Gustav
01-12-2008, 12:53 AM
FACT SHEET ON THE DUBLIN CONVENTION
Under the Dublin Convention, individuals must make their application for asylum in the first EU country that they enter. Since its entry into force in 1997, this Convention has proved to be unworkable. Efforts are being made at EU level to revise the Convention; however, in reality, the proposed changes largely retain the substance of the original agreement. This Fact Sheet outlines the some of the challenges which are inherent in the Dublin Convention procedures and puts forward recommendations for reform.
What is the Dublin Convention?
The Dublin Convention is essentially a mechanism for determining which Member State of the European Union is responsible for examining an application for asylum lodged in one of the contracting States. Asylum seekers must lodge their application for asylum in the first EU country in which they arrive and may be returned to another EU Member State if it can be shown that they have either passed through the border of another State (by air, sea or land) or made an application for asylum in another Member State.
NB It should be noted that the Dublin Convention is a feature of European Union law and not a duty arising from international law and it is not part of the Geneva Convention.
What is the purpose of the Dublin Convention?
According to the Irish Government, the Dublin Convention has the following aims:
· Essential to the creation of a common European asylum system – the Dublin Convention is regarded as an integral aspect of the harmonisation of asylum policies in the EU.
· Avoiding “Asylum Shopping” – the criteria laid down in the Dublin Convention aim to remove the alleged risk of “asylum shopping,” where an asylum seeker claims asylum in a number of EU States. This term relates also to the perception that asylum seekers may choose one EU Member State over another on the basis of a higher standard of reception conditions or social security assistance.
Removing the Potential for “Asylum Seeker in Orbit” Situations – it also seeks to ensure that there is no potential for “asylum seeker in orbit” situations, whereby an asylum seeker is transferred between States with no State willing to take responsibility for examining his/her claim.
How does the Dublin Convention work?
Where it can be proved that an asylum seeker has crossed the border into an EU Member State by land, sea or air, s/he may be returned to that country for the substantive determination of his/her claim for asylum.
Time limits – If a Member State wishes to return an individual to another Member State under the Dublin Convention procedures, the transfer must take place within six months.
Appeal – In Ireland, if an individual is issued with notification under the Dublin Conventionconcerning his/her return to another EU Member State, s/he has five working days to make written representation to the Refugee Applications Commissioner and a further five working days to appeal a negative decision. In other words, an individual must be in Ireland for a minimum of 10 working days before s/he can be returned to another EU Member State under the Dublin Convention.
PROPOSED CHANGES TO THE DUBLIN CONVENTION
The Dublin Convention has proved to be unworkable and inefficient. The European Commission’s Proposal for a Council Regulation on replacing the Dublin Convention (COM (2001) 447 final) represents a clear acknowledgement that this mechanism needs to be thoroughly revised. The Irish Refugee Council criticises the proposed Regulation for retaining a number of problems with the original Dublin Convention.
Positive Aspects of the Proposed Regulation:
Family Members – under the Dublin Convention, if an asylum seeker has a family member who is residing in another Member State as a recognised refugee, individuals have the right to have their application processed by that State. The draft regulation expands upon this entitlement to include the applicant’s family member who has an asylum application that is being considered under the normal procedure and also expands on the definition of a family member.
Separated Children – allows for thetransfer of an application of a separated child if s/he has a relative in another EU State who is willing to take charge of him/her and if in the best interests of the child.
Main Problems with the Revised Dublin Convention
1. The Presumption of Equal Justice in all Member States – The transfer of an individual to another Member State relies upon the assumption that the asylum seeker will receive equal protection and equal access to justice in each EU Member State. However, European national legal systems have divergent views on asylum procedures, particularly in relation to the definition of a refugee, the definition of a safe third country and the definition of agents of persecution.
Courts are now increasingly dealing with these objections, which have long been highlighted by non-governmental organisations such as the European Council for Refugees and Exiles. For example, the UK House of Lords has held that Germany and France are not safe third countries for certain asylum seekers, due to the fact that they do not recognise that non-state agents may constitute agents of persecution.
2. Unequal Recognition Rates among EU Member States – Recognition rates throughout the EU vary considerable for same country nationals. Based on UNHCR statistics for 2000, it is clear that in many cases Ireland is consistently less likely to accept claims for refugee status than its European counterparts. For example, in relation to asylum claims from Somali applicants, Ireland recognised 12%, in comparison to 34% in Germany and 86% in UK.
3. Right of Appeal – The Convention implies that an asylum seeker can lodge an appeal against a decision to be transferred to another Member State. However, the obligation of a right of appeal is not expressly provided for in the Dublin Convention. Therefore, most EU Member States do not allow for a right to appeal the transfer of responsibility to another Member State. UNHCR have recently criticised the draft proposal, as it does not provide for a right to remain on the territory until the appeal is heard (i.e. the right to appeal with suspensive effect).
Means of Proof – It is usually difficult to prove that an individual has passed through another Member State, due an absence of documentary evidence and it is undoubtedly a resource-intensive exercise. In light of this challenge, Member States have issued more flexible means of proof, such as relying upon general evidence relating to asylum applicants of the same nationality or social group (such as travel routes). The EURODAC Convention, which allows for the fingerprinting of all asylum applicants over the age of 14, is another method of proving a previous application.
5. Delays in transfer – the delay in issuing notification for transfer under the Dublin Convention after six months has resulted in individuals being allowed to lodge their claim for asylum in the country in which they are present and further highlights the inefficiency of the Convention procedures.
6. Valid reasons to claim asylum in a particular Member State – there may be valid reasons for an individual wishing to claim asylum in a particular EU country such as linguistic ties, family connections or the existence of an established national community. UNHCR has also pointed out that when seeking asylum, individuals are more likely to be influenced by the presence of their own community, rather than by the alleged reception standards or benefits attached to a particular EU State.
RECOMMENDATIONS
No assumption that equal justice will be provided for all Member States – it should not be automatically assumed that asylum seekers receive equal justice in all EU countries due to the disparate asylum and refugee policies and unequal recognition rates across the EU.
Right of appeal must have suspensive effect – individuals must have a right to appeal decisions made under the Dublin Convention procedures and allowed to remain in the territory of the State in which they lodged the appeal, until the final decision has been determined.
3. Non-refoulement – the mechanism for determining which Member State is responsible for assessing an asylum application must respect the right of non-refoulement contained within the Geneva Convention and Article 3 of the European Convention on Human Rights (1950) in order to ensure that individuals are not returned to persecution.
Need for substantive harmonisation of Member State asylum policies – the Dublin Convention will never operate satisfactorily without the substantive harmonisation of EU asylum laws. The Irish Government must constantly promote the harmonisation of EU refugee policies in line with the highest international standards and respect fully the human rights of all individuals.
Emphasis on control not protection –The Dublin Convention highlights the over-emphasis of the EU on Member States who fail to control who passes through its borders, rather than focussing on the obligation to provide refuge to those in need of international protection. The EU Member States’ international obligations are compromised by the emphasis of responsibility on the State in which the asylum seeker first arrived in the territory of the EU. This is sometimes called “the Fortress Europe mentality”.
It should also be remembered that the Dublin Convention is not a feature of international law. International law does not state that an asylum seeker must make his/her application in the first European Union country which s/he enters en route. The Irish Refugee Council believes that asylum seekers should be allowed to have their claim for asylum heard in the country in which they lodge their first application.
Under the Dublin Convention, individuals must make their application for asylum in the first EU country that they enter. Since its entry into force in 1997, this Convention has proved to be unworkable. Efforts are being made at EU level to revise the Convention; however, in reality, the proposed changes largely retain the substance of the original agreement. This Fact Sheet outlines the some of the challenges which are inherent in the Dublin Convention procedures and puts forward recommendations for reform.
What is the Dublin Convention?
The Dublin Convention is essentially a mechanism for determining which Member State of the European Union is responsible for examining an application for asylum lodged in one of the contracting States. Asylum seekers must lodge their application for asylum in the first EU country in which they arrive and may be returned to another EU Member State if it can be shown that they have either passed through the border of another State (by air, sea or land) or made an application for asylum in another Member State.
NB It should be noted that the Dublin Convention is a feature of European Union law and not a duty arising from international law and it is not part of the Geneva Convention.
What is the purpose of the Dublin Convention?
According to the Irish Government, the Dublin Convention has the following aims:
· Essential to the creation of a common European asylum system – the Dublin Convention is regarded as an integral aspect of the harmonisation of asylum policies in the EU.
· Avoiding “Asylum Shopping” – the criteria laid down in the Dublin Convention aim to remove the alleged risk of “asylum shopping,” where an asylum seeker claims asylum in a number of EU States. This term relates also to the perception that asylum seekers may choose one EU Member State over another on the basis of a higher standard of reception conditions or social security assistance.
Removing the Potential for “Asylum Seeker in Orbit” Situations – it also seeks to ensure that there is no potential for “asylum seeker in orbit” situations, whereby an asylum seeker is transferred between States with no State willing to take responsibility for examining his/her claim.
How does the Dublin Convention work?
Where it can be proved that an asylum seeker has crossed the border into an EU Member State by land, sea or air, s/he may be returned to that country for the substantive determination of his/her claim for asylum.
Time limits – If a Member State wishes to return an individual to another Member State under the Dublin Convention procedures, the transfer must take place within six months.
Appeal – In Ireland, if an individual is issued with notification under the Dublin Conventionconcerning his/her return to another EU Member State, s/he has five working days to make written representation to the Refugee Applications Commissioner and a further five working days to appeal a negative decision. In other words, an individual must be in Ireland for a minimum of 10 working days before s/he can be returned to another EU Member State under the Dublin Convention.
PROPOSED CHANGES TO THE DUBLIN CONVENTION
The Dublin Convention has proved to be unworkable and inefficient. The European Commission’s Proposal for a Council Regulation on replacing the Dublin Convention (COM (2001) 447 final) represents a clear acknowledgement that this mechanism needs to be thoroughly revised. The Irish Refugee Council criticises the proposed Regulation for retaining a number of problems with the original Dublin Convention.
Positive Aspects of the Proposed Regulation:
Family Members – under the Dublin Convention, if an asylum seeker has a family member who is residing in another Member State as a recognised refugee, individuals have the right to have their application processed by that State. The draft regulation expands upon this entitlement to include the applicant’s family member who has an asylum application that is being considered under the normal procedure and also expands on the definition of a family member.
Separated Children – allows for thetransfer of an application of a separated child if s/he has a relative in another EU State who is willing to take charge of him/her and if in the best interests of the child.
Main Problems with the Revised Dublin Convention
1. The Presumption of Equal Justice in all Member States – The transfer of an individual to another Member State relies upon the assumption that the asylum seeker will receive equal protection and equal access to justice in each EU Member State. However, European national legal systems have divergent views on asylum procedures, particularly in relation to the definition of a refugee, the definition of a safe third country and the definition of agents of persecution.
Courts are now increasingly dealing with these objections, which have long been highlighted by non-governmental organisations such as the European Council for Refugees and Exiles. For example, the UK House of Lords has held that Germany and France are not safe third countries for certain asylum seekers, due to the fact that they do not recognise that non-state agents may constitute agents of persecution.
2. Unequal Recognition Rates among EU Member States – Recognition rates throughout the EU vary considerable for same country nationals. Based on UNHCR statistics for 2000, it is clear that in many cases Ireland is consistently less likely to accept claims for refugee status than its European counterparts. For example, in relation to asylum claims from Somali applicants, Ireland recognised 12%, in comparison to 34% in Germany and 86% in UK.
3. Right of Appeal – The Convention implies that an asylum seeker can lodge an appeal against a decision to be transferred to another Member State. However, the obligation of a right of appeal is not expressly provided for in the Dublin Convention. Therefore, most EU Member States do not allow for a right to appeal the transfer of responsibility to another Member State. UNHCR have recently criticised the draft proposal, as it does not provide for a right to remain on the territory until the appeal is heard (i.e. the right to appeal with suspensive effect).
Means of Proof – It is usually difficult to prove that an individual has passed through another Member State, due an absence of documentary evidence and it is undoubtedly a resource-intensive exercise. In light of this challenge, Member States have issued more flexible means of proof, such as relying upon general evidence relating to asylum applicants of the same nationality or social group (such as travel routes). The EURODAC Convention, which allows for the fingerprinting of all asylum applicants over the age of 14, is another method of proving a previous application.
5. Delays in transfer – the delay in issuing notification for transfer under the Dublin Convention after six months has resulted in individuals being allowed to lodge their claim for asylum in the country in which they are present and further highlights the inefficiency of the Convention procedures.
6. Valid reasons to claim asylum in a particular Member State – there may be valid reasons for an individual wishing to claim asylum in a particular EU country such as linguistic ties, family connections or the existence of an established national community. UNHCR has also pointed out that when seeking asylum, individuals are more likely to be influenced by the presence of their own community, rather than by the alleged reception standards or benefits attached to a particular EU State.
RECOMMENDATIONS
No assumption that equal justice will be provided for all Member States – it should not be automatically assumed that asylum seekers receive equal justice in all EU countries due to the disparate asylum and refugee policies and unequal recognition rates across the EU.
Right of appeal must have suspensive effect – individuals must have a right to appeal decisions made under the Dublin Convention procedures and allowed to remain in the territory of the State in which they lodged the appeal, until the final decision has been determined.
3. Non-refoulement – the mechanism for determining which Member State is responsible for assessing an asylum application must respect the right of non-refoulement contained within the Geneva Convention and Article 3 of the European Convention on Human Rights (1950) in order to ensure that individuals are not returned to persecution.
Need for substantive harmonisation of Member State asylum policies – the Dublin Convention will never operate satisfactorily without the substantive harmonisation of EU asylum laws. The Irish Government must constantly promote the harmonisation of EU refugee policies in line with the highest international standards and respect fully the human rights of all individuals.
Emphasis on control not protection –The Dublin Convention highlights the over-emphasis of the EU on Member States who fail to control who passes through its borders, rather than focussing on the obligation to provide refuge to those in need of international protection. The EU Member States’ international obligations are compromised by the emphasis of responsibility on the State in which the asylum seeker first arrived in the territory of the EU. This is sometimes called “the Fortress Europe mentality”.
It should also be remembered that the Dublin Convention is not a feature of international law. International law does not state that an asylum seeker must make his/her application in the first European Union country which s/he enters en route. The Irish Refugee Council believes that asylum seekers should be allowed to have their claim for asylum heard in the country in which they lodge their first application.