Dublin II & III

1. Dublin II & III

2. Dublin III und Europarecht Contents • Overview • Criteriafordeterminingtheresponsible EU-State • „Selbsteintrittsrecht“ • Changesfrom Dublin II to Dublin III • The Procedure/Options forintervention • Resume • Further Information

3. Dublin III und Europarecht A. Overview: • What? (What is the Dublin-Regulation?) • Dublin regulation regulates which Dublin Member State is responsible for asylum seekers’ applications. Dublin III regulates applications after 1.1.2014 • Who? (Who is part of the Dublin-Regulation?) • 27 EU member states, Island, Norway, Switzerland (but the EU has no influence on the standards there) • Why? (Why does the Dublin-Regulation exist?) • Criminalisation, insecurity of the asylum seekers • EU-wide competition, which member state can receive less asylum seekers • Who? (Who does it effect?) • Asylum/subsidiary protection seekers which apply for asylum in more than one state which is part of Dublin

4. Dublin III und Europarecht A. Overview • Eurodac: • European fingerprint database. Every fingerprint of persons above the age of 14 is saved when this person: • Applies for asylum • Gets caught when “illegally” crossing EU-Borders • Gets caught while “illegally” staying in an EU-State • BAMF: • Bundesamt formigrationandrefugees(Bundesamt für Migration und Flüchtlinge), responsibleforthe Dublin procedure

5. Dublin III und Europarecht A. Overview • ECHR: • European Court of Human Rights (EuropäischerGerichtshoffürMenschenrechte): • Location: Strasbourg, France • Established by the European Convention on Human Rights • Applications alleging that one of the 47 contracting states has breached the Convention of the Human Rights • EUCJ: • Court of Justice oftheEuropean Union (28 Member States) (Europäischer Gerichtshof): • Location: Luxembourg • Highest Court in the European Union in mattersof European Union Law

6. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • General principles: • The State who let asylum seekers/subsidiary protection seekers in (Art. 12 DIII) or was not capable of preventing them from coming in (Art. 13 DIII) is responsible for their applications. • The Dublin III procedure starts when a person reaches in an application for asylum/application for subsidiary protection in one of the 27 EU Member states.

7. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • I. Minors (<18years, in dubio pro minor) accompanying the asylum seeker (Art. 20 (3)) • share the legal fate of their parents • II. Unaccompanied minors (Art. 8) • Possibility to get together with legally present parent or guardian • new Art. 8 Abs. 2, legally present relative: aunt, uncle or grandparent • III. Family membership (Art. 9 and 10) • Family members can claim that the member state in which a family member is already allowed to reside (asylum) is legally responsible for them. • Criteria: • Family member (defined on the following page) • Legal residence (asylum or application for asylum) • Written claim by the asylum applicant

8. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • Family Member according to Art. 2 is: • - the spouse (Ehegatten) of the applicant or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals, • - the minor children of couples referred to in the first indent or of the applicant, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law, • - when the applicant is a minor and unmarried, the father, mother or another adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present, • - when the beneficiary of international protection is a minor and unmarried, the father, mother or another adult responsible for him or her whether by law orby the practice of the Member State where the beneficiary is present.

9. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • IV. Visa or valid residence document • The state that issued the document is responsible • V. „Irregular“ crossing of EU borders (Art. 12) • The state of the crossed border is responsible for 12 months • 1. Example: • A refugee crosses the border to Poland “illegally” on 20.12.2012. Then he stays there for a couple of months “illegally”. Later he goes to Germany and gives in an application on 01.01.2014. Who is responsible? •  Germany

10. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • 2. Example: • Same case, but the Refugee gets caught by the polish police. In order not to get deported (abgeschoben) he applies for asylum. Then he goes to Germany and applies there for asylum. • Now Poland is responsible, because the first application was there and it was before the ending of the 12 months. • VI Legale/visumfreie Einreise (Art. 14) • If there is no Visa needed to go to an EU Member State, then this State is responsible. • VII. Crossing border by plane/transit area of airports (Art. 15 DIII) • A Member State is also responsible for applications that are put in by refugees in airport transit areas.

11. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • VIII. Dependentpersons (Art. 16) • If an applicant is because of • -pregnancy, • -a new-born child, • -serious illness, • -severe disability or • -old age • dependent on the assistance of his or her child, sibling or parent “legally” resident in one of the Member States, or the other way round, • Member States shall keep or bring together these persons. • Additional requirements are: • - that the family ties already existed in the country of origin, • - that the child, sibling or parent or the applicant is able to take care of the dependent person and • - that the persons concerned express their desire in writing .

12. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • VIII. Dependentpersons (Art. 16) • Whereisthedifferencetothefamilymemberarticles? • Also siblingsareincluded • The norm shallstrengthentheprotectionofthefamilyevenwhenthefamilymemberarticleswouldleadto a seperationofthefamily • „Legally resident“ seemstobebroaderthanlegally resident becauseof international protectionorapplicationforprotection. Unfortunately Duldung isformallynotitle of „legal residence“.

13. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • VIII. Dependentpersons (Art. 16) • Problematicconstraints in theArticle • - Constraint that family ties must have existed in the country of origin • ECHR (Hode and Abdi vs. UK): A similar exception in UK law is a violation of Art. 8 EHRC (family life) in connection with Art. 14 EHRC (non discrimination rule). Therefore also the EU regulation could be an EHRC violation. • - The Article is limited to children, siblings and parents of the applicant • EUCJ (Rs. C-245/11, v. 6.11.2012): In this judgement the EUCJ also included other relatives (grandchildren and daughter-in-law). In view of this judgement the new article is a step back. In view of the human right on family unit it is highly problematic.

14. Dublin III und Europarecht B. Criteriafordeterminingtheresponsiblestate • VIII. DependentPersons (Art. 16) • Problematicconstraints in theArticle • - “is able to take care”: • If that would mean that the person is able to provide the other persons living it would be very restrictive. There are reasons why in our oppinion this is not the intention of the Article. • the German translation only speaks of “unterstützen” (support) • The Article also means the case that a person that seeks asylum in a Dublin State is able to take care • The Article would otherwise be inefficient.

15. Dublin III und Europarecht C. „Selbsteintrittsrecht“ = DiscretionaryClause • Article 17 • Discretionary clauses • 1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation. • The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility.

16. Dublin III und Europarecht C. Obligation for„Selbsteintritt “ • Article 2 (2) DIII • Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. • Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible. • = Obligation toexamineasylumapplicationeveniftheconcernedstateis not „responsible“ accordingto Dublin III

17. Dublin III und Europarecht C. Obligation for„Selbsteintritt “ • Judgementsandproblematic countries: • Greece : („Abschiebestop“ bythe Bundesinnenministerium, also judgementsbythe EUCJ and ECHR), severalgermancourtsaccepted an individual right on „Selbsteintritt“ • Italy: Stopofdeportationby VG Frankfurt • Hungary: critisisedbythe UNHCR forlagerconditions, physicalabusesandenforcedmedication. VG Stuttgart: „systematicalflaws“ stopofdeportation • Malta: ECHR judgementmakesclearthatimprisonmentofrefugees in Malta is inhuman treatmentand a violationof human rights. examplesforsystematicflaws in theasylumprocedureandreceptionconditions. • Cyprus: ECHR judgement (M.A. vs. Cyprus) on a violationagainsttheright on effective legal remedyandunjustifiedimprisonment. The Judgementonlyrefersto a singlecase, but in ouroppinionitcanbearguedthatitis just an exampleforthesystematicflaws in theasylumprocedurethere.

18. Dublin III und Europarecht D. Changesfrom Dublin II to Dublin III • Scope: application also on seekersofsubsidiaryprotection: • Subsidiaryprotectionapplies in caseswhereasylumdoes not apply, but thereareseverethreatsforfreedom,limborlife in thecountrywheretherefugeeshallbedeportedto. • Right to get information Art. 4 DIII • Personal conversation Art. 5 DIII (In a timely manner and before the transfer decision) • Guarantees for minors Art. 6 DIII • Art. 26 III Delivery (Zustellung) of Zuständigkeitsbescheid • Art. 27 DIII appellate (temporarylegal protection= Einstweiliger Rechtsschutz) • Eurodac enlargement

19. F. The Procedure/Options forintervention Options for action Hit on Eurodac? Visa? Entry from other Dublinstate? No analysable fingerprint? Short hearing (BAMF) yes No Transformation of the files to Dortmund Contact with the BAMF, taking insight in files regularly Hearing: Hints on responsibility of other Dublinstate? yes Check of the responsibility by the BAMF, Responsibility of Germany? No Request to the probably responsible Dublinstate yes Requested Stateaproves or does not answer within 2 months Requested State rejects Starting the asylum procedure in Germany

20. The other Dublinstate gets responsible. Before the Deportation the BAMF has the oppurtunity to do a Selbsteintritt Petititon to Bundestag Selbsteintritt No Selbsteintritt BAMF creates a draft of the Bescheid and gives the file to the ZentraleAusländerbehörde which organises deportation Transfer not possible within the deadline - Unfit to travel (medical certificate) 6 months (Art. 29 DIII) 1 year when imprisonment of refugee hinders deportation 18 months when the refugee absconds EinstweiligerRechtsschutz Klage Bundestagspetititon to get the State to do a Selbsteintritt Landtagspetitition Transfer to other Dublinstate Starting the asylum procedure in Germany Asylumprocedure in other Dublinstate Dublin III und Europarecht

21. Dublin III und Europarecht Further Information • Our material (scriptandlawtexts) andthispresentation will beavailable on: • http://nbbrlegalseminars.blogsport.eu/materials/ • Leafleton Dublin 2 andthechangesby Dublin III (only in german) • http://www.proasyl.de/en/topics/eu-legislation/dublin-ii-regulation/ • Overview on germancourtdecicions • http://www.tilmann-schott-luebeck.de/39201/128201.html