Documents considered by the Committee on 21 January 2009 - European Scrutiny Committee Contents


5 Rules to determine which Member State is responsible for examining an application for international protection

(30267)

16929/08

COM((08) 820


+ ADD 1

+ ADDs 2-3

Draft Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one Member State by a third country national or a stateless person

Annex to the draft Regulation: detailed explanation of the proposed modifications to the current Regulation

Commission staff working documents: impact assessment and summary of assessment

Legal baseArticle 63(1)(a) EC; co-decision; QMV
Document originated3 December 2008
Deposited in Parliament15 December 2008
DepartmentHome Office
Basis of considerationEM of 23 December 2008
Previous Committee ReportNone
To be discussed in CouncilNo date fixed
Committee's assessmentPolitically important
Committee's decisionFor debate in European Committee on the same occasion that it debates the draft Directive on minimum standards for the reception of asylum seekers ((30254) 16913/08) and the draft Regulation on the establishment of EURODAC ((30256) 16934/08)

Background

5.1 People from third countries who seek asylum sometimes apply to several Member States.[29] So, in 1997, Member States made an inter-governmental agreement ("the Dublin Convention") on the criteria for deciding which Member State should decide an application.[30] In 2003, the Convention was replaced by EC legislation, known as the Dublin Regulation.[31]

5.2 The Council has also adopted Directives on other important aspects of asylum: the Qualifications Directive, the Asylum Procedures Directive and the Reception Conditions Directive. These Directives together with the Dublin Regulation were conceived as constituting the first stage of a Common European Asylum System.

5.3 The Council also adopted the EURODAC Regulation.[32] EURODAC is a central database which stores asylum seekers' fingerprints and is used to help Member States apply the Dublin Regulation.

5.4 In 2007, the Commission published a report on its evaluation of the operation of the Dublin Regulation.[33] It said that, in general, the Regulation was working satisfactorily but that the Commission would be making proposals for amendments to clarify and improve it.

5.5 In October 2008, the European Council adopted the European Pact on Immigration and Asylum.[34] Among other things, the Pact invites the Commission to make proposals for the second stage of the Common European Asylum System, including the revision of the Dublin Regulation.

5.6 On 3 December 2008, the Commission proposed draft Regulations to replace the Dublin Regulation and EURODAC Regulation and a draft Directive to replace the Reception Conditions Directive.

5.7 Article 63(1)(a) of the EC Treaty requires the Council to adopt measures on the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum made by a national of a third country in a Member State.

5.8 The fourth Protocol to the EC Treaty provides that the United Kingdom is not bound by a measure adopted by the Council under Title IV of the Treaty (visas, asylum, immigration and other policies related to the free movement of persons) unless the Government opts into it. The UK Government opted into the Dublin Regulation and the UK is bound by it.

The document

5.9 The Commission proposes the adoption of the draft Regulation (and the consequential repeal of the Dublin Regulation) for three main reasons:

  • to improve the efficiency of the system for determining which Member State is responsible for examining an application for international protection;
  • to ensure that the needs of applicants are properly taken into account; and
  • to introduce arrangements for the temporary suspension of the transfer of applicants to a Member State which is faced with urgent situations that are making exceptionally heavy demands on its capacity to meet the EC's minimum standards for the reception of applicants for protection.

5.10 The proposed new Regulation would apply to applicants for "international protection" . The Dublin Regulation applies only to third country nationals who apply for refugee status. The proposed Regulation would apply not only to them but also to stateless people who apply for refugee status and to third country nationals and stateless people who apply for subsidiary protection status. The draft proposes that "application for international protection" should have the same meaning as it is given in the Qualifications Directive.[35]

5.11 The draft Regulation re-enacts, with amendments, some of the Articles of the Dublin Regulation and makes new provisions. It has nine Chapters:

  • Chapter I — subject matter and definitions;
  • Chapter II — general principles and safeguards;
  • Chapter III — criteria for determining the Member State responsible for examining an application;
  • Chapter IV — discretionary clauses;
  • Chapter V — obligations of the responsible Member State;
  • Chapter VI — procedures for taking charge and taking back;[36]
  • Chapter VII — administrative cooperation;
  • Chapter VIII — conciliation; and
  • Chapter IX — transitional provisions and final provisions.

The Annex (ADD 1) provides an explanation of each of the Articles of the draft Regulation.

The Government's view

5.12 In his Explanatory Memorandum of 23 December 2008, the Minister of State at the Home Office (Mr Phil Woolas) tells us that the Government has not yet decided whether to opt into the proposed Regulation. In making the decision, it will have particular regard to:

  • whether participation in the measure would support the achievement of the UK's national objectives for asylum and, in particular, removing or deterring "asylum shoppers";
  • the extent to which the proposals can be improved in the negotiations; and
  • the implications for the UK's broader relationships with the EU and Member States.

5.13 The Minister says that the Government welcomes some of the provisions of the draft Regulation but has concerns about others. For example, the Government welcomes the proposal to bring the scope of the Regulation into line with that of the Qualifications Directive so that it applies to stateless people as well as third country nationals and to applicants for subsidiary protection as well as applicants for refugee status.

5.14 Article 4 of the draft Regulation specifies the information that the Member State must give applicants for international protection and provides for the production of a leaflet which all Member States could use to provide the required information. The Government supports the proposal for a common leaflet and thinks that it would reduce the present differences in the information applicants are given.

5.15 Articles 7 to 12 of the draft Regulation set out the criteria for determining the Member State responsible for examining an application if the applicant is an unaccompanied minor; if the applicant has a family member who has been allowed to reside in a Member State as a person granted international protection; if the applicant is dependent on the assistance of a relative because of pregnancy, a new born child, serious illness, severe handicap or old age or if the relative is dependent on the applicant for one or more of those reasons; and if several members of a family make applications at the same time. The Minister tells us that the Government is concerned by the proposal to include "dependent relatives" in the criteria for deciding which Member State should decide an application. He says that:

    "We are concerned that this proposal could allow an applicant for international protection to seek to remain in the State applying Dublin on the basis of a claim that he or she has, for example, a dependent uncle or distant cousin in that state overriding other potential responsibility criteria.

    "In the experience of the UK Border Agency it is often very difficult to determine whether alleged family members are related as claimed, because of the absence or poor quality of documentation or a lack of consistency in verbal statements… .

    "Claimed distant relationships can be more difficult and time consuming to establish, particularly outside the nuclear family. There is also a risk of states unwittingly endorsing the trafficking of children or vulnerable adults to join claimed 'relatives', which raises obvious concerns about the individuals' safety.

    "We are therefore not convinced that the addition of the provisions as drafted will enhance the operation of the Regulation."[37]

5.16 Commenting on Article 26 of the draft Regulation (right of appeal against or review of a transfer decision) the Minister says that the Government is concerned that the availability of additional remedies should not unduly reduce the efficiency of the proposed Regulation. The Government believes that the UK's current safeguards for applicants are sufficient.

5.17 The Dublin Regulation contains no provision on the detention of applicants. Article 27(2) of the draft Regulation introduces a new prohibition on Member States keeping a person who is the subject of a transfer decision in detention unless there is a significant risk of the applicant absconding. The proposed Article also makes provision on the duration of detention, who may order detention, the regular judicial review of continued detention, and the rights of detained people to information and legal assistance. The Minister says that the Government believes that the legal safeguards which already exist in the UK are sufficient and is not convinced, therefore, that Article 27 is necessary to provide protection.

5.18 Article 31 of the draft Regulation makes provision for the temporary suspension of the transfer of applicants to a Member State when it is faced with a particularly urgent situation which imposes an exceptionally heavy burden on its reception capacities, asylum system or infrastructure, and when the transfer of applicants could add to that burden. The Minister tells us that:

    "We are not convinced that particular pressures faced by Member States should be addressed within the Dublin System. We are concerned that such a provision could be seen to endorse, rather than tackle, asylum shopping as part of a 'numbers game' and that this approach also poses risks in terms of pull factors and adverse influences on the behaviour of traffickers and facilitators."[38]

5.19 Finally, the Minister tells us that for a variety of reasons, including the European elections in June 2009 and the subsequent appointment of a new Commission in the autumn, it is unlikely that the draft Regulation will be presented to the Council for adoption until 2010 at the earliest.

Conclusion

5.20 The Dublin Regulation has worked well and we are sympathetic to the Commission's aim of clarifying its meaning and improving the way it works.

5.21 We are grateful to the Minister for his helpful Explanatory Memorandum and his explanation of the reasons why the Government has reservations about some aspects of the draft Regulation, although we do not understand the reasons for its concerns about Article 31 (temporary suspension of transfers).

5.22 The key question is whether the Government will opt into the proposed Regulation. We are grateful to the Minister for telling us the factors the Government will take into account in reaching its decision. We are surprised, however, that the Minister told us nothing about the likely consequences for the UK if the Government does not opt into the Regulation. We ask him to send us his assessment of the probable effects as soon as possible.

5.23 Because of the importance of the subject and so that the Government is able to take account of the views of the House in reaching its decision over whether to opt in to the draft Regulation, we recommend the document for debate in the European Committee. We recommend that it is debated on the same occasion that the European Committee debates the draft Directive on minimum standards for the reception of asylum seekers and the draft EURODAC Regulation.


29   For example, 16% of asylum applicants in 2005 made applications to more than one Member State. Back

30   OJ No. C 254, 19.8.97, p.1. Back

31   Council Regulation (EC) No. 343/2003: OJ No. L 50, 25.2.03, p.1. Back

32   Council Regulation (EC) No. 2725/2000: OJ No. L 316, 15.12.00, p.1. Back

33   (28695) 10517/07. Back

34   European Council meeting on 15-16 October 2008, Presidency Conclusions, paragraphs 19 and 20. See also (29937)12626/08: HC 16-xxix (2007-08), chapter 17 (10 September 2008). Back

35   Council Directive 2004/83/EC: OJ No. L 304, 30.9.04, p.12.

Article 2(g) of the Qualifications Directive says that "application for international protection" means a request by a third country national or a stateless person for protection from a Member State where the person can be understood to be seeking refugee status or subsidiary protection status.

Article 2(c) defines "refugee" as a third country national who, because of a well-founded fear of being persecuted on grounds of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable, or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside the country of former habitual residence, for the same reasons, is unable or unwilling to return to it.

Article 2(e) of the Qualifications Directive defines "person eligible for subsidiary protection" as a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person, if returned to his or her country or former country, would face a real risk of suffering serious harm and is unable or unwilling to avail himself or herself of the protection of that country. Back

36   The Member State with responsibility for examining an application is required to "take charge" of an applicant who has lodged an application in a different Member State and to "take back" a third country national whose application it has rejected and who is in the territory of another Member State without permission. Back

37   Paragraphs 17 to 20 of the Minister's Explanatory Memorandum. Back

38   Paragraph 36 of the Minister's Explanatory Memorandum. Back


 
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