notification of the decision was delivered, the lawyer applied to the TAF requesting
the suspensive effect for the appeal and applied
for interim measures to immediately stop the removal. It was granted by the TAF the following
day with the reasons that it would be questionable whether or not asylum seekers would have
access to a fair asylum procedure in Greece (a
fact that could lead to refoulement), that Greece
would be under a considerable strain of receiving
asylum seekers and therefore asylum seekers
are at risk of living in overcrowded camps under
inhumane conditions without medical and social
provisions or they could be confronted by the risk
of being homeless due to lack of accommodation
which would be a well-founded indication of a
breach of article 3 of ECHR. The problem was
that the Federal Office for Migration removed the
asylum seeker immediately after the notification of
the decision (and during the time granted for an
appeal). When the TAF was informed about the
situation it ordered the first instance body to immediately take back the asylum seeker. Unfortunately the person concerned was untraceable.
The TAF judged now that the client has still a legitimate interest in a judgment from the Swiss
Court even though he was now abroad because
this would be foreseen by the Dublin Regulation.
(The fact that the client could no longer be
contacted shows the difficulties involved in accessing an asylum procedure in Greece).

48 - Both laws are


available in English online:
www.admin.ch/ch/e/rs/1.html.

49 - Federal Administrative
Court, decision of 2 February
2010, E-5841/2009, in German,
http://www.bvger.ch/publiws/do
wnload?decisionId=333f883ea589-4754-bd8e-3a4f8257a868.

89

The TAF judged that the Federal Office for Migrations notification of the Dublin decision by
fax to the lawyer while the decision was disclosed
personally to the client was inadmissible. Therefore they did not consider the countdown against
the time allotted before the appeal deadline had
begun. A decision must be notified by registered
mail to the lawyer. There is no legal ground for
orally notifying a decision to an asylum seeker
who is represented by a lawyer.
The TAF judges that the Federal Office for Migrations practice of removing asylum seekers
immediately after the opening of the decision
breaches the right to an effective remedy as written in the Swiss Constitution (article 29a) and
the ECHR (article 13 in combination with article
3). According to Swiss Asylum Law, an appeal
against a Dublin-decision has no suspensive effect. However, a suspensive effect can be applied
for before the TAF if there is well-founded evidence of a breach of fundamental rights as stated in the ECHR committed by the responsible
Dublin-state (article 107a Swiss Asylum Law).
According to the judgment, not only a well-founded fear that a breach of the ECHR will occur but
also a breach of other fundamental rights as stated in other international conventions such as
article 3 of the convention against torture or article 33 of the Refugee Convention (risk of chain
refoulement) can be reasons for applying suspensive effect.
The TAF adds that in the due process of such an
application, the asylum seeker has to be in Switzerland when the appeal and request for supsensive effect are filled and judged by the TAF.
This can only be guaranteed if the Federal Office
for Migration does not issue an immediate removal. As a result, the Federal Office for Migration
must wait until the asylum seeker and/or the lawyer has had the possibility to make an appeal
and the Court has made a decision about granting a suspensive effect to the appeal.
The TAF does not define how long the Federal Office must wait until it can remove an asylum seeker to the responsible Dublin-State. They propose
that this waiting time should be as long as the time
allotted for Dublin-appeals which would be 5 working days (article 108 Swiss Asylum Law).
In its judgment the TAF analyses the jurisprudence of the ECtHR (Conka, Saadi, T.I., Gebremedhin, Kudla, K.R.S) and recommendations of
the Council of Europe, as well as the proposal of
the European Commission to recast the Dublin
regulation.
Although the practice has improved, it must be
added that currently asylum seekers are often detained between the notification of the decision
and the transfer. In detention, access to legal
advisory services can be difficult (see below under Detention).

90

Art. 3.2 Dublin Regulation


On January 26, 2011, the Federal Office for Migration publicly announced that with immediate
effect it will largely refrain from sending asylum
seekers to Greece. If an asylum seeker had the
possibility to access the asylum procedure in
Greece, and if they had accommodation there,
there will still be a Dublin procedure. This decision
follows the ECHR judgment of MSS v. Belgium
and Greece, however, the Federal Office for Migration did not mention this decision in its announcement. OSAR basically welcomes the
FOMs decision but does not see any room for
exceptions as stated by the FOM, given the
ECHRs clear ruling in MSS.
Otherwise, there are no general rules as to how
art. 3.2 is implemented. The FOM is reluctant to
transparently show its criteria for using the sovereignty clause. In OSARs view, it is problematic
that even vulnerable persons like unaccompanied
minors or families with small children are transferred to Dublin states with insufficient reception
conditions, e.g. Italy and Malta. It is often only
stated in a very general manner that the other Dublin member state has ratified all the relevant human rights conventions and therefore respects its
obligations. Especially with unaccompanied minors it is problematic that the Swiss authorities do
not systematically and individually ascertain that
they will be accommodated in adequate structures in the responsible Dublin state.
Art. 15 Dublin Regulation
OSAR does not know of any general criteria for
the humanitarian clause to be implemented by
the Swiss authorities. In some cases, the Federal Office for Migration has only considered family
relatives in accordance with the narrow definition
in Art. 2 lit. i Dublin Regulation in deciding which
member state is responsible. In some of these
cases, the Federal Administrative Court then stated that the authorities should also have taken
into consideration the presence of other relatives
such as siblings in Switzerland.

1.4. Notification
As of January 1, 2011, Dublin inadmissibility decisions can be notified directly to the asylum seeker, even if he/she has a legal representative (art.
13 para. 5 Asylum Act). Notification shall be made
to the legal representative immediately. It is so
far unclear how this measure will be put into
practice. The direct notification to the asylum
seeker can be problematic especially if the asylum seeker is in detention and the legal representative is not informed or cannot get in touch
with that person in time to discuss and submit an
appeal.

1.5. Detention
Up until 2011, the regular legal grounds for extradition detention have also been applied to Dublin cases. On January 1, 2011 specific legal
DUBLIN TRANSNATIONAL PROJECT Final report

provisions on detention for Dublin cases have


come into effect:
- Preparatory detention before the decision for
up to 6 months if the asylum seeker has denied
passing through a Dublin member state, having
a right to stay or a visa, or having made an asylum application in one of those states, art. 75
para. 1bis Federal Act on Foreign Nationals
(FNA).
- Detention pending deportation after a Dublin
inadmissibility decision for up to 30 days if the
execution of the transfer is foreseeable, art.
76 para. 1 litera b number 6 and para. 2 FNA
In addition, if other grounds for detention are fulfilled, they can also be applicable to Dublin cases.
In practice, asylum seekers are often detained
between the notification of the decision and the
transfer. Access to legal advisory services can be
difficult for asylum seekers in detention. This is
problematic especially in cases where the reception conditions in the responsible Dublin state
are not sufficient (e.g. in Greece, Italy, Malta) or if
there is a risk of indirect refoulement by the Dublin state to the country of origin without examination the merits of the asylum application (e.g.
Greece).

1.6. Transfer
Cases have been reported where the execution
of Dublin transfers by cantonal police authorities
were not appropriate. The asylum seekers, including families, are often picked up at their residence very early in the morning, accompanied by
a whole team of police officers. Thus far it is not
known whether the mental and physical condition
of the person to be transferred is sufficiently taken into account.

Direct applicability of
Dublin Regulation provisions,
especially 6 month transfer
deadline: Leading case
decision of the Federal
Administrative Court
of 29 June 201050
In this very long decision (44 pages), the court
states that an asylum seeker can invoke a provision of the Dublin Regulation directly if that provision is self-executing. A provision is self-executing
if it is sufficiently precise and clear, if it is aimed at
the authorities applying the law and if its purpose
is the protection of the asylum seekers rights. According to the court, art. 19.3 and 19.4 as well as
art. 20.1 d) and 20.2 of the Dublin Regulation are
sufficiently precise and clear and aimed at the
authorities applying the law. Furthermore, their
purpose is to protect the asylum seekers rights:
specifically, the right to an examination of the asylum claim within a reasonable time limit. Therefore,
DUBLIN TRANSNATIONAL PROJECT Final report

the asylum seeker can invoke these provisions of


the Dublin Regulation. If the transfer deadline has
elapsed and the asylum seeker is still in Switzerland, basically the asylum seeker can demand
that the authorities assert that Switzerland has become responsible for the asylum procedure under
the Dublin Regulation (except in cases of abuse of
rights). However, if the person has already been
transferred to the other Dublin state despite the
lapse of the transfer period of six months, and according to the circumstances if it appears that the
state in question still accepts its responsibility for
examining the asylum application, there is the (refutable) assumption that the state will also live up
to this responsibility. In this particular case, Italy
still considered itself responsible, even though
the transfer deadline of six months had elapsed.
According to the court, the applicant has not
brought forward anything to refute the mentioned
assumption. Therefore, the Federal Office for Migration was correct in denying the application for
reconsideration.

1.7. Statistics51
There were a total of 15,567 new asylum applications in Switzerland in 2010. There were 7,321
Dublin procedures of which there were 5,994
out- and 1,327 in-procedures.
Of the out-procedures, in 5,095 cases the requested member state agreed to take charge or
take back the asylum seeker, 853 declined. 2,722
persons were transferred. The vast majority of
asylum seekers in the Dublin procedure were
transferred to Italy: 2,782 out-procedures, 1,368
transfers. Other significant out-procedures were
Austria, Greece, Germany, France, Poland and
Spain.
Of the in-procedures, in 797 cases Switzerland
agreed to take charge or to take back the asylum
seeker and 514 cases were declined. In total, 481
persons were transferred to Switzerland.

2. Assessment of the
project implementation by
the partner organization
General comment: As an umbrella organization,
the Swiss Refugee Council normally does not
provide individual legal advice or take over representations in individual cases, only in exceptional, landmark cases. Generally, we coordinate
and support our member organizations, who provide legal advice to asylum seekers and take individual cases. There are no numbers available as
to how many asylum seekers were assisted by
our member organizations.
In several cases, information and contacts of
partner organizations were given out to persons
asking for advice; even if not in all the cases the
individual follow-up file was used.

50 - Federal Administrative
Court, decision of 29 June 2010,
E-6525/2009, in French,
http://www.bvger.ch/publiws/
download?decisionId=
ec43d3b2-5e47-4efe-bbb288dabee8bac6.
51 - Annual asylum statistics
of the Federal Office for
Migration, 2010,
p. 18 and 58-63,
http://www.bfm.admin.ch/
content/dam/data/migration/
statistik/asylstatistik/jahr/2010/
stat-jahr-2010-f.pdf.

91

CATEGORY

NUMBER

asylum seekers under the Dublin procedure assisted by your organization

General information and contact addresses


given to several persons during our legal
information phone hours, 2 afternoons
per week

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

2 out-cases by our partner organizations; 1 in-case


from Luxemburg

asylum seekers directed to a partner

At least 5 (2 out-cases and 1 in-case


with follow-up file)

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

No numbers available. Information and advice


provided to several asylum seekers by our member
organizations in the course of their daily work.

Asylum seekers received from the partner

Information given to organizations in Luxemburg,


Belgium and Germany regarding asylum seekers
to be transferred to Switzerland. One case referred
by Greece after the transfer from Switzerland,
one case of an asylum seeker in detention
in Switzerland referred by partner organization
in Belgium and directed to a legal advisory service
(but without follow-up file).

3. Analysis of the
application of Dublin
at national level
3.1. Main problematic
aspects:
- It is problematic that even vulnerable persons
such as unaccompanied minors or families
with small children are transferred to Dublin
states with insufficient reception conditions,
e.g. Italy and Malta. Especially with unaccompanied minors it is problematic that the Swiss
authorities do not systematically ascertain that
they will be accommodated in adequate structures in the responsible Dublin state. Example:
a young, illiterate Roma woman with a small
child who was abused by her husband and his
family will be transferred to Hungary, even
though she fears retribution by her husbands
relatives in Hungary. The Swiss authorities are
of the opinion that she can get protection in
Hungary. The legal representative connected
the Hungarian Helsinki Committee with this
case by the individual follow-up file.

48 - Cour Fdrale
Administrative, dcision
du 29 Juin 2010, E-6525/2009,
en franais,
http://www.bvger.ch/publiws/do
wnload?decisionId=ec43d3b25e47-4efe-bbb2-88dabee8bac6.
49 - Statistiques annuelles
sur lasile de lOffice Fdrale
pour les Migration,
2010, p. 18 et 58-63,
http://www.bfm.admin.ch/
content/dam/data/migration/
statistik/asylstatistik/jahr/
2010/stat-jahr-2010-f.pdf.

92

- For asylum seekers in detention, access to legal advisory services can be difficult. This is
problematic especially in cases where the reception conditions in the responsible Dublin
state are not sufficient (e.g. in Greece, Italy,
Malta) or if there is a risk of indirect refoulement
by the Dublin state to the country of origin without examination of the merits of the asylum
application (e.g. Greece). In this regard, it is
also problematic that decisions can be notified
to asylum seekers directly, even if they have a
legal representative (see above 2. on notification). Example: In March 2011, a Nigerian asy-

lum seeker received his decision in detention


and could not contact the legal advisory service in time to make an appeal during the
deadline of 5 working days. Subsequently, he
was transferred to Greece. This is especially
problematic as it happened after the ECHR
judgment in MSS.

4. Recommendations
at national level
4.1. Implementation
of the project:
Benefits:
- Creation of a brochure to inform asylum seekers about the asylum and Dublin procedure
- Network and contacts in other Dublin member
states facilitated by the project
- Possibility of individual follow-ups in certain
cases, especially for vulnerable persons
Shortfalls:
- For OSAR the participation in the Dublin-Project is a pilot experience as it is the first EUProject that OSAR has participated in. Until
now we have not taken part in activities that
include so many different players.
- At the beginning of the project period many issues remained unclear. This lead to the entire
process being delayed. The first step the development of tools for dissemination within
the network took a long time.
- OSAR also faced some difficulties as an associated partner. Many issues needing special
regulations, proposals or additional coordination had to be discussed with the coordinator.
In some aspects it was not clear whether
DUBLIN TRANSNATIONAL PROJECT Final report

costs and expenses would be covered by European Refugee Fund or whether OSAR had
to finance it. Production of the brochures was
especially affected by this. These uncertainties
led to further delays.
- As OSAR does not handle individual cases,
OSAR needs to involve the network of legal
aid offices. These offices are very interested in
the project, but as with every new system, attentive care and assistance are needed on
OSARs behalf in order to implement the project on the Swiss national level.
- Rather than maintaining only a limited number
of partners, OSAR would like to see more
partners in additional countries be included in
the second project (application under ERF having been submitted in December 2010). The
readiness of the Swiss authorities to disseminate the brochures depends on the provision
of leaflets regarding all member states (internal guidelines of the Swiss Federal Office for
Migration).

The gaps in the legal aid system are problematic: in asylum cases, free legal aid financed
by the state is hardly ever granted, especially
not in the first instance procedure. Therefore,
asylum seekers depend on the services of legal advisory offices run by NGOs. These resources are limited and therefore legal support
cannot be granted to every person in need.
Considering the short deadlines for filing an
appeal within the Dublin procedure, this is especially pertinent for persons in detention
where access to legal advice is often impossible. The Swiss state should therefore take
more responsibility in order to guarantee that
proper legal support is available to all asylum
seekers who need it.

4.2. Implementation
of the Dublin Regulation:
Positive developments:
The Federal Administrative Court has issued several decisions on the Dublin procedure that improved and clarified Swiss practice.
Recommendations for improvement:
The FOM should refrain from transferring persons, especially vulnerable persons, to countries where adequate reception and access to
a fair and efficient asylum procedure are not
guaranteed. In these cases, it should make
use of the sovereignty clause.
The FOM should pay more attention to the circumstances of individual cases rather than
generally stating that there are no reasons
that speak against the transfer to certain
countries. They should more often make use
of the sovereignty clause and the humanitarian clause when appropriate, e.g. if family
members are present in Switzerland. In this
context, the notion of family should be applied
more widely.
The opportunity for voluntary departure should
be given more often; detention should only be
applied as a measure of last resort.
No chain transfers: Switzerland should only
ask the state responsible under the Dublin Regulation to take into custody or to take back
the asylum seeker. If return to that country is
not reasonable, it would be easier for Switzerland to apply the sovereignty clause rather
than ask another state where the asylum seeker has passed through. This contravenes the
Dublin system's idea that only one state
should be responsible for an asylum procedure
and that asylum seekers should not be continually pushed around.
DUBLIN TRANSNATIONAL PROJECT Final report

93

94

DUBLIN TRANSNATIONAL PROJECT Final report

Conclusion
Considering the objectives of the project,
the expected results have been achieved:
the tools have been created and implemented (the tools are available on the project website).
The information booklets concerning the
asylum procedure (including, among other
things, the application of the Dublin regulation) in each partner organizations Member
State have been translated into different
languages : Arabic, Russian, English, Farsi,
Somali and French.
The individual follow-up file for asylum seekers under a Dublin procedure, specifically
created for the project, is now systematically
used by the partner organizations for the follow-up of persons under the Dublin procedure.
Thanks to this project, a shared working
method within the organizations has been
created at both national and European level.
In this way, a closer monitoring of Dublin
cases has been set up on the European level. This assures a continuous follow-up for
asylum seekers under a Dublin procedure
transferred to another European country.
One major value of the network is that it
simplifies the research for up-to-date information on the national asylum systems.
Consequently, the organizations capacity to
better provide for asylum seekers needs
and better defend their rights is increased.
The network benefits from regular exchanges between partners about national
legislations and practices.
As a result, some associations, on a national and European level, have expressed
their interest in participating in this network
in order to assure support and care of the
transferred persons. Partnerships agreements have been signed with some organizations. This expands the existing partners
network. Some newly joined associations
are : Aitima (Greece), The Hessen Refugee
Council (Germany), PIC (Slovenia) and the
UK Refugee Council (United Kingdom).
DUBLIN TRANSNATIONAL PROJECT Final report

The natural expansion of the network can


be regarded as evidence that the resources
developed and the working methods enacted can be adapted to all European countries by implementing a real systematization of their use.

Some observations
Certain partner organizations signaled that
they were confronted with a difficulty in identifying persons under Dublin, this was either
because they were not informed about arriving transfered persons or because they
found it difficult to gain access to asylum
seekers in detention centers. It is important
to note that, for example, persons under a
Dublin Regulation are placed in detention
centers and transferred within very short timeframes, this prevents the organizations
from fully accompanying these asylum seekers. Once the transfer is executed, it can be
extremely difficult for organizations to access asylum seekers in detention centers
because of issues regarding authorization or
other logistic reasons (remote centres for
example).
The lack of cooperation with State authorities could, in certain countries, present problems. Some non-governmental organizations have displayed reticence regarding the
project, in that they consider participation in
the project is a form of acceptance of the
Dublin Regulation. However, once again, it is
clear that the project does not support or validate the Dublin system. On one hand, we
work to compensate the dysfunctionments
and its negative impact for asylum seekers,
on the other hand, we are working to defend
the rights of asylum seekers.
Certain practical difficulties have also been
observed related to the use of the individual
follow-up form. Unfortunately, due to a lack
of time and possibility of having an interpereter, occasionally it is difficult for some partner organizations to fill out the form in a
complete and thorough fashion.

95

Follow-up table of asylum seekers project period

96

CATEGORY

TOTAL
(NUMBERS COMMUNICATED BY THE PARTNER
ORGANIZATIONS FOR THE PROJECT )

asylum seekers under the Dublin procedure assisted by your organization

924

asylum seekers under the Dublin procedure who


benefited from an individual diagnosis

717

asylum seekers directed to a partner

45

number of asylum seekers who received


an appropriate information on Asylum
and the Dublin procedure and benefited from
an orientation interview

1 355

Asylum seekers received from the partner

44

DUBLIN TRANSNATIONAL PROJECT Final report

Recommendations
to improve project
implementation
This project has enabled the creation of a genuine European network, which moreover is now
growing, to ensure suitable support for asylum
seekers under the Dublin procedure and effective, efficient follow-up of transferred people.
This project, which involves a large number of
partners, proves that tools can be used in all European countries and that their use could therefore be truly systematic throughout Europe.

asylum seekers concerning access to the procedure in the responsible State. By nature, the
efficiency of a network depends on its size and
density and this is true on a European as well as
national scale. It is therefore important to extend
the network throughout Europe to other Member States. Nationally, the network can be extended to include the largest possible number of
reception structures providing support for asylum seekers.

1. A brief information brochure explaining the


project and its goals may suffice to convince an
asylum seeker to join the project and authorise
the use of the individual follow-up sheet and its
transmission to a partner organisation in the
event of transfer. The follow-up sheet enables
better communication between the association
and the asylum seeker, providing more detailed
information on the various procedures. It also
helps the asylum seeker to identify a trust-worthy NGO in the State responsible for his application or in any other State to which he may be
transferred.

2. To improve the efficiency of the brochures,


it is possible that national brochures may be separated into two. One You are under the Dublin
procedure in country X brochure, corresponding
to part 1 of the current brochure and one You
are being readmitted to country X brochure,
corresponding to parts 2 and 3 of the current
brochure. This separation would make the information easier to read and provide the asylum
seeker with information directly relevant to his situation.

3. The extension of national brochures to other


Member States, particularly those who receive or
readmit significant numbers of Dublin asylum
seekers (UK, Germany), would provide assistance for the majority of cases. The translation of
these information brochures into other languages
would also enable a larger number of asylum
seekers to be properly informed. The brochures
currently exist in six languages. These brochures
must be promoted as broadly as possible, particularly in the points of entry into the country (airport, port, station, etc.). National brochure information must be updated regularly.

4. The creation of the network to counsel and


assist asylum seekers under the Dublin procedure improves the support provided to readmitted asylum seekers. It also offers a guarantee for
DUBLIN TRANSNATIONAL PROJECT Final report

97

Recommendations
concerning the
Dublin Regulation
and its application
1. The hierarchy of the Regulations implementation criteria must be reviewed as a priority. The
Dublin system criteria are unfair in that they impose
an additional charge upon EU States with external
borders. We must depart from a purely administrative interpretation of the Regulation and favour
links of any kind whatsoever (family ties, linguistic
abilities, cultural ties, etc.) between an asylum seeker and a State.
2. The States must respect the principle of family
unit, without limiting the definition of family members to those already present in the country of origin. A broader definition of family members must
be adopted in order to ensure the respect of each
individual to family life. The principle of family unity
must be applied in all situations in which an asylum seeker can be considered as being dependent
(emotional or material dependency).
3. Effective identification mechanisms based on
common criteria must be set up to enable the
identification of asylum seekers and the subsequent provision of a suitable solution. We must
provide for better consideration of the specific
needs of certain asylum seekers, whose vulnerability is incompatible with transfer conditions and
the difficulties of actual implementation of the Regulation.
4. Full information must be provided in a language
understood by the asylum seeker. He must have
access to information on the operation and implications of the Regulation and his rights. This information should also include information on the
transfer country. Furthermore, asylum seekers
must be informed of the reasons behind the
States decisions on their procedures to ensure
that their situations are properly understood.
5. The coordination and exchange of information
on Dublin cases and the national asylum systems
between Member States must be improved to
enable transfers to be anticipated (suitable assistance provided upon arrival in the responsible
country) and to ensure continuity in the legal, social and medical follow-up of asylum seekers.
When a transfer is enforced, the States must
transmit all documents concerning the asylum
seekers (passports, medical documents, etc.) to
the authorities of the transfer State.

must be favoured and minors and vulnerable persons must not be placed in detention under any
circumstances.
7. Asylum seekers under the Dublin procedure
must be considered as fully fledged asylum seekers and therefore benefit from the same reception
conditions (social welfare, medical care, accommodation, etc.). This also includes the presence of
a lawyer at the interview with the authorities, or at
the very least, a written report of the hearing for
presentation to a lawyer.
8. In compliance with the ruling of the European
Court of Human Rights in the MSS case, application of the Dublin Regulation must never be systematic. Conditions in the transfer State must be
taken into account by the returning State before
any transfer decision is made. A transfer suspension mechanism must be provided for cases
where the level of protection provided to applicants
is deemed insufficient and/or a large influx of asylum seekers into a State has seriously deteriorated
the said States reception and protection system.
9. The right to effective remedy must be provided
against transfer decisions. This effective remedy includes the systematic, suspensive effect of appeals. The appeal must be considered as an integral part of the asylum procedure. Furthermore, in
order to assert their rights, asylum seekers must
have access to free legal assistance.
10. A personal interview must be organised by the
authorities when the Dublin procedure is launched
to inform the asylum seeker of the procedure and
its consequences and what can be done to notify
of a situation that would prevent readmission to
another European State. The conflicts that exist
between the procedural deadlines applied under
Dublin and those applied by the Member State
must also be resolved to be favourable to the asylum seeker in every case.
11. The humanitarian clause in article 15.1 of the
Dublin Regulation must be applied as broadly as
possible.
12. Access to free, effective healthcare and to
universal health cover must be guaranteed through
all phases of the procedure and in all Member
States.
13. The Regulation must not be applied to unaccompanied minors and their transfer must only be
authorised for the purposes of family unity and only
then in the childs best interests.
14. Effective access to an asylum procedure must
be guaranteed to all asylum seekers. Application
of the Dublin Regulation must not represent an
obstacle to the right to asylum.

6. Detention must be used as a last resort measure. Alternative measures that do not deprive of
freedom must be favoured. In practice, it appears
that the notion of escape is abusively interpreted
by the States. The organisation of voluntary returns

98

DUBLIN TRANSNATIONAL PROJECT Final report

DUBLIN TRANSNATIONAL PROJECT Final report

99

Partner organizations
(and relevance of the project for the organizations)
Asyl in Not
AUSTRIA
Asyl in Not fights for the maintenance of human
rights and for the reestablishment of the basic
right of political asylum and combines both legal
and political work. The main tasks in the field of
legal advice for our clients are
- legal actions against negative adjudications
- preparation and support for interrogations and
for trials at the asylum court
- legal actions and prison visits in cases of detention and arrest through aliens police
- Securing of psychotherapy places
- Help with accommodation
- Consultation for rejected or refused refugees
and
- Legal support for accepted refugees
As asylum law is changed frequently, further complicating the situation of refugees and asylum
seekers, legal advice in asylum cases became a
difficult and complex concern. Only through individual, and engaged consultation will refugees
have a chance of accessing justice.
Asyl in Not holds about 3000 legal consultations
and conducts about 600 to 700 legal actions.
The team is small, but successful. About 50 to 70
proceedings have come to a positive conclusion;
the clients receive political asylum or another status in Austria.
Since the Dublin Regulation became part of European legislation, Asyl in Not has fought against
this breach of the Geneva Convention because it
means for many refugees that they cannot take
advantage of the rights they are entitled to.
Practice in Austria also seems to violate the principles of human rights, especially Art 2, 3 and 8
of ECHR and even grave violations of the Dublin
regulation itself, for instance with regard to the
unity of the families.
So for Asyl in Not the project was from a political
point of view a good chance to point out the
inhumane practices of Austrian asylum authorities
in the use of the Dublin regulation and a hope to
improve the general situation for asylum seekers
in a Dublin procedure.

100

With regard to work for individual clients it was


also a chance to improve the situation for those
clients who were deported to the responsible
Dublin state. On the one hand the clients knew
that there was another NGO which would take
care of them so they were less afraid of being
deported; on the other hand the general reception conditions and the legal support in cases of
deportation were improved.
Finally the general networking between the NGOs
taking part turned out to be very helpful too, especially concerning the exchange of judicature,
which helped us in our every day work for our
clients.

Flemish Refugee Action


BELGIUM
Flemish Refugee Action (FRA) is an independent, non-governmental organization that defends the rights and interests of refugees and
asylum seekers. FRA works with over 40 member organizations and relies on the support of
numerous enthusiastic volunteers. Its main goal
is to raise awareness about the situation of refugees and their protection needs.
The Refugee Convention, the Universal Declaration of Human Rights and the European Convention on Human Rights are its guiding principles.
In practice this work is based on four pillars, namely: influencing public opinion, pressuring policy makers, supporting everyone who assists
refugees (professionals and volunteers) - and
stimulating the cooperation among these organisations and volunteers. This happens through
media campaigns, creative actions and lobby
work, along with the provision of expert information, training and publications to everyone
who, professionally and voluntarily, works with,
assists or counsels asylum seekers and refugees. Through its projects FRA tries to cover
the different stages of what it means to be a refugee: social and legal support upon arrival and
during the asylum procedure, shelter, integration and return. Finally, FRA mobilizes organisations and individuals to cooperate and to improve the quality of the assistance offered to
asylum seekers and refugees.
DUBLIN TRANSNATIONAL PROJECT Final report

The Dublin project gave FRA the opportunity to


focus on a different stage, namely the first moments of arrival and the request for protection.
The application of the Dublin convention always
raised many questions, a feeling shared among
other Belgian NGOs and the partners in the Dublin-project. This project allowed the needed information sharing to be more structured and allowed us to explore new ways of assisting
refugees.
On the policy and public opinion level, the information sharing between the partners of the project is an important source for being able to detect and signal certain issues. The project also
allowed FRA to a certain extent to consult the relevant Belgian officials and to get more clarity on
the application of the Dublin Convention.
On the level of assistance for professionals and
volunteers who work with refugees, the information sheets on the asylum procedures and application of the Dublin convention are a new
source of information that was not easy to find
before. FRA believes that instruments made for
a follow-up of individual Dublin cases could become an important aspect of the assistance of
each refugee for whom the Dublin convention
applies.

Irish Refugee Council


IRELAND
Established in 1992, the Irish Refugee Council
(IRC) is the longest established NGO in Irelands
refugee and migrant sector. The organisation is
the most authoritative and credible voice in the
field of asylum in Ireland. It has demonstrated expertise and commitment, particularly in relation to
separated children, direct provision and asylum
policy. The matters that the IRC has focused on
have become causes for concern and attention
both within the NGO sector and by the State. Indeed, the Council has played a crucial role in effecting important improvements in all its areas of
operation for many thousands of people in the
Irish asylum process.
Much of the Irish Refugee Councils work centres
on the area of advocacy and capacity building.
Capacity building focuses on civil servants and
other key personnel in refugee policy or practice
areas, refugee legal practitioners and NGOs
which specialise in this field. The IRCs advocacy
concentrates on a number of distinct yet interrelated groups: civil servants, politicians, media
and the public. The IRC also undertakes a limited amount of casework. The cases are drawn
from people at various stages of their protection
claim, as well as people with issues related to the
system of support and accommodation for protection applicants (known generally as Direct
DUBLIN TRANSNATIONAL PROJECT Final report

Provision). In addition, we have staff that specialise in childrens work, communications and
European asylum case law.
The Irish Refugee Council and the Transnational Advisory and Assistant Network for
Asylum Seekers under a Dublin Process
Since its entry into force, the Dublin II Regulation
has become a significant instrument in the Irish
asylum process. Irelands very location an island on the western edge of Europe means that
we are very rarely the first European country that
a person seeking international protection enters.
Therefore, many asylum seekers have previously
held visas of some description in other EU member states or may in some cases have previously
sought asylum in another member State and may
thus be subject to transfer under the Dublin II Regulation.
Consequently, the Transnational Advisory and
Assistant Network for Asylum Seekers under a
Dublin Process has the potential to be a valuable
network for ensuring a continuity of care for asylum seekers transferred from Ireland to another
EU state under the Dublin II Regulation.

Italian Council
for Refugees
ITALY
The Italian Council for Refugees (CIR) is an independent, humanitarian and non profit-making organisation, founded in 1990 under the patronage
of the United Nations High Commissioner for Refugees (UNHCR). CIR works with the aim of empowering and co-ordinating actions in defence of
refugees and asylum seekers' rights in Italy, in
particular in favour of vulnerable groups of people such as women, victims of gender based
violence, unaccompanied minors and victims of
torture. Among its members CIR counts important humanitarian associations and organisations,
the three main Italian trade unions and national
and international research institutes. CIR is a
member of the European Council on Refugees
and Exiles (ECRE), as well as of the Euro-Mediterranean Human Rights Network (EMHRN). CIR
has been carrying out extensive lobbying activity
with Parliament and the Government to pass a
national comprehensive law on asylum.
Its main office is located in Rome. The organization runs several projects funded mostly by the
European Commission, the Italian Government,
and the private sector, in favour of asylum seekers and refugees during all stages of the asylum
procedure as well as integration in the Italian territory. CIR also co-ordinates various sub-offices in
different cities across Italy, particularly at nevralgic entrance borders.

101

The Dublin project is particularly important in the


Italian context as Italy is an EU Member State with
many unofficial external borders and therefore
one of the countries more affected by the arrival
of boat people. Due in particular to Italy being a
receiving country, CIR is assigned many cases:
consequently, this project is significant because it
provides the opportunity to be informed and monitor the phenomenon at a European level also.

Forum rfugis
FRANCE
Forum rfugis is a non-profit-making association
(established under the 1901 law) working to welcome refugees and defend the right to asylum. Based in Lyon, it was founded in 1982 when several
associations (Secours Catholique, SSAE, Climade,
Entraide protestante, Centre Pierre Valdo, Sonacotra) came together to create an organisation
specifically intended for the protection of refugees.
Forum rfugis is a recognised and privileged player in the asylum field, and works in
cooperation with both public and private
partners, at national, European and international level.
Accommodating asylum seekers in reception centres
The association, which runs a transit centre, and
two Reception Centres for Asylum Seekers
(CADA) located in the Rhne, lAllier and Puy-deDme, and a Temporary Accommodation Centre
(CPH) for statutory refugees, can accommodate
843 people at a time and provides 300,000
nights of accommodation per year. The asylum
seekers placed in our reception centres receive
legal support and social assistance throughout
the entire asylum procedure. On several occasions, Forum rfugis has participated in emergency reception operations, such as the Kosovan refugee operation in 1999 and the action for
Kurdish refugees aboard the East Sea in 2001.
La maison du rfugi
In Lyon, Forum rfugis has integrated all its
services for asylum seekers and refugees in one
location in order to simplify the process and provide better access to assistance. The centre offers support at every step of the asylum procedure (reception and accommodation, assistance
outside of the reception centre, support for individuals whose asylum claims are refused). Since
22nd February 2011 Forum rfugis runs also a
reception platform in Nice.
Integration of statutory refugees
In 2002, Forum rfugis launched the Accelair
programme which aims to improve the conditions of, and the capacity for, the integration of
statutory refugees. Accelair helps refugees to
access and retain work and accommodation.

102

The programme is approaching the end of its seventh year and has rehoused 3,500 people to
date in the Rhone dpartement.
Health
In 2007, Forum rfugis joined forces with Parcours dExil to put in place a European project
entitled ESSOR (Extension and reinforcement of
Parisian and regional health care systems). One
of the outcomes of this project has been the
creation of the first health centre in the RhoneAlps region specialised in the care of trauma
and torture victims.
Law Expertise
Through its active monitoring of asylum policy, its
use of legal action, and its participation in research projects, Forum rfugis works to ensure the efficiency of the right to asylum.
Specialist groups, which meet once a month
and are made up of experts from different services of the organisation, continuously examine
a wide range of issues including European matters, regulation at national level, social and health
matters, and accommodation and employment.
Actions undertaken
by Forum Rfugis for asylum seekers
under a Dublin procedure
The association runs a reception platform and a
transit center in Lyon.
Persons under a Dublin procedure receive accommodations and are monitored at the Maison
du Rfugi (Refugee House) and at the transit
center.
Forum rfugi decided to launch the Transnational Dublin Project in response to our continued
efforts to deal with the many problems encountered during the assistance of asylum seekers.
The project aims to provide the association's
asylum officers and jurists with tools to improve
asylum seeker counseling services. Also, asylum
officers and jurists can rely on the network of European NGOs which was created as a system of
support.
The Dublin Project is consistent with Forum rfugi's efforts to strengthen our ability to take
into custody asylum seekers under Dublin procedures.

France terre dasile


FRANCE
France terre dasile is a secular and independent
charity association based on the French law
1901. Since 1971, France terre dasile has been
working to maintain and develop one of the oldest French traditions, asylum, as well as guaranteeing that all relevant international conventions are applied within French territory.
By changing their status in 2007, France terre
dasile extended its field of action. The association
DUBLIN TRANSNATIONAL PROJECT Final report

now aims to help all the persons within the framework of migration law, in particular those persons defined as refugees and stateless according to the Geneva Convention of July 28,
1951, the New York Protocols first article of January 31, 1967 and the New York Convention of
August 30, 1961, along with all persons not defined under the refugee or stateless legal status.
Actions undertaken
by France terre dasile for asylum
seekers under a Dublin procedure:
France terre dasile supports asylum seekers under Dublin regulations at different stages of the
procedure.
a) Reception platform
for asylum seekers :
Asylum seekers under a Dublin Procedure do
not have access to the Reception Centre for asylum seekers. The reception platforms made available to asylum seekers under a Dublin Procedure
constitute the primary assistance offered by
France terre dasile.
France terre dasile operates four reception platforms in Paris, Crteil, Rouen and Caen. The
centres in Paris and Crteil are the largest platforms on French territory with 10,000 and 4,000
asylum seekers respectively.
As for asylum seekers under a normal procedure, France terre dasile also provides Dublin
asylum seekers with administrative accommodations as well as legal and social support.
Asylum seekers receive assistance from the beginning of their procedure when they are placed
under a Dublin regulation until their questioning
for the execution of their return procedure.
Reception platforms also receive asylum seekers
who are readmitted to France from another Member State.
b) Actions in administrative
detention centres :
Since December of 2009, France terre dasile
has also been working in four administrative detention centres in Calais, Rouen, Plaisir and Palaiseau. They offer assistance and inform detainees about legal issues. In this context, the teams
aid certain asylum seekers who are under a Dublin procedure and who have been placed in a
detention centre while the administrative process
for their return procedure is being processed. In
some cases, asylum seekers may benefit from legal support and are assisted in the filing of an appeal against their return procedure.
Transnational Dublin Project : an action consistent
with the effort to improve support of asylum seekers under a Dublin regulation.
France terre dasile has been worried for many
years about the situation of asylum seekers under
a Dublin Procedure. The application of this regulation brings about many problems, in fact, the
DUBLIN TRANSNATIONAL PROJECT Final report

Dublin Procedure induces so many problems that


the access to the right to asylum is weakened.
France terre dasile therefore constantly alerts
authorities and works with the public opinion
about this problem.
At the same time, because of these very problems, associations defending the right to asylum
are constantly pushed to reflect on ways to improve their support in this field.
On one hand, legal and material support seems
to be essential considering the insecure situation
of asylum seekers under a Dublin Procedure. On
the other hand, the complexity of the Dublin procedure, the many differences in its application
and the well-known differences between the Dublin Procedure and normal asylum procedure
make this a highly demanding task for asylum law
professionals.
Asylum seekers under a Dublin procedure receive assistance in reception platforms, however,
these platforms are often overloaded with work
and can not assure that all asylum seekers receive the same quality of services as in standard
Reception Centres.
Considering this, one of our association's priorities became the improvement of support for asylum seekers under a Dublin procedure.
For this reason, France terre dasile in collaboration with the Emmas association, opened a reception centre in 2008 for Dublin Procedure or
priority procedure asylum seekers who were refused accommodations in Paris. France terre
dasile manages the administrative and legal support for asylum seekers while Emmas provides
social assistance.
France terre dasile participates in and is involved
in the Transnational Dublin Project in this context.
The association is confronted by the very
concrete problems of a lack of information available to Dublin asylum seekers and the difficulties
related to follow-up procedures in transfer cases.
This project aims to improve the quality of support
services for Dublin asylum seekers in France by
strengthening the association's ability to provide
information and by assuring continuity in asylum
seekers legal, social and material assistance
through a network of European organizations.

Hungarian
Helsinki Committee
HUNGARY
The Hungarian Helsinki Committee (HHC) is an
NGO founded in 1989. It monitors the enforcement in Hungary of human rights enshrined in international human rights instruments, provides legal defence to victims of human rights abuses by
state authorities and informs the public about
rights violations. The HHC strives to ensure that
domestic legislation guarantee the consistent implementation of human rights norms. The HHC

103

promotes legal education and training in fields relevant to its activities, both in Hungary and
abroad. The HHC's main areas of activities are
centred on non-discrimination, protecting the
rights of asylum seekers and foreigners in need of
international protection, as well as monitoring the
human rights performance of law enforcement
agencies and the judicial system. It particularly focuses on access to justice, the conditions of detention and the effective enforcement of the right
to defence and equality before the law. Experts of
the HHC regularly train governmental and NGO
staff on various human rights-related issues in several European countries.
The Hungarian Helsinki Committee (HHC) as
implementing partner of the UNHCR since 1998
coordinates a national network of asylum lawyers who provide free legal assistance to asylum-seekers in Hungary. An HHC lawyer is present in the refugee camp in Debrecen (the only
open reception centre in the country) on a permanent basis. In addition to legal representation
provided to asylum-seekers at the court, HHC attorneys visit immigration jails on a weekly basis
and perform border monitoring at the borders
with Ukraine and Serbia. The HHC also comments regularly on draft legislation in the field of
asylum and immigration on a regular basis and
make continuous efforts to lobby for higher standards in international protection.
The Dublin project is particularly important in the
Hungarian context, as it is an EU member state
with a long extra-Schengen border section and
therefore the first entry point to the EU for many
asylum seekers. Being a member of the Dublin
network, created under this project, enables the
HHC to actively engage in the exchange of information on asylum procedures and practices in
other EU Member States and enables the HHC to
provide more effective counselling to asylum seekers placed under the Dublin procedure. The HHC
is regularly approached by several NGOs from
different Member States, seeking information on
asylum practices in Hungary, in order to be able
to advice their clients who were awaiting their
transfer to Hungary.
The project has also enabled us to create a new
brochure on asylum procedure, which was very timely, since the previous brochure needed to be
updated due to the recent changes in the legislation and practice. The network created under the
project proved to be a valuable support in the
HHCs daily work, since it facilitated the exchange
of information on events and news related to Dublin, but also to share legal advices and opinions
on application of Dublin Regulation. Finally, the
project gave an opportunity to conduct several visits to the immigration jails around the country,
which proved to be essential because the majority of asylum seekers are now detained (indicating
a policy shift).

104

Helsinki Foundation
for Human Rights
POLAND
The Helsinki Foundation for Human Rights, based
in Warsaw, was established in 1989 and is one of
the most experienced non-governmental organizations active in the field of human rights in Central Eastern Europe.
The Legal Assistance to Refugees and Migrants
Program was established in 1992. The Program's
fundamental activity is to provide direct cost-free
legal assistance to asylum seekers, recognized
refugees, persons granted complementary form
of protection, and immigrants, as well as to undertake litigation actions.
The scope of the Program's activity also includes
monitoring and research activities. Lawyers working within the Program prepare expert opinions
on draft legal acts and perform training activities
regarding asylum issues. Their work includes
drafting appeals and other official letters, legal representation in the administrative stages of asylum procedure, interventions in individual cases,
as well as undertaking litigation in the Regional
and Supreme Administrative Court in cases
which can set a precedent in asylum cases.
The project Transnational advisory and assistance network for asylum seekers under a Dublin
procedure (Dublin project) is of high importance
for the Foundation. As was mentioned above, lawyers working in the Legal Assistance to Refugees and Migrants Program have been granting
direct cost-free legal assistance to foreigners
since 1992. Until now, the most numerous group
of the foreigners are asylum seekers. The majority of the activities of the Program have always
concerned asylum seekers and their main purpose was to ensure better protection of the rights
of these persons. The Dublin project is complementary to other international projects and actions, that the Foundation was involved in.
It is crucial to stress, that Poland is strongly affected by the Dublin Regulation. According to
the statistics of the Office for Aliens, from the beginning of the year 2011 until mid-March 2011
there were already 845 applications directed to
Poland to take responsibility for the examination
of the asylum claim, 805 positive decisions has
been made in this regard and 335 persons were
transferred. Poland is a country responsible for
taking back the asylum seekers coming from the
East, who went to another European country
through its territory.
As the experience of the lawyers of the Program
shows, the majority of these asylum seekers are
unaware that they cannot move freely within Europe and have no information about the grounds
on which they are transferred to a particular
DUBLIN TRANSNATIONAL PROJECT Final report

country. An information brochure for asylum seeker turned out to be a very useful tool in our daily
work. Translated to several languages, it allowed
us to inform asylum seekers about the main aspects of the Dublin Regulation, also before they
decided to leave the territory of Poland.
In conclusion, the project is relevant to the Foundation because it involves strengthening the protection of the rights of asylum seekers, which is
a main purpose of numerous activities that the
Legal Assistance to Refugees and Migrants Program undertakes. It also provides for a possibility
to monitor and evaluate the implementation of the
Dublin Regulation, by which Poland is strongly affected and allows for clarifying common misconceptions held by asylum seekers regarding the
main aspects of the Regulation.

Jesuit
Refugee Service
ROMANIA
Jesuit Refugee Service Romania (JRS) is an independent, humanitarian non-governmental organisation, supported by contributions from private individuals and foundations worldwide. It
forms part of JRS International, whose office is in
Rome and JRS Europe, whose Regional office is
in Brussels. JRS Romania was founded in Bucharest, in 1996, in response to the increasing
number of refugees and the needs with which
they were and are continually confronted.
The Mission of JRS is to accompany, serve and
defend the rights of refugees, forced migrants
and asylum seekers, advocating on their behalf
from their first arrival in Romania until they are satisfactorily settled. This mission embraces all persons who are driven from their homes by conflict,
humanitarian disaster or violation of human rights.
JRS priority is to give particular attention to those
whose needs are most urgent and unattended by
others or simply forgotten generally called destitute persons. In spite of the obstacles we encounter in our work with this category of persons,
from a social, legal and financial point of view,
JRS considers that destitute persons deserve
our focused attention, deprived, as they are, of
basic human rights, social policies and often of
NGO assistance.
Destitution describes a situation of total lack of
means to meet ones basic needs such as shelter, food, health or education as a consequence
of the States policy which excludes groups of migrants from enjoying basic rights and receiving official assistance or severely limits their access to
such assistance. Simultaneously, it deprives them
of any opportunity to improve their situation in the
foreseeable future, thus resulting in a continuing
denial of the dignity of the person.
DUBLIN TRANSNATIONAL PROJECT Final report

JRS is also focused on forced migrants and persons kept in detention centers, mostly, rejected
refugees.
Forced migrant: A forced migrant is a person
who is living in a country without holding this
countrys citizenship and cannot return to the
country of origin in safety and dignity because of
reasons such as danger of political persecution or
other human rights violations, danger for life or
health, lack of travel documents, or lack of transport possibilities.
Migrants who have applied for asylum and had
their application rejected receive an order to leave
Romanian territory. However, the majority, for objective reasons, cannot return to their country of
origin and they apply for tolerance in Romania or
submit a new asylum application.
Those who do not apply for status become undocumented persons and, when found, are taken
into public custody by the State i.e. into Public
Custody Centers. In addition, not all persons
who apply for tolerance are granted this temporary stay permit.
In this context, JRS Romania is working to ensure
that failed migrants can access the basic social
rights including accommodation, that persons in
need of protection or forced to return can benefit of free legal counseling and that their voices are
heard.
Thus, JRS Romania is still the only NGO involved
in providing accommodation, social and legal assistance for destitute persons rejected refugees ( in public custody or on Romanian territory).
JRS Romania is running
the following activities:
- Legal and social assistance in public custody
centers and at Pedro Arrupe Centre for detainees and destitute refugees
- Providing Country of Return Information to lawyers, judges and not only in cases of detainees and destitute refugees
- Advocacy and research on detention and destitution
- Providing temporary accommodation at Pedro
Arrupe Centre for destitute refugees
- Social assistance and counseling for destitute
refugees
- Medical assistance and emergency aid for destitute refugees
- Cultural and leisure activities for destitute refugees and detainees (including the internet
room)
- Educational courses for destitute refugees (Romanian classes, PC courses, etc.)
- Integration assistance for the resettled refugees and persons with a form of protection
Relevance of the project
for JRS activities:
Asylum-seekers with file pending in the Dublin
procedure, awaiting the transfer in another country, are taken in public custody in order to reinforce their return.

105

Former asylum-seekers, whose asylum procedure in Romania ended while they absconded
and were returned to Romania under Dublin procedure, were taken in public custody.
Most of the cases assisted by JRS Romania under
this project were foreigners in public custody centre, whose asylum procedure has ended while
being out of the territory. As they were taken in public custody in order to be removed from the territory, and usually had no means to hire a lawyer, JRS
assistance was the only one available, for free.

Comisin espaola
de ayuda al refugiado
SPAIN
CEARs starting point took place during the transition to democracy, but it had started operating
in 1973. CEARs activities basically aimed to defend and help people coming mainly from Chile,
Argentina and Uruguay who were forced to leave
their countries after instauration of dictatorships;
and also to encourage policies to consolidate
asylum rights which at the time in Spain where
not even regulated.
In 1978 Spain became party to the Geneva
Convention and the New York protocol on the
Refugee Statute, International agreements of universal extent on this issue.
In 1979 CEAR was formally constituted.
In May that year the first regulation concerning asylum was brought in, a decree regulating refugees
conditions in Spain; but this regulation is very
concise and with no real contents. During these first
years it survived thanks to the efforts of its members
together with the international support from organizations like the ACNUR, Amnesty International
and the WUS (World University Service).
In 1983 CEAR entered Spains General Budgets
for the first time through agreements with the
Public Administration, and was in charge of managing different governmental programs to assist
asylum seekers and refugees as well as persons
who had asylum granted.
In 1984 CEAR carried out an essential task (proposals were forwarded with the ACNURs cooperation) in establishing the first Asylum Law,
something that was acknowledged in the Laws
description of objectives. In 1984 CEAR acquired
a structure similar to the present one.
From the beginning, CEARs work has been focused on the need to defend the Right to Asylum.
This was its original main aim and continues to be
so in the present day. This protection implies, first
of all, acquiring a stable legal statute and secondly, to acknowledge these persons social
rights in our country.
There is an essential feature to CEAR from its initial moments: its plurality. From its very beginning,

106

CEAR has intended to represent all the social organizations that believe the right of Asylum to be
a fundamental right in all democracies.
CEARs goals are essentially those of the 1951
Geneva Convention and the 1967 New York Protocol, as well as those of the various international
agreements for the protection of human rights together with the Spanish juridical ordinance in accordance with these.
Regarding refugees, a first step to re-establish their rights and to guarantee their dignity as human beings is to acknowledge
the need of international protection and of a
legal statute.
PROJECTS RELEVANCE TO CEAR
Spain is the first entry point to the EU for many
asylum seekers. The fact that the Dublin II Regulation is in itself problematic as it often leaves the
regulation of issues to the different national legislations raises the relevance of this project to
CEAR in order to inform asylum seekers under
the Dublin procedure concerning the asylum system in Spain, ensure access to the procedure, reception, material assistance, support services
and ensure protection to asylum seekers.
We believe that until the Dublin II Regulations negative effects disappear the associations in the
country concerned can be really useful to ensure
a food flow of information concerning the specific situation of the vulnerable asylum seekers
transferred under the Dublin procedure, in order
to ensure continuity of assistance and follow-up
for these transferred individuals between the
transferring country and the receiving country.
The website created within the framework of the
project is a very important tool to create a network of national contact points in charge of the
follow up of asylum seekers transferred under the
Dublin regulation and to develop several information and follow-up assistance.

Swiss
Refugee Council
SWITZERLAND
The Swiss Refugee Council, established in 1936,
is a non-governmental association that is politically and religiously independent and serves as
an umbrella association for all the important
Swiss relief organizations working for refugees
and asylum seekers. Its member organizations
are Caritas (Catholic Aid Org.), HEKS (Evangelic
Aid Org.), SAH (Labour Aid), VSJF (Jewish Aid
Org.), and Amnesty International, Swiss Section.
The Swiss Refugee Council is committed to the
protection and rights of refugees in Switzerland,
it calls and lobbies for fair refugee status determination procedures, refugee integration and a
return in conditions of safety and dignity.
DUBLIN TRANSNATIONAL PROJECT Final report

The protection department coordinates approximately 40 legal aid offices for asylum seekers throughout the country. The legal section
provides information, advice and support to legal
representatives through training and guidance
on best practices. They draft analytical papers on
different legal topics and asylum issues and advocate asylum issues before authorities and political or public stakeholders. They also coordinate
the presence of neutral observers who participate
in asylum hearings. The country of origin analysis
unit researches individual query requests, publishes country reports, and thematic and policy
papers in order to foster objective and fair trials
for asylum seekers in Switzerland.
Relevance of the Transnational
Dublin Project to OSAR
Since being enacted on December 2008 in Switzerland, the Dublin Regulation has become a significant factor in Swiss asylum practice. Given
Switzerlands geographic location, a large part of
asylum seekers receive a negative Dublin-decision because they have passed through other
European countries before arriving at the Swiss
border. Consequently, questions arising from the
application of the Dublin regulation have become
very important for our member organizations who
operate legal advisory offices for asylum seekers
close to reception centers and in different cantons. As an umbrella organization, OSARs role is
to provide these legal advisory groups with accurate information and support. In order to gather
the necessary information and expertise on the
situation in other Dublin member states as well as
the application of the Dublin Regulation, it is crucial for OSAR to exchange with other NGOs in
Europe. This is especially true considering that
Switzerland has been part of the Dublin system
for only a relatively short period of time. Also, sharing jurisprudence and potential legal arguments
is helpful for OSARs advocacy work concerning
the implementation of the Dublin Regulation at
the national level. The network of NGOs set up by
the Transnational Dublin Project has facilitated an
active transnational exchange on legal questions
regarding the Dublin Regulation, practical problems, and individual cases. The information and
contacts obtained through this project have been
very helpful in OSARs routine work.
Furthermore, the informational brochures are a
useful tool for the legal advisors of our member
organizations in their daily consultation work, as
well as to OSARs legal staff when asked for advice in Dublin cases. If the legal advisors deem
that the continuous support of especially vulnerable asylum seekers is necessary, the individual
follow-up file can be a helpful means to communicate the most important facts directly to the
project partner in the destination state.

DUBLIN TRANSNATIONAL PROJECT Final report

107

The individual follow-up file


(automatic form/ available in english only)

EUROPEAN REFUGEE FUND


Project JLS/2008/ERFX/CA/1021
Transnational advisory and assistance network
for asylum seekers
under a Dublin process

Follow-up file
Asylum seeker under the Dublin regulation
(and accompanying family members)

Confidentiality requirement
This file contains confidential information which is intended only for use
by the individual and organizations named in this file. You are hereby notified that any disclosure, copying, distribution of this file is strictly prohibited.
As an exception, this file shall be disclosed and transmitted by email to the coordinator, Forum rfugis, who is in charge of centralizing this file within the project implementation framework. The same confidentiality requirement applies to
the coordinator. Nevertheless, the coordinator may use the data contained in this
file in order to produce analytical reports, articles and statements provided that
the coordinator does not disclose personal information such as the name and
surname of asylum seekers and family members.

108

DUBLIN TRANSNATIONAL PROJECT Final report

FOR THE ADMINISTRATION OF THE CASE


File Reference: transferring country code

Organization acronym

file number

Referees

In the transferring state:


Member State:
Name and address of the organization assisting the asylum seeker:
Name/Surname (project worker involved in the case within this organization):

Email:
Phone:

In the responsible state:


Member State:
Name and address of the organization assisting the asylum seeker:
Name/Surname (project worker involved in the case within this organization):

Email:
Phone:

Was this file filled out during an interview with the asylum seeker?
Yes

Date:

No
During the interview(s), was the asylum seeker assisted by an interpreter?

Yes

No

Language used during the interview:

DUBLIN TRANSNATIONAL PROJECT Final report

109

PERSONAL DATA OF THE ASYLUM SEEKER

Mother tongue:

Other languages (if appropriate specify the level of understanding for each language):
1.
2.
3.

IDENTIFICATION OF THE ASYLUM SEEKER

NAME/Surname:

Gender:
Date of birth:
Place of birth:
Nationality:
Ethnic origin:
Religion:
Place of usual residence (specify if it is different from the country of origin):
Registration/recognition by refugee agency:
Any further information:

50 - Does he/she suffer from any


medical problems? If so, what is
the medical problem? Has
he/she received medical
treatment for this problem?
Does he/she require ongoing
treatment for this medical
condition? Has he/she received
a medical report on his/her
condition? Is there a copy
available? Has he/she received
medical assistance in the
transferring and or responsible
state? Any information about
vaccines etc

51 - For example (age (minor or


elderly), disabled people,
pregnant women, single parents
with minor children, persons
who have been subjected to
torture, rape or other serious
forms of psychological, physical
or sexual violence) which may
prevent the transfer or require
the presence of a family member
either in the requiring state or
in the required state.

110

MEDICAL INFORMATION

Does he/she have immediate medical needs?

Yes

No

Details and current medication50 :


Doctors details:

INFORMATION ON HUMANITARIAN ASPECTS


Any specific vulnerability51 :

DUBLIN TRANSNATIONAL PROJECT Final report

SPECIAL LINK WITH (fill in the name


of a country): language, history
ACCOMPANYING FAMILY MEMBERS
Name and
surname

Family link

Location

Immigration
status 52

Dependent
on ASE

Education

Immigration
status 53

Dependent
on ASE

Education

/
/
/
/
/

Any further information:

OTHER FAMILY MEMBERS IN EUROPE


Name and
surname

Family link

Location

/
/
/
/
/

Any further information:

OTHER RELEVANT INFORMATION:

52 - For example, in a
procedure, refugee status,
subsidiary protection,
naturalized, illegal migrant
53 - For example, in a
procedure, refugee status,
subsidiary protection,
naturalized, illegal migrant

DUBLIN TRANSNATIONAL PROJECT Final report

111

PART I. Transferring state:


situation assessment
Dates and locations of the interviews:
Reasons for leaving his/her country:

I. Reasons for application of the Dublin regulation


Route of the asylum seeker in Europe
1. Date when he/she left his/her country:
2. List of the countries crossed:
Country

Length of time

Detention

Immigration
Status

fingerprinted

Voluntarily/forced

Other relevant information/ outcome of applications/cases pending:


3. If it is a family, were they together all along the journey?
Yes
No

Explain:

4. Did the asylum seeker return to his/her country of origin between his/her stays in Europe?
Yes

If so, for how long?

No

Any further information:

112

DUBLIN TRANSNATIONAL PROJECT Final report

II.Administrative situation of the asylum seeker in


(Fill in the name of your country)
Status of asylum application
5. Place

and Date

of arrival

6. Formal date of asylum application to the competent authority:

Dublin procedure steps


7. Starting date of the Dublin procedure:
8. Obligation to report to the authorities:
9. Date of the request to take charge or take back:
10. Date of acceptance of the transfer by the required state:
11. Date of the notification of the transfer decision:
12. At the time of the decision of transfer, was he/she detained or imprisoned? Yes

No

Any further information:


13. At the time of the decision of transfer, was he/she with his/her family? Yes

No

Any further information:


14. Did he/she contest/appeal the announcement /decision of transfer? Yes

No

Any further information:


15. Place

and date

when the transfer will take place (if known).

Information on the Dublin procedure


16. The information on the Dublin procedure was provided:
in written form
orally

17. When was the information given:


18. The information was provided in what language:
19. Did he/she understand the information: Yes

No

20. Did the information include:


How the Dublin system works
The deadlines and effects foreseen
The responsible Member State for examining their claim

21. Did the asylum seeker receive appropriate information about the decision of transfer?
The grounds for the decision
Announcement of the decision of transfer
Information about the date of the transfer
Compliance with the deadline of transfer

22. Any other relevant information:

DUBLIN TRANSNATIONAL PROJECT Final report

113

PART II. Responsible state: Follow-up


Dates and locations of the interviews:

I. Conditions of transfer
23. Method of the transfer:
Voluntary
Forced

24. How did he/she travel?


By himself/herself
Under escort

25. Did the authorities take his/her official documents?


Yes

Which authority:

No

26. Was he/she allowed to bring personal property?


27. His/her experiences during the transfer:

II.Conditions of reception of the asylum seeker


in (Fill in the name of your country)
28. First person or organization met upon arrival in the responsible state:
29. Was he/she detained?
Yes

Where and how long?

No
30. Was he/she in contact with an NGO?
Yes

Which one:

No
31. Any further information

III.

Administrative follow-up

32. Did he/she apply for asylum?


Yes

when

No
Details of application/reactivation:

114

DUBLIN TRANSNATIONAL PROJECT Final report

33. Was the asylum application examined under a prioritized or accelerated procedure?
Yes

If so, on what grounds:

No

34. What is the final decision on the asylum application?


Protection granted
refugee status
subsidiary protection
protection on humanitarian grounds
Others
Not granted

Explain:
Explain:

IV. Social, medical, psychological support


(for the asylum seeker awaiting a pending claim)
35. Accommodation (type & location):

36. Are his or her social rights guaranteed in practice? Yes

No

Any further information:

37. Practical difficulties in obtaining social benefits:


38. Does he/she benefit from medical and psychological care services if required?
Yes

No

Any further information:

39. Does he/she have any comments about the services provided?

40. Does he/she have work or/and attend a (professional) training session?
Yes

specify

No

41. Do his/her children have access to school? Yes

No

Any further information:

COMMENTS:
By the partner organization in the transferring state:
By the partner organization in the responsible state:

DUBLIN TRANSNATIONAL PROJECT Final report

115

Autorization to be signed
by the asylum seeker
(available in english only)

Project JLS/2008/ERFX/CA/1021
Transnational advisory and assistance network
for asylum seekers under a Dublin process

Authorization to use personal data


I, , declare that the information contained in the follow-up
form reference ..has been provided by me. I understand the purpose of this form
and I accept it to be transmitted to ...and to the project coordinator Forum
rfugis.
Place: ..
Date: ....
Signature: .

Context:
Your personal data are used in the context of the Transnational Dublin project Transnational network for
counseling and assisting asylum seekers under a Dublin process, financed by the European Refugee Fund
and coordinated by Forum rfugis in partnership with 12 NGOs around Europe.
The objective of this project is to ensure continuity in the legal, social and practical support provided to
asylum seekers being transferred to another member state according to the European Union Dublin regulation.
The individual follow-up form shall enable NGOs assisting the asylum seekers under a Dublin process to
assess the legal, social and medical situation of an individual asylum seeker and his/her family. Using the
information provided by the network member in the transferring state, the network member in the receiving state will be able to evaluate the asylum seekers situation and prepare his/her arrival, thus avoiding
any break in the legal, medical and social care.

Conditions:
The personal data are given on a confidential basis and are intended only for the use of the asylum seeker, Forum rfugis and organizations assisting the asylum seeker in both the receiving and the transferring
state.

116

DUBLIN TRANSNATIONAL PROJECT Final report

Selection of documents
related to the Dublin regulation
and its application
Dublin system
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 [Official Journal L 050 , 25/02/2003 P. 0001 0010]
Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 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 [Official Journal L 222 of 5.9.2003].
Council Regulation (EC)No 2725/2000 of 11 December 2000 concerning the establishment of Eurodac
for the comparison of fingerprints for the effective application of the Dublin Convention. [Official Journal
L 316 of 15.12.2000]

Gnral documents
Dublin cases fact sheet, ECHR, http://www.echr.coe.int/NR/rdonlyres/26C5B519-9186-47C1AB9B-F16299924AE4/0/FICHES_Dublin_Cases_EN.pdf
Comments on the European Commission Proposal to recast the Dublin Regulation, ECRE, 29 April 2009
http://www.ecre.org/files/ECRE_Response_to_Recast_Dublin_Regulation_2009.pdf
Reflection note on the evaluation of the Dublin system and on the Dublin III proposal, March 2009,
http://www.ulb.ac.be/assoc/odysseus/CEAS/PE410.690.pdf
UNHCR comments on the European Commission's Proposal for a recast of the Dublin Regulation,18
March 2009, http://www.unhcr.org/refworld/docid/49c0ca922.html
Meijers Committee, Note on the proposals to amend the Dublin Regulation, COM(2008) 820 final of
3.12.2008 and the Reception Conditions Directive, COM(2008) 815, 18 March 2009 http://www.statewatch.org/news/2009/mar/eu0dublin-reception-meijers-cttee.pdf
Proposal for a recast of Dublin Regulation, 3 December 2008,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0820:FIN:EN:PDF
Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered, ECRE, March 2008,
http://www.asyl.at/fakten_1/ECRE_Dublin_Reconsidered_Mar2008.pdf
Dublin mechanism obstacle to future European Asylum System, ECRE, 31 March 2008,
http://www.ecre.org/files/Dublin%20mechanism%20obstacle%20to%20EAS.pdf
Report on the evaluation of the Dublin system , 6 June 2007, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/227
The Dublin Regulation: Twenty Voices - Twenty Reasons for Change, ECRE, 20 March 2007,
http://www.ecre.org/files/Dublin_20_voices.pdf
DUBLIN TRANSNATIONAL PROJECT Final report

117

The situation in Greece


European Committee for the Prevention of Torture
and inhuman or degrading treatment or punishment (CPT) report on the visit to Greece 17
November 2010

NOAS, Norwegian Helsinki Committee & AITIMA


Out the Back Door: The Dublin II egulation
and illegal deportations from Greece October
2009
European Court of Human Rights S.D. v. Greece,
Application No. 53541/07 11 June 2009

UNHCR Submission for the Office of the High


Commissioner for Human Rights' Compilation Report - Universal Periodic Review:
Greece November 2010

Austrian Red Cross & Caritas Austria The situation of persons returned by Austria to Greece
under the Dublin Regulation May 2009

UN Special Rapporteur on Torture preliminary


findings on his mission to Greece 20 October
2010

The Greek Council for Refugees The Dublin Dilemma in Greece Burden shifting and putting asylum seekers at risk 15 February 2009

UNHCR oral intervention at the European


Court of Human Rights Hearing of the case
M.S.S. v. Belgium and Greece 1 September
2010

Human Rights Watch Left to Survive: Systematic Failure to Protect Unaccompanied Migrant
Children in Greece December 2008

Amnesty International, Greece: Irregular migrants and asylum-seekers routinely detained


in substandard conditions July 2010
European Court of Human Rights, A.A. v. Greece,
Application No. 12186/08 22 July 2010

Council of Europe Commissioner for Human


Rights, Thomas Hammarberg report following
his visit to Greece, 8-10 December 2008 December 2008
Human Rights Watch Stuck in a Revolving Door:
Iraqis and Other Asylum Seekers and Migrants
at the Greece/Turkey Entrance to the European Union November 2008

Greek Council for Refugees The bad practices of


the asylum process as recorded in a fax from
GCR to the competent authorities of the Greek
state July 2010

ProAsyl The situation in Greece is out of


control October 2008

Council of Europe Commissioner for Human


Rights, Thomas Hammarberg, Third Party Intervention, M.S.S. v. Belgium and Greece 31 May
2010

NOAS, Norwegian Helsinki Committee & Greek


Helsinki Monitor A gamble with the right to asylum in Europe - Greek asylum policy and the
Dublin II Regulation April 2008

Council of Europe Commissioner for Human


Rights, Thomas Hammarberg Third Party Intervention, Ali & Ors v the Netherlands and
Greece 10 March 2010

UNHCR Position On The Return Of AsylumSeekers To Greece Under The "Dublin Regulation" April 2008

Amnesty International, The Dublin II Trap, transfers of asylum-seekers to Greece March 2010
UNHCR submission in the case of Ali & Ors v
the Netherlands and Greece February 2010
UNHCR Observations on Greece as a country
of asylum December 2009
Greek non-governmental organizations Report to
the European Commission by Greek NGOs on
infringement of EC Directive on minimum
standards for granting and withdrawing refugee status16 November 2009
Dutch Council for Refugees et al Joint complaint
to the Commission concerning failure to comply with community law: Failing Member State:
Greece 10 November 2009

UNHCR Unaccompanied minors seeking asylum in Greece April 2008


ECRE Spotlight on Greece - EU asylum lottery
under fire April 2008
Council of Europe Report to the Government of
Greece on the visit to Greece carried out by
the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment
or Punishment (CPT) February 2008
ProAsyl The truth might be bitter, but it must be
told - The Situation of Refugees in the Aegean and the Practices of the Greek Coast
Guard October 2007
EU Parliament Report from the LIBE Committee
Delegation on the Visit to Greece (Samos and
Athens) July 2007

Human Rights Watch no Refuge: Migrants in


Greece 1 November 2009

118

DUBLIN TRANSNATIONAL PROJECT Final report

TRANSNATIONAL
DUBLIN PROJECT
Transnational advisory and assistance network
for asylum seekers under a Dublin process

In order to overcome the shortcomings of the Dublin II Regulation, the


French association Forum rfugis coordinates a 18-month project
which aims to develop tools for comprehensive and reliable information on the procedure of the Dublin Regulation and the asylum national systems and monitoring tools for asylum seekers placed under the
Dublin procedure.
The main objective of this project is to create a european network of
associations providing follow-up and assistance to asylum seekers in
their charge, finding themselves under the Dublin procedure.
Dublin II Regulation: Council Regulation No. 343/2003 of 18 February
2003 establishing the criteria and mechanisms for determining the
Member States responsible for examining an asylum application
lodged in one of the Member States by a third-country national.

European partner organizations:

Project website  http://www.dublin-project.eu

nathalie navarre graphiste[s] 04 78 28 55 44

Asyl in Not (Austria), Italian Refugee Council (Italy), Comisin Espaola


de Ayuda al Refugiado (Spain), Danish Refugee Council (Denmark),
Dutch Council for Refugees (Netherlands), Forum rfugis (France),
France Terre dAsile (France), Helsinki Foundation for Human Rights
(Poland), Hungarian Helsinki Commitee (Hungary), Irish Refugee
Council (Ireland), Jesuit Refugee Service (Romania), Organisation Suisse
dAide aux Rfugis (Switzerland), Flemish Refugee Action (Belgium).