Select Committee on European Scrutiny Twelfth Report



Draft Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

Legal base:Article 63(1)(a) EC; consultation; unanimity
Document originated:26 July 2001
Forwarded to the Council: 27 July 2001
Deposited in Parliament: 12 September 2001
Department:Home Office
Basis of consideration: EM of 23 October 2001
Previous Committee Report: None; but see (21138) 7122/00:HC 23-xx (1999-2000), paragraph 11 (7 June 2000)
To be discussed in Council: No date set
Committee's assessment:Politically important
Committee's decision:Not cleared


  8.1  This draft Regulation is intended to replace the Dublin Convention, which provides a mechanism for determining the Member State responsible for examining an asylum application lodged in one of the Member States. The Dublin Convention entered into force on 1 September 1997, but following the entry into force of the Treaty of Amsterdam and the establishment of a new Title IV of the EC Treaty concerned with visas, asylum and immigration, it needs to be replaced with a Title IV Community instrument; it is also generally accepted that the Convention has had serious shortcomings.

  8.2  In October 1999, the Tampere European Council called for a "clear and workable method" of determining the State responsible for examining an asylum claim.[19] In June 2000, the previous Committee cleared a Commission staff working document designed to initiate discussion on how well the Dublin Convention had worked to date, and how it might best be replaced.[20]

The document

  8.3  The Commission's explanatory memorandum states that, at this stage of the development of a common European asylum system, no radical alternative to the Dublin Convention arrangements appeared realistic. It continues:

    "Consequently, this proposal for a Regulation is based on the same principles as the Dublin Convention and its scope is the same. In other words:

    —  the general principle is that responsibility for examining an asylum application lies with the Member State which played the greatest part in the applicant's entry into or residence on the territories of the Member States, subject to exceptions designed to protect family unity;

    —  the system for determining the State responsible applies only to persons requesting recognition of the status of refugee...and does not cover the forms of subsidiary protection which have not yet been harmonised.

    "However, so as to take the lessons of the past on board, the proposal includes a number of innovations:

    —  new provisions emphasising each Member State's responsibility vis-a-vis all its partners in the Union when it allows illegal residents to remain on its territory;

    —  much shorter procedural deadlines consistent with the proposed deadlines for granting and withdrawing refugee status,[21] to ensure that applications for asylum are processed rapidly;

    —  extended deadlines for implementing transfers to the Member State responsible so as to allow for the practical difficulties arising in connection with such transfers;

    —  new provisions aimed at preserving the unity of asylum seekers' families, in so far as this is compatible with the other objectives of asylum and immigration policy..."

The Government's view

  8.4  In her Explanatory Memorandum, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) tells us that the Government welcomes the fact that the new Regulation uses the Dublin Convention as a basis. She then discusses various aspects of the proposal. In relation to the new provisions emphasising each Member State's responsibility to its EU partners when it allows illegal residents to remain on its territory — which includes the new responsibility criterion of "tolerated illegal presence" — she says:

    "The Government attaches importance to the addition of the concept of 'illegal presence'. The UK supports this principle because it goes some way towards addressing one of the main difficulties we experience in transferring asylum applicants to neighbouring countries through which they have transited before arriving in the UK. However, this is an area of the Regulation that will require careful scrutiny of the definitions and evidential requirements related to the principle that the responsible Member State was aware of the illegal presence and tolerated it. It can also be expected to be subject of some difficult negotiations when it is discussed in the relevant working groups."

  8.5  Although the Minister welcomes the links with the draft Directive on asylum procedures,[22] she identifies some conflicts between the two draft measures. She cites as an example the fact that the procedures Directive sets out that appeals against removal to another Member State are 'suspensive'[23] whilst the draft Regulation permits them to be 'non-suspensive'. The Government will seek further clarification on the scope of this measure, given the link to an absolute 6-month time-limit for an agreed transfer to take place.

  8.6  The Minister then turns to the broad issue of time limits. She says:

    "In general terms shorter time limits are welcome. It must be right that matters of responsibility are decided as quickly as possible, so asylum seekers are not left in a state of uncertainty. The shorter deadlines envisaged in the Regulation acknowledge the fact that Eurodac is expected to become operational in the next year. (The Eurodac Regulation establishes a computerised central database of fingerprint images, as well as the electronic means of transmission between the Member States and the central database. It will enable the fingerprints of asylum applicants and certain other third country nationals to be compared in order to support the application of the Dublin Convention and this replacement Regulation). An effective Eurodac system will rationalise the time currently taken by Member States to process individual requests to determine initial responsibility and identify those who have previously claimed asylum in another Member State or States. But care needs to be taken to avoid situations where the setting of shorter, rigid time limits could place power in the hands of those seeking to abuse the Regulation by delaying an agreed transfer beyond the maximum 6-month period permitted ... We will be carefully assessing these provisions as the negotiations develop."

  8.7  The Minister continues:

    "Finally, the present draft contains several separate articles covering family reunification and humanitarian matters. We note that the provisions are designed to preserve the family unity of asylum seekers, in so far as this is compatible with other aspects of asylum and immigration policy. As the Regulation will be an operational document to be used on a daily basis by practitioners in the Member States we wonder if there is merit in seeking to consolidate these provisions in some way to clarify matters. We anticipate that this practical issue will also be subject to discussion in the relevant Council working groups."

  8.8  The Minister tells us that, although Council working group discussions began in October, they need to run in conjunction with those on the proposals for minimum standards for asylum procedures and reception conditions[24]. It is, therefore, unlikely that a text will be presented for adoption in Council until the latter half of 2002.


  8.9  We welcome the news that discussions on this proposal will run in conjunction with those on the proposals for minimum standards for asylum procedures and reception conditions, and hope that this will result in a coherent package of measures. Given that negotiations on some aspects of the proposal are likely to be difficult and protracted, we will hold the document under scrutiny until its final shape is clearer. We ask the Minister to ensure that revised texts and Explanatory Memoranda are deposited as promptly as possible so that we can scrutinise them carefully before any substantial discussion in Council.

19  Conclusions, paragraph 14. Back

20  (21138) 7122/00; see headnote to this paragraph. Back

21  (21792) 11622/00; see HC 28-v (2000-01), paragraph 8 ( 7 February 2001). Back

22  Ibid. Back

23  i.e. enforcement of the removal is suspended until the appeal is determined. Back

24  (22428) 9074/01; see HC 152-i (2001-02), paragraph 22 ( 18 July 2001). Back

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