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
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Legal base | Article 63(1)(a) EC; co-decision; QMV
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Document originated | 3 December 2008
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Deposited in Parliament | 15 December 2008
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Department | Home Office |
Basis of consideration | EM of 23 December 2008
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Previous Committee Report | None
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To be discussed in Council | No date fixed
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Committee's assessment | Politically important
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Committee's decision | For 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)
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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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