Transnational advisory and assistance network for asylum seekers under a Dublin process

GERMANY

FRANCE

SERBIA

SLOVAKIA

HUNGARY

F.Y.R.O

ALBANIA

G

POLAND

CZECHREPUBLIC

BELGIUM

NETHERLANDS

Transnational advisoryand assistance network for asylumseekers under a Dublin process

December 2009 – May 2011

Final report

E U R O P E A NREFUGEE FUND

1DUBLIN TRANSNATIONAL PROJECT Final report

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

GENERAL FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

the Dublin Regulation, the European stakesand the project’s goals

CHAPTER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The overall contextof the Dublin Regulation

I.General presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.1. Context of the Dublin Regulation: principles,

criteria and mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.1.1.The two mechanisms to determine the responsible state: take charge and take back . . . . . . . . . . . . . . 5

I.1.2. The criteria for determining the responsible state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.1.3. Different procedural deadlines depending on the mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.1.4. Asylum seeker transfer conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. Application report : The European Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.1. Information for asylum seekers under the Dublin procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.2. Application of the sovereignity and humanitarian clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.3. Rights and reception conditions of asylum seekers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.4. Detention of asylum seekers under the Dublin regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.5. Right to an effective remedy against transfer decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.6. Access to the asylum application procedure after transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. Revision of the Dublin II regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III.1. Weakness of the Dublin system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III.2. State of progress of negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III.2.1. Somewhat laborious discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III.2.2. M.S.S. v. Belgium and Greece: a discussion catalyst? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CHAPTER 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The transnational Dublin project

I. Why such a project? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

II. General presentation of the project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 DUBLIN TRANSNATIONAL PROJECT Final report

NATIONALREPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

from partner organizationson project implementation

Austria ( Asyl in Not) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Belgium (Flemish Refugee Action) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

France (Forum réfugiés and France terre d’asile) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Hungary (Hungarian Helsinki Committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Ireland (Irish Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Italy (Italian Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Poland (Helsinki Foundation for Human Rights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Romania (Jesuit Refugee Service) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Spain (Comisión Española de Ayuda al Refugiado) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Switzerland (Swiss Refugee Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

CONCLUSION AND GENERALRECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

ANNEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

1 / Partner organizations’ presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

2 / Individual follow-up file (automatic form/

available in english only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

3 / Autorization to be signed by the asylum seeker

(available in english only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

4 / Selection of documents related to the Dublin

regulation and its application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

With this in mind, the Dublin II Regula-tion1, adopted on February 18, 2003, wasintended to determine as quickly as pos-sible which Member State was responsi-ble for examining an asylum request. Spe-cific community rules were drawn up toserve as a basis for determining the Mem-ber State responsible for an asylum re-quest within the European Union.

The Dublin II Regulation works on the as-sumption that the level of protection is thesame or at least similar in all MemberStates. However, in actual fact, NGOs aswell as the European Parliament, the Eu-ropean Commission and the MemberStates, all claim that there are large diffe-rences between States. The implementa-tion of the Dublin Regulation has provedunfair for asylum seekers as well as for theStates themselves.

The Regulation is criticisedfor the following reasons:

• The consequences of asylum seekertransfers which rarely take into account thefamily ties or social or cultural links of asy-lum seekers with the country in which theyrequested asylum before being expulsed.

• The Regulation’s non-consideration of themajor differences that persist between thedifferent European asylum systems (gran-ting rates, reception system, integrationmeasures, etc.).

• The regulation’s non-consideration of thenumber of asylum requests in the MemberStates.

• The almost systematic use of detention inimplementing transfers.

• The non-consideration of the specificneeds of vulnerable people (unaccompa-nied minors, migrants with health problems)

• The risks of fundamental rights being vio-lated in the event of readmission.

On the basis of these considerations, Fo-rum réfugiés and other European NGOsdecided to collaborate on the Dublin trans-national project to reinforce the NGOs’ ca-pacity to provide information and assis-tance to Dublin procedure asylum seekersand to eliminate or at least limit the negativeeffects of the procedure.


1 - The Council Regulation(called Dublin II) no.343/2003,dated February 18 2003, setsout the criteria and mechanismsfor determining the Stateresponsible for examining anasylum application presented inone of the Member States by athird country national

As part of the project to build a common European asylum procedure, the

Member States wanted to put an end to the problems of asylum shopping and

asylum seekers in orbit. “Asylum shopping” is the process by which people

whose first request for protection in a European Member State has been de-

nied, file one or more other applications in another EU state. Inversely, “orbi-

ting” asylum seekers are those for whom none of the European States consi-

der themselves to be competent to process their protection application.

The Dublin Regulation,the European stakes and

the project’s goals


I. I. Generalpresentation

When it was first drawn up and adopted in 2003,the Dublin Regulation (often known as Dublin II)was part of the ongoing European Union processto harmonise asylum application proceduresthroughout Europe in terms of reception condi-tions, asylum procedures and the actual definitionof the content of each possible type of protection.It was one of the first asylum harmonisation lawsto be adopted. This rapid adoption was partlydue to the fact that the States found it easier toagree on the technical mechanisms to regulateflows rather than on a common definition of re-fugee protection. The very nature of the textclearly shows that efficiency prevailed in this mat-ter: it is a community regulation that is directly ap-plicable in every Member State without needingto be transposed into national legislation.

The gradual creation of a community databasewithin the European Union to share the finger-prints of any person having passed through orstayed in a Member State2, has given furthermeaning to the Dublin system. Council Regula-tion no. 2725/2000, December 11, 2000, concer-ning the creation of the “Eurodac” system tocompare fingerprints for the purposes of impro-ving the efficiency of application of the Dublinconvention provides for the creation of a centraldatabase containing the fingerprints of three ca-tegories of foreigners: asylum seekers, peoplecrossing an external EU border illegally and peo-ple residing illegally within the EU. This electronicsystem makes it considerably easier to prove thepassage and/or residence of asylum seekers inanother European country. It came into effect onJanuary 15, 2003.

I.1.Content of the DublinRegulation: principles,criteria and mechanisms

The Dublin Regulation came into effect on March17, 2003, and applies only to asylum requestsmade after September 1, 2003. On September 2,2003, the European Commission published an ap-plication regulation to specify certain practical as-pects of the Dublin Regulation.

The Dublin Regulation applies to the 27 MemberStates of the European Union, except for Den-mark, where Dublin I remains applicable until agree-ment is reached with the European Union. Norwayand Iceland are also concerned by Dublin II. In2008, Switzerland also joined the Dublin system.

I.1.1. The two mechanismsto determine the responsiblestate: take chargeand take back

Dublin II provides for two categories of situations,each governed by its own mechanism. The diffe-rence between the two lies in the lodging or notof a first asylum application before arriving in thesecond Member State. It is this “trace” of passageof an asylum seeker in a first EU Member Statethat triggers the procedure to determine whichState is responsible. Although these two mecha-nisms both lead to the transfer of the asylum see-ker from one State to another, they differ in thedeadlines they impose regarding implementationof the procedure.

� The take charge mechanismThis mechanism applies to asylum seekers whohave passed through or stayed in a EuropeanUnion member state without lodging an asylum ap-plication and who have moved on to another State.

� The take back mechanismsThis mechanism concerns asylum seekers whohave lodged a first application in one MemberState and a second application in another State.The first asylum application may be under exa-mination, the asylum seeker may have been re-jected, or have withdrawn or abandoned his ap-plication.


2 - Reference to the Eurodacsystem (EC) no.2725/2000,application date 28/02/2003

The overall context of theDublin regulation

Article 3-2 of the Regulation says that a Statecan always examine an asylum request evenif, under the regulation, it is not responsible fordoing so (sovereignty clause).

I.1.2. The criteria for determiningthe responsible State

The responsibility of a State is established ac-cording to the strength of the link between theasylum seeker and the State. There are a total ofeleven criteria, grouped into four main categoriesof links (family, administrative, material and fact).As well as these categories, the Regulation pro-

vides for a set of humanitarian situations to be ta-ken into consideration.

Each of the criteria to determine the responsibleState is only applicable if the previous criterion isnot applicable to the situation in hand. This is theRegulation’s principle of the hierarchy of criteria(Article 5). The final criterion used if none of theprevious criteria apply is that of the place of filingof the asylum application (Article 13).

In any case, the situation on the date of the ap-plicant’s first application to a Member State is thesituation taken into account (Article 5-2).


3 - Article 15of the Dublin II

regulation is notbinding upon the States.

It merely representsan available possibility.

4 - Article 12of the application

regulation of the EuropeanCommission.

5 - Article 17of the Dublin II regulation

6 - Article 17of the Dublin II regulation.

7 - Article 15of the Dublin II

regulation is notbinding upon the States.

It merely representsan available possibility.

8 Article 17of the Dublin II regulation

Family ties

CRITERIA

Unaccompaniedminor

Family tieswith another/otherrefugees(s)

Family tieswith another/otherasylum seeker(s)

Respect of familyunity for simultaneousor successive asylumapplications

Family and/or culturallinks

ARTICLE

6

15 § 33

7

8

14

157

RESPONSIBLE STATE

State in which a family memberof the minor is legally present

State in which the minor fileshis/her asylum application ifhe/she has no family in anotherMember State of the EuropeanUnion

State in which a familymember of the minor,other than his/her parentsor legal guardian4, is present

State in which the refugeefamily member(s) is(are) present

State in which the family mem-ber(s)’ asylum application isbeing examined

State responsible for the largestnumber of asylum applications,failing that, the State responsiblefor the oldest applicant

The State may decide to acceptresponsibility independently ofthe established criteria

REMARKS

This family unity must be in theminor’s best interests.

This family unity must be in theminor’s best interestsIf the take charge deadline is ex-ceeded because of necessary re-search, this may not interfere withcontinuation of the determinationprocedure.

Written consent for this familyunity must be obtained fromthose concerned5.

The asylum application mustnot have already been refusedon merit.Written consent must be obtainedfrom those concerned .

This criterion is applied to decideon situations where the strictapplication of the determinationcriteria would result in familymembers being separated.

Applications must be relativelyclose in time to justify theapplication of this article.

Written consent must be obtainedfrom those concerned6.


9 - The list of theseproofs and indexes is givenin the appendicesof the Commission'sapplication regulation.

Administrative and material ties:entry and residence of the person

CRITERIA

Valid residencepermit / visa

Residence permitexpired less thantwo years ago

Visa expired less thansix months ago

Residence permitexpired more thantwo years previously

Visa expired morethan six months ago

Illegal entry and/orillegal residence of atleast five months

Return tothe country of originbetween the periodof residencein the requestedMember State andthat of the requestingState

ARTICLE

9

9

9

10-1

16§3

RESPONSIBLE STATE

State issuingthe document

State issuingthe document

State in whichthe request was made

State in whichthe applicant arrivedor in which the applicantstayed

State in which the latestasylum application wasfiled

REMARKS

If there are several residence permitsor visas, the responsible State is theone that issued the document whoseperiod of validity is longest or whoseexpiry date is the furthest away.

The State remains responsible evenif the document was issued on thebasis of false identity.

If the document was obtainedillegally, the State to which thedocument is related is not responsibleif the fraud occurred after issueof the document.

The person must not have left the terri-tory of the Member States since issueof the residence permit in question.

The visa must have permitted actualentry into the Member State.

The person must not have left the terri-tory of the Member States since issueof the residence permit in question.

The visa must have permitted actualentry into the Member State.

The responsibility of the State concer-ned expires 12 months after the bordercrossing.

Proof or indications of the reality of thearrival must be provided9.

The responsibility of the State concer-ned is only established if:

- The asylum seeker voluntarilyleft the Member States forat least 3 months

- If the asylum seeker has novalid residence permit forthe Member State concerned

Or with no deadline conditions if:

- The requested State tookand actually implemented themeasures necessary for the asylumseeker to return to his countryof origin after the rejectionor withdrawal of the asylumapplication.


10 - Articles 11 (1), (2) and (3)of the European Commission's

application regulation.

I.1.3. Different proceduraldeadlines depending on themechanism

In cases where a Member State believes thatanother State should be responsible for proces-sing an asylum application that has been lodged,deadlines are defined to guide the relations bet-ween the states. There are three categories ofdeadline :- The deadline for referral by the requesting Stateto the requested State

- The deadline for the requested State to res-pond

- The deadline for the asylum seeker to be trans-ferred

These deadlines may vary depending on which ofthe two Dublin Regulation mechanisms the asy-lum seeker falls under: take charge or take back.

These deadlines are legally binding and if theState to which they apply fails to comply, theresponsibility for examining the asylum applica-tion automatically falls to the defaulting State.

Specific cases of situations of dependency

CRITERIA

Pregnancy /newborn child

Serious illness

Serious handicap

Old age

Caution: the situations listed in this table are merely possibilities; derogation from the Regulationremains at the States’ discretion

ARTICLE

15§2

RESPONSIBLE STATE

States normallyleave the family membersconcerned togetheror take the necessarymeasures to unite them

REMARKS

The situation of dependencymay concern either the asylumseeker or one of the membersof his/her family10.

The family ties must haveexisted in the country of origin(i.e. a priori any family member).

The need and the opportunityto reunite a family will beassessed on the basis of:

- the family situation in thecountry

- causes of separation- the status of any variousongoing procedures (asylumor immigration law)

- the capacity of the asylumseeker or the family memberto actually provide the requiredassistance

The choice of the State andthe date of transfer will dependon the dependent person’scapacity to travel.

Proof of any kind canbe presented.

� Requested State response deadline


11 - Article 17 (2)line 1 – urgency can bedeclared when the asylumapplication occurs aftera residence refusal,illegal residence,implementationof deportation measuresor detention

12 - Article 5of the applicationregulationof the EuropeanCommission

� The deadline for referral by the requesting State to the requested State

Referral to the responsible State

Take in charge

Take back

ARTICLE

art.17-1

art.17-1 al.2

art. 20

RESPONSIBLE STATE

The request must be sent within three months of registrationof the asylum request

Failure to comply with this deadline shall result in the State inwhich the asylum application was filed becoming responsiblefor its examination.

Since no deadlines apply to this article, the State is not held toany deadline for presenting a take back request.

Positive response or no response from the requested State

Take in charge

Take back

ARTICLE

a. 18-1

a. 20-1-b

RESPONSIBLE STATE

The requested State must respond within two months of reception ofthe request or, in cases of urgency declared by the requesting State,within a period that may be between one week and one month11

Failure to respond within this period is consideredto be acceptance.

The requested State must respond within two weeks if the requestis based on data obtained via EURODAC.

If the data comes from other sources, the requested State has upto a month to respond.

In both cases, failure to respond within the periods stipulatedisconsidered to be acceptance.

Negative response from the requested State

Take chargeand take back

ARTICLE

a.18-5a. 512

RESPONSIBLE STATE

Refusal from the requested State must be justified in detail.

The requesting State may demand re-examination of thesituation within three weeks of receiving the negative response.

The requested State must then respond to this re-examinationrequest within 2 weeks.

For the re-examination procedure, the response deadlines (twomonths, one month or one week) are not restarted.


13 - Article 7 of theapplication regulation of the

European Commission

14 - Dublin II regulation

I.1.4. Asylum seeker transferconditions

The Dublin Regulation and its application regu-lation13 set out the asylum seeker transfer condi-tions applicable to the requesting State for takecharge or take back situations.

Once the decision – either implicit or explicit – totake charge of or take back the asylum seekerhas been made, the asylum seeker is notifiedthat his application will not be examined by theState in which he is, and therefore that he mustbe transferred to the responsible State (art. 19(1)and (2)14).

This decision must be justified and indicate thedeadline within which the transfer must takeplace. The transfer may be “voluntary” or “for-ced”:

• If the transfer is “voluntary”, a last transfer datemust be set for the asylum seeker.• If the transfer is “forced”, there are two possi-ble means of implementation:- “controlled departure” which involves the asy-lum seeker being accompanied by a State re-presentative up to boarding

- “under escort” which involves the asylum see-ker being accompanied by a State representa-tive until he is handed over to the authorities.

In all cases, the requesting State is required to re-turn all documents to the asylum seeker or to themembers of the escort team, otherwise theymust be passed on the authorities of the re-quested State by any other appropriate means.

� Transfer decision appeals

An appeal may be lodged against the transferdecision, but this does not suspend execution ofthe transfer. However, the Regulation does sti-pulate that this appeal may be suspensive ofexecution of the transfer on the basis of a caseby case court decision under national legislation(article 19(2)).

� Asylum seeker transfer from the requesting State to the requested State

Take chargeand take back

ARTICLE

a.19-4

RESPONSIBLE STATE

The transfer deadline period starts with the explicit or implicit responsefrom the requested State.

There is a 6-month deadline for the transfer.

If the asylum seeker is in prison, this deadline is extended to 12 months.

If the asylum seeker has absconded, this deadline is extended to 18months.

If there is no transfer within these deadlines, responsibility for examiningthe asylum request falls to the requesting State.

II. Application report:the European situation

II.1. Information for asylumseekers under the Dublinprocedure

The access to information by Dublin procedureasylum seekers is one of the major difficultiesobserved at a national level.

Very often, there is no information available.It is not given in writing or orally (Poland, France,etc.) and even where information is available, it isfrequently insufficient.

For example, in Italy, asylum seekers only re-ceive summary information on the Dublin pro-cedure and often receive no information at all.In general, they glean information from otherpeople who have already experienced the Du-blin system. In Belgium, as soon as they arriveand lodge an asylum application, asylum see-kers are given an information brochure by theAliens Office and the Office of the Commissio-ner General for Refugees and Stateless Per-sons. These brochures contain basic informa-tion about the Dublin Regulation.

When this information is provided, it is generallyprovided in writing only, it is not always availa-ble in a language understood by the asylumseeker and may be expressed in a way that isnot understandable to the asylum seeker (someof whom are illiterate). Furthermore, interpretersare rarely used to provide information for asylumseekers. Information is generally.

The mandatory information stipulated in Article3(4) of the Regulation is often not delivered, par-ticularly the type of request (take charge or takeback), the dates of referral and response fromthe State, the Dublin Regulation deadlines, theconsequences of the Dublin Regulation, the dif-ferent stages of the Dublin procedure and thepossibilities of appeal. Similarly, information thatis not mandatory but which often seems essen-tial, such as the person’s rights as an asylumseeker under the Dublin procedure (accommo-dation, social assistance, legal aid, health care)is not delivered either.

Furthermore, asylum seekers generally receivelittle information about the possible country ofreturn (asylum system, reception conditions,etc.). This can be explained by the difficulties forrefugee associations and the authorities to ac-tually obtain information on the legislation, pro-cedures and practice in other countries. Know-ledge of the Regulation’s application isincomplete and the little information available isnot compiled to ensure accessibility.

Many European countries do not fulfil their obli-gation to inform asylum seekers. There are someexceptions however. In Belgium, the Commis-sioner General for Refugees and Stateless Per-sons published a brochure in 2009 for asylumseekers. In Ireland, the authorities published aninformation brochure about the asylum process,which includes information about the Dublin Re-gulation. This brochure is available in 24 lan-guages. In France, the asylum seeker's guidewas published jointly by the Ministry of Immi-gration and Forum réfugiés (first published in2005 and updated every four years).

In Poland, asylum seekers receive basic infor-mation on the asylum procedure at the begin-ning of their own application. This information isin written form. Once a positive decision hasbeen made, written information on the furthermeasures to be taken – a request for social as-sistance for integration – is provided. Access toinformation about the appeal procedures in alanguage understood by foreigners is thereforeguaranteed. Asylum seekers receive no supportfrom the authorities to find detailed informationabout Polish laws and regulations concerning in-ternational protection in Poland. Our experiencehas shown that the information provided by theauthorities is not sufficient. Asylum seekers of-ten seek information from NGOs.

In view of the lack of information and the ab-sence of any initiative from the authorities in thisarea, various NGOs have published informationbrochures for asylum seekers. For example, theHungarian Helsinki Committee has collabora-ted with the UNHCR to publish a brochure. Thisbrochure, which has been translated into tenlanguages, contains information about the asy-lum procedure and rather briefer information onthe Dublin procedure in Hungary for asylum see-kers. Such brochures describe the proceduremore clearly. Furthermore, HHC lawyers visit thereception and detention centres regularly to pro-vide information to asylum seekers concernedby the Dublin procedure.

Ultimately, and in spite of the information provi-ded, we have observed that very few asylumseekers are fully aware of the procedure, even ifthey understand that the country in which theyare wants to send them to another Europeancountry. They often do not understand why theauthorities want to send them away.


II.2. Application of thesovereignty andhumanitarian clauses

The sovereignty and humanitarian clauses arerarely used and when they are, it is generally toreunite families or to protect people with healthproblems. In Ireland, these clauses are very rarelyapplied since national legislation stipulates that inthe case of transfer decision appeals, the courtmay only take into account the hierarchy of cri-teria. The only possibility is to appeal to the Mi-nister and to request application of the soverei-gnty clause, which is only granted on very rareoccasions.

II.3 Rights and receptionconditions of asylumseekers

In most European countries, asylum seekers un-der the Dublin procedure have the same rights asother asylum seekers. Some States however ap-ply specific measures to these asylum seekers.

In France, an asylum seeker under a Dublin sum-mons is not eligible for the main assistance pro-vided for asylum seekers, since he is not admit-ted as a resident. He may not claim the ATA(temporary support allowance)15 and cannot behoused in a CADA (reception centre for asylumseekers). CADAs are specialised structures whichprovide not only accommodation but also so-cial, administrative, legal and medical assistancefor asylum seekers. However, in a decision da-ted October 20, 2009, the Council of State ruledthat asylum seekers under the Dublin procedurecame under the “Reception” directive and assuch, the Prefectoral authorities should at leastcover their fundamental needs. After this ruling,theMinistry of Immigration published a circu-lar on 18/12/2009 asking the Prefects to ensurethat asylum seekers under the Dublin II Regula-tion were accepted into the emergency accom-modation system until notification of the deci-sion concerning referral to the responsible State.

While asylum seekers under the Dublin procedureare supposed to have the same rights as otherasylum seekers, in practice, and particularly interms of accommodation, they are confrontedwith the same difficulties as those encounteredby all asylum systems at present. In terms of ac-commodation, for example in Belgium, there are23,344 accommodation places throughout thecountry. Half of the places are in small structures(individual accommodation), and the remainingplaces are in large accommodation centres(group centres) managed by the Red Cross andthe government. Belgium is faced with an asylumcrisis. Since 2009, more than 7,000 people foundno accommodation, and Dublin procedure asy-

lum seekers were no exception. Since Septem-ber 2009, more than 3,000 emergency accom-modation places have been created but a relati-vely large number of people are still withoutaccommodation.

In Poland, the number of refugees and asylumseekers without accommodation is estimated at2,000.In Austria, the freedom of movement of asylumseekers under the Dublin procedure was limitedby new legislation that came into effect in 2010.They are issued with a green card and not au-thorised to leave the district. Sometimes, theyfind themselves infringing this ban, particularlyto go to the offices of their advisory organisations,thereby exposing themselves to fines of 5,000euros, and 10,000 euros for a second offence.Further offences are punishable by imprisonment.

II.4. Detention of asylumseekers under the DublinRegulation

National European legislation provides for the de-tention of asylum seekers under the Dublin Re-gulation if there is a presumed risk of ascondmentor to enforce readmission. Generally speaking,the detention of asylum seekers by the transfer-ring country ranges from frequent but not syste-matic (Austria) to almost systematic in certaincountries (France, Hungary, etc). Sometimes, thisdetention may be imposed from the start of theprocedure before the requested State has evenresponded and no readmission decision hasbeen made. Dublin asylum seekers may be de-tained after their transfer to the country respon-sible for examining their asylum application, eventhough they want to request asylum, as is so-metimes the case in Romania if their asylum pro-cedure submitted in this country ended whilethey absconded. They are detained even if theyask acces to a new asylum procedure until RIOor the court grants them access to the territory.

Inversely, countries like Spain do not detain asy-lum seekers under the Dublin procedure eitherwhen they arrive after a transfer to Spain or in or-der to transfer them to another European coun-try; in fact, Spain never forcibly executes read-mission decisions. If the asylum seekers do notleave Spain within 15 days of receiving the trans-fer decision, they are permitted to remain in thecountry. Spain does not deport them but they re-main illegal immigrants until expiry of the 6 monthdeadline or the 18 month extended deadline wi-thin which Spain is supposed to transfer the asy-lum seeker to the responsible State. After expiryof this deadline, Spain becomes officially res-ponsible for examining the asylum application.

In Austria, asylum seekers under the Dublin Re-gulation are not systematically detained under


15 - Daily allowancestipulated by Directive

2003/9/EC dated January27 2003 concerning

the minimal standardsfor the reception of asylum

seekers in Member Statesand article L. 5423-8

of the Employment Code.

Austrian legislation concerning foreign nationals(Fremdenpolizeigesetz FPG). Previous legislation(paragraph 76/1 FPG) stipulated that a foreignnational could be arrested if necessary to imple-ment a deportation procedure or a residenceban, or to enforce a readmission order. The lawsaid that “arrest is used when necessary” whichimplied that there had to be a specific reason toarrest the person.

A person legally present in Austria could be ar-rested under certain circumstances if the autho-rities suspected that the person was planning toabscond from the asylum procedure. This lawhas now been forgotten. Between 2005 and2008, the authorities arrested almost all asylumseekers under the Dublin procedure. After thou-sands of appeals against this use of detention,the Constitution Court and the AdministrativeCourt ruled that such arrests were illegal.

The Home Ministry added a new paragraph in2010 that once again confirmed the detention ofasylum seekers at the start of the Dublin proce-dure. This new paragraph, 76/2a FPG, statesthat the authorities may arrest a person if:

- They decide upon deportation from the coun-try. Even if the decision has not been made, itcan still be enforced.

- The asylum seeker has been informed that theauthorities have refused his request for rea-sons specific to the Dublin procedure and fornot having complied with the territorial restric-tion order (all asylum seekers must remain inthe country in which they lodged their first asy-lum application).

- If the asylum seeker has twice failed to complywith the notification of presence procedure(asylum seekers whose admission procedure isunderway and who are not living in accommo-dation centres are required to present them-selves to the commissariat every 24 or 48hours).

- Whenever necessary to ensure the asylum pro-cedure or the readmission of a person.

This new formulation of detention reasons is ac-tually similar to the previous one. Detention isonly legal for specific reasons related to the per-son and his actions.

The authorities, however, read it differently andclaim that the interests of the law are more im-portant than the human rights of any person.

� Detention conditions

Conditions in the detention centres vary. Forsome, like the deportation centres in Poland, fo-reign nationals are subjected to very strict de-tention conditions. They have no access to re-creational or training activities, are locked up incells all day long and their access to the tele-

phone, to healthcare or social, legal and psy-chological assistance is very limited. Equally strictdetention conditions are also found in Hungary,for example, in the Nyiabator centre, whose de-tention conditions are the same as those of highsecurity prisons.

In Austria, detention conditions are difficult. Manypeople go on hunger strikes to protest againstthe conditions of their detention. Statistics re-port that approximately one third of all detaineesgoes on a hunger strike.

� Time of placement in a detentioncentre

A person may be placed in a detention centreupon two different occasions: before transfer inorder to make the transfer and/or upon arrival inthe responsible country to which he has beentransferred.

Poland and Hungary are the two main countriesinto which asylum seekers are readmitted.

In Poland, asylum seekers can be placed in de-tention centres upon arrival. Simply crossing theborder illegally or attempting to do so are validreasons for detaining a migrant. When an asylumseeker leaves Poland, he abandons his proce-dure and if he is transferred back to Poland, hemust request that his file is re-opened.

In 2010, Hungary adopted a policy to detain Du-blin asylum seekers systematically. Contrary toSection 49 (5) of the Asylum Law, asylum seekerswere held in Békéscsaba throughout the Dublinprocedure, which can take between a few weeksand several months. Some asylum seekers aredetained by the border police while the admissi-bility of their application is assessed (and some-times afterwards). The maximum period of de-tention in immigration jails is 12 months. If theimmigration authorities decide to place the asy-lum seeker under the Dublin procedure, the ad-missibility procedure is suspended until the out-come of the Dublin procedure is known.

In the event of a minor infringement (illegal bordercrossing or illegal residence), asylum seekers canbe detained and subjected to very severe treat-ment, generally reserved for the perpetrators ofvery serious crimes.

It is important to point out that the situation inHungary has been a source of particular concernin recent months. Previously there were only 4detention centres but during the summer of2010, the authorities opened another 11, therebytripling the detention capacity. It appears thatsince then, these temporary detention centreshave been closed, but the capacity of the four oldcentres will be increased.


In Belgium and France, detention for the pur-poses of making a transfer is possible and com-monly used but not systematic.

In France, only asylum seekers under a readmis-sion order based on CESEDA Article L.531-3can be detained. The readmission order alwayscomes after identification of the responsibleState. The maximum detention period in Franceis currently 32 days, but transposition of the Re-turn Directive is likely to result in an extension ofthe maximum detention period to 45 days.

Italy does not use, or only rarely, administrativedetention for Dublin asylum seekers. Accordingto the law, asylum seekers are detained if theyare under or refuse to submit to a deportationdecree.

In Austria, detention practice changes regularlyand measures are often taken against certainnationalities. For example, since October 2009,measures have been taken against Afghans – acertain number of whom are arrested when theyrequest asylum and most are arrested when theyreceive notification of a negative decision (and aremore or less threatened with a six-month prisonsentence to dissuade them from appealingagainst the decision). Between 2008 and 2010,if the asylum seeker was living in an accommo-dation centre, he was detained for a maximum ofone night and then deported immediately. De-tention was only extended to one or two weeksif he refused deportation.

Detention practice changed in 2010. Any singleperson who had been to more than one countryand was accused of withholding informationconcerning his itinerary or his personal life wasliable to be arrested and sometimes even at thevery first stage of the asylum application proce-dure. The risk of arrest was very high for peopletransferred back to Austria after deportation,those present in the country for several days wi-thout requesting asylum and anyone who did notvoluntarily present themselves to the authoritiesand was submitted to a routine identity check(such checks have been implemented muchmore often in the past 6 months).In February 2010, several people were arrestedduring their interview at the Federal Office res-ponsible for asylum or after notification of a ne-gative decision. It is difficult to assess anychanges in the current situation.

� Detention duration

The duration of detention varies considerablyfrom 32 days in France to 6 months in Romaniaand up to a year in Hungary. In Poland, the du-ration of detention may be between 30 and 60days. This period can be extended if the asylumseeker, while detained, receives notification ofthe refusal of refugee status or subsidiary pro-

tection, putting an end to his tolerated residenceand instructing him to leave the national territory(deportation order). The period of detention canalso be extended if the asylum seeker receivesthe deportation order before leaving the Polishterritory.

In France, since transfer is generally organised be-fore arrest, the average period of detention is rela-tively short. As a rule, transfer flights are scheduledfor the day after placement in a detention centre.Families are also often placed in detention in themorning before being taken to the airport in the af-ternoon or the next day. This implies difficulties interms of guaranteeing appeals against the transferdecision since asylum seekers often do not havetime to consult the legal aid services. In suchcases, it can be impossible to lodge an appeal be-cause of a lack of time. Asylum seekers often haveno documents other than the transfer decision. Itis therefore impossible to check the regularity of theprocedure, particularly in terms of compliance withthe deadlines stipulated by the Regulation.

In Austria, the detention period under the new le-gislation is two months from when the person re-ceives notification of refusal of his application.The law clearly indicates that the authorities mustendeavour to keep the detention period to a mi-nimum. The text specifies the cases in which de-tention can be extended beyond the two monthperiod:

• If the foreign national cannot be deported be-cause the procedure is not finished, detentionmay last up to six months.

• If the identity and nationality of the asylum see-ker are unknown or if the authorities do nothave the necessary documents to return him tohis country of origin or if the asylum seeker re-fuses deportation, detention can be extendedby ten months over a two year period. In thiscase, the foreign national can be detained for6 months, then freed before being detainedagain for a further 4 months.

New legislation under discussion allows for an ex-tension of this period to 18 months instead of thecurrent 10.


II.5. Right to an effectiveremedy against transferdecisions

� Non-suspensiveeffect of appeal

The non-suspensive effect of the appeal is a ma-jor problem. Asylum seekers are too often trans-ferred without having time to formulate an appealor to wait for the appeal decision. The legal rightsof asylum seekers are thus not protected. In Hun-gary, re-examination of the transfer decision or-dered under the Dublin procedure does not sus-pend the transfer and does not allow for apersonal appearance before the court.

Re-examination is therefore only based on legalprocedures and formalities. The deadlines arevery short and asylum seekers have only threedays to submit their request before the court.European Union countries that grant a suspen-sive appeal against the transfer decision are few,but Poland can be cited as the exception.

� Effectivenessof the remedy

Besides the non-suspensive effect of the appeal,very real problems arise in guaranteeing the rightsof asylum seekers under a readmission measure.In Ireland, asylum law is the only area of lawwhere there is no precedence in spite of the factthe English and more generally Anglo-Saxon lawis based on the principle of legal precedence. Ju-risprudence in asylum law is not public and is notaccessible to lawyers. Only asylum seekers, on acase by case basis, may be granted access tothe jurisprudence database, and such authorisa-tion is only valid for the case in hand.

In Denmark it is almost impossible to have a Du-blin transfer decision changed. Although a formalprocedure for appeals against transfer decisionsexists, it remains difficult in practice to obtaincancellation of the decision. The Danish RefugeeCouncil has lodged over a hundred appealsagainst transfer decision without obtaining a sin-gle cancellation.

Furthermore, in certain cases, it can be diffi-cult for asylum seekers to assert their right toan appeal against a transfer decision.

� Access to legal assistance oradvice from NGOs

Generally speaking, asylum seekers have accessto legal assistance via NGOs or legal aid systems.However, this right is not guaranteed to the samelevel in all countries. Detention conditions and the

weakness of charity structures or legal aidschemes affect the quality of legal assistance forasylum seekers in detention centres.

In Poland, detainees have the right to use the te-lephone, send letters and meet personally with arepresentative of the UNHCR, with organisationsworking on refugee issues and with legal aid or-ganisations. People in the so-called deportationcentres often report that their rights to commu-nicate with NGOs were limited.

In France, detainees have the same rights asother foreign nationals in detention: the right to aninterpreter, a doctor, a lawyer and the right tocontact their family and legal assistance.

In Hungary, the lawyer has access to the file andcan meet the asylum seeker even in detention.There is a national scheme to provide those inneed with free legal assistance, which is paid forby the State, but this scheme does not apply toasylum seekers. The legal fees paid by the stateare very low. Legal assistance and representationfor asylum seekers currently requires specific le-gal and linguistic knowledge, which are not com-mon among Hungarian lawyers. Translation andinterpreting costs are not covered by the legal aidscheme proposed by the State, which makesexternal funding essential. The Hungarian HelsinkiCommittee, a partner NGO in this project, pro-vides assistance and legal representation for asy-lum seekers (including those under the Dublinprocedure). This activity is funded by the Euro-pean Refugee Fund.

In Switzerland, legal advisors do not make regu-lar visits to detention centres and are not infor-med of the arrival of newly detained asylum see-kers. Furthermore, asylum seekers do not alwaysreceive full information about the possibility ofcontacting legal advisors, and the short appealdeadline of 5 working days makes it difficult tocontact a legal advisor in time. Detained asylumseekers can be represented by lawyers paid bythe State, but those are only responsible for de-tention issues and not asylum problems. An in-dication of these problems might be current sta-tistics showing that the appeal rate in Dublincases is much lower than for other asylum deci-sions (in 2010 only 3.4% compared with 66% af-ter negative asylum decisions and 42% afterinadmissibility decisions not concerning Dublin)*.


* Département fédéral dejustice et police (DFJP),Rapport sur les mesuresd’accélération dans le domainede l’asile, Mars 2011, p. 17,http://www.ejpd.admin.ch/content/dam/data/migration/rechtsgrundlagen/gesetzgebung/asylg-aug/ersatz-nee/ber-beschleunig-asyl-f.pdf.

16

II.6. Accessto the asylumapplication procedureafter transfer

There do not seem to be any particular pro-blems in accessing the application procedureafter transfer. In general, transferred asylum see-kers have access to the normal and not the ac-celerated asylum procedure and resume theirprocedure where they left off. Certain difficultiesmay arise for asylum seekers who have alreadyreceived a negative decision, for example in Aus-tria. In such cases, the asylum seeker may lodgea second application, but this has no suspensiveeffect and the migrant is likely be placed in a de-tention centre. He may therefore be deported tohis country of origin during the course of hisasylum application procedure.

The suspensive effect applies only if there is achange in the situation in the country of origin(not in the applicant’s situation). Thus, war brea-king out in the person’s country of origin may bea valid reason for him not to be deported duringa second or third application, but new reasonsfor requesting asylum, such as being a politicalactivist in a foreign country, is not (which in ac-tual fact, represents a violation of the GenevaConvention).

In any case, the administrative formalities facingthe asylum seeker obviously differ from onecountry to another; the harmonisation of asylumsystems is proving difficult to achieve.

These differences, aside from the conditions ofreception and the question of detention of asy-lum seekers, mainly lie in the actual implemen-tation of the asylum procedure. They include theduration of the procedure, the rate of grantingprotection and the type of protective status gran-ted.

In Austria, it is difficult for an asylum seeker toobtain protection. In certain cases (generally ne-gative decisions), the decision is made before thefirst interview and the asylum seeker is informedof the ruling during the interview. In other cases,the asylum seeker may wait for months and so-metimes even for years before a first interviewand therefore any decision. Sometimes, the de-cision and the entire procedure are completed injust a few months, while in extreme cases, itcan take up to ten years. An asylum procedureoften takes between 5 and 6 years.

Inversely, in Hungary, asylum applications areprocessed relatively quickly: generally within 60days and this period may be legally extended bya further 30 days. The Immigration Office usuallymakes a decision within 45 to 90 days. As a rule,the asylum procedure takes place within thedeadlines imposed, which proves highly satis-

factory. However, appeals before the court takelonger. Legally, the court has 60 days to make adecision, but in practice, the appeal procedurecan take several months.

In Ireland, the rate of granting refugee status isvery low (1.3% in the first instance). Concerningsubsidiary protection, 75% of applications arepending a decision. For the remaining 25%, only23% of applicants received a positive decision.Besides these two forms of protection, “leave toremain” may be obtained, the duration of whichmay vary from 6 months to a year or more. Ho-wever the right to family unity is not automaticallygranted. In practice, the Irish authorities encou-rage people requesting subsidiary protection toaccept the “leave to remain”. Asylum seekers areunder pressure to accept since if they refusethis “leave to remain”, their application is retur-ned to the bottom of the pile.

DUBLIN TRANSNATIONAL PROJECT Final report


Decisions on asylum applications in 2009

TOTAL FIRSTINSTANCE

FINALDECISIONSON APPEAL

TOTAL FIRST INSTANCE

DECISIONS * POSITIVE DECISIONS **

FINAL DECISIONS ON APPEAL

# RATE OFRECOGNITION (%)

# RATE OFRECOGNITION (%)

Data are rounded to the nearest five.0 means less than 3.- No decisions taken during the reference period.* The total number of decisions refers to the number of administrative decisions rather than the number of individuals.** Rate of recognition is the share of positive decisions (first instance or final on appeal) in the total number of decisions at the given stage.In this calculation, the exact number of decisions has been used instead of the rounded numbers presented in this table.*** Data on final decisions on appeal are estimates.

Source: Eurostat, “EU member states grant protection to 78,800 asylum seekers in 2009”

EU27 317,505 228,610 88,895 78,820 61,750 27.0 17,075 19.2

Belgium 21,700 14,365 7,335 3,190 2,910 20.2 280 3.8

Bulgaria 695 645 50 280 270 41.7 10 21.6

Czech Republic 950 530 415 125 100 18.8 25 6.0

Denmark 2,095 1,650 440 920 790 47.9 130 29.7

Germany 33,505 26,780 6,730 12,055 9,765 36.5 2,295 34.1

Estonia 25 25 0 5 5 17.4 0 0.0

Ireland 6,560 3,135 3,420 395 125 4.0 270 7.8

Greece 16,460 14,350 2,105 210 165 1.2 40 2.0

Spain 6,195 4,480 1,710 380 350 7.8 30 1.8

France 54,840 35,295 19,545 10,415 5,050 14.3 5,365 27.4

Italy 22,875 22,000 875 8,550 8,440 38.4 110 12.5

Cyprus 6,515 3,855 2,660 1,210 1,130 29.3 80 3.0

Latvia 55 40 15 10 10 19.0 5 20.0

Lithuania 195 145 55 45 40 29.4 5 9.3

Luxembourg 670 465 205 140 110 23.6 30 15.3

Hungary 1,960 1,805 150 395 390 21.5 10 5.3

Malta 3,050 2,575 475 1,690 1,690 65.7 0 0.0

Netherlands 17,000 16,355 645 8,120 7,905 48.3 220 33.8

Austria 26,665 14,815 11,850 4,995 3,220 21.7 1,775 15.0

Poland 6,680 6,580 100 2,615 2,525 38.4 95 92.1

Portugal 95 95 0 50 50 51.1 0 -

Romania 1,210 540 670 210 115 20.8 95 14.2

Slovenia 200 130 70 20 20 15.2 0 0.0

Slovakia 355 315 35 195 180 56.2 15 41.7

Finland 2,715 2,650 60 1,010 960 36.2 50 80.6

Sweden 39,350 23,930 15,420 9,085 7,095 29.6 1,990 12.9

UK*** 44,890 31,040 13,850 12,510 8,350 26.9 4,155 30.0

Iceland 60 25 30 5 5 11.5 5 12.5

Norway 23,180 14,700 8,480 4,935 4,510 30.7 430 5.1

Switzerland 19,345 12,695 6,650 6,665 6,025 47.5 640 9.6

Liechtenstein 155 80 75 5 0 2.6 0 2.7


Decisions of first instance in 2010

TOTALDECISIONS

POSITIVEDECISIONS

REFUGEESTATUS

SUBSIDIARYPROTECTION

HUMANITARIANREASONS

INCLUDING :

- Not applicable*One or two decisions of first instanceData are rounded to the nearest five.

UE 27 222 105 55 095 27 045 20 400 7 645 167 010

Belgium 16 245 3 510 2 700 805 - 12 740

Bulgaria 515 140 20 120 - 375

Czech Republic 500 175 75 75 20 330

Denmark 3 280 1 345 660 520 170 1 935

Germany 45 310 10 445 7 755 545 2 145 34 865

Estonia 40 15 10 5 - 25

Ireland 1 600 25 25 5 - 1 575

Greece 3 455 105 60 20 30 3 350

Spain 2 785 610 245 350 15 2 175

France 37 620 5 115 4 095 1 020 - 32 505

Italy 11 325 4 305 1 615 1 465 1 225 7 015

Cyprus 2 440 425 30 370 25 2 015

Latvia 50 25 5 20 - 25

Lithuania 190 15 * 15 - 175

Luxembourg 475 70 55 15 - 405

Hungary 1 040 260 75 115 70 785

Malta 350 210 45 165 15 125

Netherlands 17 145 7 565 810 4 010 2 745 9 575

Austria 13 770 3 445 2 055 1 390 - 10 325

Poland 4 420 510 80 195 230 3 910

Portugal 130 55 5 50 - 75

Romania 425 70 40 30 0 355

Slovenia 115 25 20 * - 95

Slovakia 295 90 5 55 30 205

Finland 4 260 1595 165 1 240 190 2 665

Sweden 27 630 8 495 1 935 5 955 605 19 140

United Kingdom 26 690 6 440 4 445 1 850 140 20 250

Liechtenstein 85 * * - 0 85

Norway 15 255 5 300 2 975 1 565 760 9 955

Switzerland 18 475 7 815 3 380 1 155 3 280 10 660

III. Revision of the Dublin II Regulation

III.1. Context: weaknessesof the Dublin system

The lack of information for people concerned byhow the Regulation works, the lack of legal andmaterial follow-up for transferred asylum see-kers, the inability of charities and institutional or-ganisations to provide asylum seekers with relia-ble information about their transfer and theasylum system that will process their applica-tion, the total absence of any system to identifyand actually take into account the specific needsof vulnerable people are all examples of the mal-

functions observed in practice and the preju-dices suffered by asylum seekers under the Du-blin procedure.

The statistics published in the Eurostat databaseshow that the main “beneficiaries” of the Dublinsystem in 2009 were Germany, Switzerland andHolland. The Dublin system enabled a major dif-ference to be contrived between incoming andoutgoing transfers, thereby relieving the asylumsystems in these countries (see table below). Thehighest increases in asylum applications due tothe Dublin Regulation were observed in Italy,Greece and Poland.


: = no data available

Source : Eurostat.

The statistics for 2010are still largely incomplete,which is why we have chosento provide the data for 2009.

Application of the Dublin Regulation in Europe (2009)

Belgium 1,494 773 : 3,289 2,133 : :Bulgaria 196 144 32 73 36 24 8Czech Republic 581 448 235 298 259 259 -24Denmark 368 246 : 865 764 : :Germany 3,933 2,431 1,258 8,695 6,242 2,932 -1,674Estonia 38 33 11 10 6 1 10Ireland 188 140 85 497 355 243 -158Greece 9,506 5,711 1,202 32 17 8 1,194Spain 1,401 1,043 451 207 174 14 437France 2,648 1,176 820 5,349 3,430 1,010 -190Italy 7,430 3,616 1,800 1,160 680 41 1,759Cyprus 60 34 11 12 8 1 10Latvia 63 54 21 14 8 6 15Lithuania 280 222 28 44 17 7 21Luxembourg 133 87 51 187 146 117 -66Hungary 2,600 2,067 938 606 483 90 848Malta 1,125 1,079 473 6 4 3 470Holland 942 501 323 3,730 3,402 1,458 -1,135Austria 2,436 1,313 742 5,464 4,632 1,504 -762Poland 4,862 4,522 960 114 60 10 950Portugal 75 54 33 16 14 12 21Romania 478 372 126 102 76 15 111Slovenia 286 225 52 70 46 26 26Slovakia 698 358 232 132 62 39 193Finland 229 128 : 1,861 963 : :Sweden 2,624 1,970 : 4,501 3,513 1,086 :UK 1,062 490 368 2,664 2,098 995 -627Iceland 2 0 0 19 16 11 -11Norway : : : : : : :Switzerland 605 452 195 6,041 4,590 1,904 -1,709

Total 46,343 29,689 10,447 46,058 34,234 11,816

STATE TOTALREQUESTSRECEIVED

REQUESTS RECEIVED REQUESTS MADE

REQUESTSRECEIVEDACCEPTED

INCOMINGTRANS-FERS

TOTALREQUESTSMADE

REQUESTSMADEACCEPTED

OUTGOINGTRANS-FERS

DIFFERENCEBETWEENINCOMING /OUTGOINGTRANSFERS

The Dublin system evaluation report by the Eu-ropean Commission, published on June 6, 2007,already highlighted the ineffectiveness of the sys-tem. Between January 1 2006 and June 302007, of the 183,200 asylum applications lodgedin the Member States enforcing the Dublin sys-tem during this period, 39,000 requests were re-ceived by Member States under the Dublin sys-tem. A total of 46,700 asylum seekers wereconcerned by a Dublin procedure (which repre-sents 25.5% of the total number of asylum see-kers). Although 59% of these requests were ac-cepted, only 12,500 people were actuallytransferred during this period (European Com-mission impact study, SEC (2008) 2962). Thesefigures indicate that the Dublin – Eurodac systemaffects a large number of asylum seekers withinthe EU, although ultimately, only a very small per-centage are actually transferred.

According to a 2009 study by the academic net-work Odysseus for the European Parliament, thenumber of asylum applications lodged in Euro-pean countries under the Dublin Regulationconcerned by transfer requests is relatively mo-dest: transfers are requested by Member Statesin only 12% of cases.If we take the number of transfers actually im-plemented, the figure is even lower: the Odys-seus study reports that in 2008, for 11,000 takeback requests that were accepted, only 5,400people were actually transferred, i.e. about 50%.4,000 take charge requests were accepted in2008 but only 1,200 people were actually trans-ferred. This means that only approximately 30%of accepted transfers are actually implemented.

To conclude, one of the primary objectives of theDublin system, which was to eradicate multiplerequests, is far from being achieved. The statis-tics published in the 2010 annual report on the“activities of the Eurodac central unit in 2008”,23.3 % of asylum requests presented in 2009were multiple applications (i.e. at least a secondapplication). However, this figure includes notonly cases in which the person concerned lodgedmore than one asylum application, but also acertain number of cases in which the asylumseeker’s fingerprints were recorded by both theMember State in which the migrant lodged hisapplication and by the Member State ultimatelyresponsible for examining it. The Commission in-cluded measures to resolve this incoherency in itsproposal to modify the EURODAC regulation,adopted in December 2008.

III.2. State of progressof negotiations

III.2.1. Somewhat laboriousdiscussions

In December 2008, on the basis of its 2007 eva-luation among other things, the European Com-mission presented its proposal to revise the Du-blin Regulation16. Two years later, we are obligedto report that discussions between the two co-le-gislators remain laborious, to say the least.

The Commission’s proposal includes the follo-wing:

• To enlarge the scope of application of theRegulation to seekers and beneficiaries of subsi-diary protection.

• Concerning the efficiency of the system:

- Deadlines are fixed to make the proceduremore efficient and quicker;

- Several clauses have been clarified, particularlyin relation to the circumstances under whichthe responsibility of a Member State ceases toapply;

- A new measure concerning the sharing of re-levant information before making transfers isadded to facilitate cooperation between Mem-ber States in terms of the practical conditionsof transfer.

• Concerning the need for protection of asy-lum seekers:

- The Regulation describes in greater detail thecontent, form and deadline for communicatinginformation to those seeking international pro-tection;

- The Regulation provides for a right to appealagainst the transfer decision and requires thecompetent authorities to decide whether ornot to suspend execution and allow the personconcerned to remain in the country until the de-cision is notified. Furthermore, the right to legalaid and/or representation, as well as translationassistance if necessary, is also clarified in orderto ensure greater effectiveness of the right toappeal;

- A new measure is added, recalling the princi-ple whereby no-one may be placed in deten-tion simply because he has requested interna-tional protection. To prevent the arbitrarydetention of asylum seekers under the Dublinprocedure a limited number of reasons for de-tention are proposed;

- The right to family unity has been broadened toinclude family members who have been gran-ted subsidiary protection and who reside legallyin another Member State and to make it man-datory to reunite dependent persons;


16 - European parliamentand Council proposal

for a regulation settingout the criteria and

mechanisms to determine theMember State responsible

for examining an applicationfor international protection

presented in one of the MemberStates by a third country

national or stateless person,COM(2008) 820 final/2,

December 3 2008.

- The proposal enhances the protection grantedto unaccompanied minors during the Dublinprocedure to ensure the respect of their inte-rests.

• To provide a solution for situations in whichthe reception capacities and asylum schemesof Member States are subjected to particularpressure and where the level of protection ofthose seeking international protection is in-sufficient.In the case of particular pressure suffered by cer-tain Member States with limited reception andabsorption capacities, a new procedure is defi-ned in the Regulation to enable the suspension ofDublin transfers to the responsible Member State.This procedure can also be applied if it is fearedthat after a Dublin transfer, the asylum seekers willnot benefit from sufficient standards of protectionin the responsible Member State, particularly interms of reception conditions and access to theasylum application procedure.

The European Parliament adopted its position atthe first reading regarding the Commission’s pro-posal in May 200917. Since then, the Europeanelections have brought certain changes: theDutch rapporteur, Jeanine Hennis-Plasschaert(ADLE - liberal democrat group), is no longer aEuropean member of parliament. A new Euro-pean Parliament, formed by the June 2009 elec-tions, and the new liberal Swedish member ofparliament, Cecilia Wikström, have continuedwork on this subject and discussions with theCouncil. Having replaced J. Hennis-Plasschaertas rapporteur, Cecilia Wikström wanted confir-mation of the position adopted by the EuropeanParliament in May 2009. This confirmation wasobtained on November 29 2010 during a meetingof the Civil Liberties, Justice and Home Affairscommittee (LIBE). That the new European Par-liament chose not to re-discuss the positionadopted in May 2009 was good news for allthose who defend the rights of asylum seekers,since there was no guarantee that the new par-liament would adopt a position as favourable asthat adopted previously.

… continued disagreementon certain pointsWithin the Council, discussions still appear tohave reached a stalemate regarding certain mea-sures of the Commission’s proposal, i.e.:- the definition of family members in order toreinforce the right to family unity; the definitionof detention in order to better define the pla-cement procedure;

- the mandatory individual interview so that it is nolonger organised at the States' discretion only;

- the right to appeal against transfer decisions inorder to ensure a right to effective remedy; andlastly

- the transfer suspension mechanism to preventspecific pressure or insufficient levels of pro-tection in certain Member States.

The Council’s position has still not been formali-sed but it appears that the procedural guaranteesthat would benefit asylum seekers under theCommission’s proposal would not see the light ofday if it was up to the Council alone.

It seems to be the transfer suspension mecha-nism that poses the largest problem betweenthe two co-legislators. While most members ofthe Council would be in favour of simply elimina-ting the system proposed by the Commission,the European Parliament’s position in May 2009promoted ambitious, restrictive mechanisms forsolidarity, considering that the fair sharing of res-ponsibility was one of the cornerstones of thejoint policies of the European Union. Although theparliamentary assembly supports the temporarytransfer suspension mechanism, it mainly insistsupon the introduction of mandatory instrumentsfor all States including:

1) the formation of teams of national asylum ex-perts to assist the Member States faced withlarge numbers of asylum seekers.

2) the creation of a relocation program18 to en-able beneficiaries of international protection to bereceived by another Member State.The European Parliament also invites the Euro-pean Commission to make full use of its infrin-gement procedures if countries continue to fail toenforce community law.

Since the two co-legislators are not changingtheir positions, the ball now seems to be in thecourt of the Commission, which according to thestatements of Commissioner Malmström, is wor-king in collaboration with the Hungarian presi-dency to find a compromise. According to the in-formation available, an “emergency mechanism”is under discussion to replace the temporary sus-pension mechanism. These initiatives are not li-mited to a simple change of wording. Firstly,concerning the nature of the system: it would bea last resort measure envisaged in exceptionalcircumstances and for a maximum period of sixmonths. Secondly, concerning the reasons for itsapplication: the system envisaged would onlyapply if a Member State were in a situation of par-ticular urgency.

The other possibility considered by the Commis-sion (application of the procedure when the stan-dards of protection in the responsible MemberState are insufficient) would be eliminated.Finally, concerning its triggering: the Commis-sion would not have the power to implement thesystem as the Council would also have a say inthe matter, which will not only considerably com-plicate the procedure, but also involve its maincritic… This compromise is therefore worlds awayfrom the initial proposal; the new mechanism ap-pears to be more of a symbolic measure than anactual effective system.


17 - European parliamentlegislative resolutiondated May 7 2009 on thedirective proposed by theEuropean Parliament andCouncil setting out the criteriaand mechanisms to determinethe Member State responsiblefor examining an applicationfor international protectionpresented in one of the MemberStates by a third countrynational or stateless person,COM(2008)0820 –COD/2008/0243.

18 - Besides the term“relocation”, “internalresettlement” can alsobe used to describe the transferfrom one Member Stateto another of a person whohas been grantedinternational protection.Relocation measuresare the sign of solidaritybetween Member Statesand for the moment,have only been testedfrom Malta to other States,including France, Germanyand Ireland.

III.2.2. M.S.S. v. Belgiumand Greece: a discussion catalyst?

While most States remain staunchly opposed tothe transfer suspension mechanism, the Euro-pean Court of Human Rights in M.S.S. v. Bel-gium and Greece on January 21 2011 ruledagainst the systematic application of the DublinRegulation, calling into questions one of its sa-crosanct foundations, the supposed equiva-lence of national systems within the EU. TheGrand Chamber ruled that sending asylum see-kers to Greece was a violation of Articles 3 (pro-hibition on inhuman or degrading treatment) and13 (right to an effective remedy) of the EuropeanConvention on Human Rights (ECHR)19.

Aside from its immediate implications, thecourt’s ruling, by condemning Dublin transfers toGreece, offers an new angle on the Commis-sion’s proposal and should, or so we hope, notonly serve as a catalyst to the negotiations butalso promote the main advances in terms ofreinforcing basic rights as proposed by theCommission.

� Firstly, the rightof asylum seekers to informationand a mandatory interview:

The M.S.S. v. Belgium and Greece ruling confir-med the right of asylum seekers to informationand the need for a personal interview in order toensure that the responsible Member State isdetermined according to the States’ obligationsas set out in Articles 3 and 13 of the ECHR. Thecourt thus considered that the interview pro-cess in Belgium as part of a Dublin proceduredid not enable the applicant to present his rea-sons for not wanting to be transferred toGreece. This ruling could therefore support theCommission’s proposals in this area.

In Article 4 of its revision proposal, the Com-mission defines in greater detail the content,form and communication deadline of informa-tion to be provided to asylum seekers. In parti-cular, it proposes the adoption of a common in-formation brochure to be used in all MemberStates. According to the Commission, if asylumseekers are better informed of the Dublin Re-gulation, its terms of application and its impli-cations, they will better understand the proce-dure that determines responsibility andtherefore be better equipped to assert theirrights. Article 5 of the Commission’s proposalalso introduces the obligation for MemberStates to conduct an individual interview. Thepurpose of this interview is to “facilitate de-termination of the responsible Member State,and particularly to enable the applicant to pro-vide relevant information to identify this Mem-ber State and to inform the applicant orally ofthe application of this regulation”20.

� The right to effective remedy:

Concerning the complaint regarding the absenceof effective remedy under Belgium law, Belgiumpointed out that a suspension request could bemade “in cases of extreme urgency” before theAliens’ Appeals Board, which would have sus-pended the migrant’s deportation to Greece un-til the Council’s decision was pronounced, i.e. upto 72 hours. The court answered that this pro-cedure does not fulfil the criteria established in itsjurisprudence in matters of effective remedy: if aperson alleges that his return would expose himto treatment prohibited under Article 3 of theECHR, his complaint must come under “closeand rigorous scrutiny”, and the competent au-thority must be able to “examine the substanceof the complaint” and offer “suitable redress”21.

With this ruling, the court condemns the Dublinsystem as a whole and the current absence ofsystematically suspensive appeals against trans-fer decisions in particular22. The judges alsoclearly explained the court’s approach to theright to effective remedy, shedding new light onthis point of the Commission’s proposal.

The proposal also includes the reinforcement oflegal guarantees granted to applicants, by inclu-ding a right to appeal against transfer decisions.In spite of the Council’s objections, it will now bedifficult not to include Article 26(4) of the Com-mission’s proposal in the final version of the re-vised regulation, stating that “no transfer maytake place until the court’s decision has beenmade”.

However, the court’s appreciation appears tocontradict the Commission’s proposal for a two-stage examination of the suspensive effect of ap-peal: a competent court would rule within a sus-pensive period of seven days on the suspensiveeffect of the appeal after expiry of this sevenday period23. Aside from the unnecessarily com-plex nature of such a system, the court seems toquestion its coherency with Article 13 of theECHR: according to the judges, the effectivenessof remedy according to Article 13 of the ECHRrequires both “close and rigorous scrutiny” ofthe “substance of the complaint” and the sus-pensive effect of the appeal.

In its definition of effective remedy, the M.S.S v.Belgium and Greece ruling also seems indirectlyto promote Article 26(6) of the Commission’sproposal on the possibility of granting legal aidand/or free representation to asylum seekers (ifthe applicant is unable to pay himself). In prac-tice, asylum seekers in many States have very lit-tle time to prepare their appeals against transferdecisions. A further problem is the technicality ofappeals against transfer decisions. In thiscontext, and as recalled by the court, it is es-sential that free legal representation be madeavailable.


19 - See below fora summary of the case

and the immediate implicationsof the court‟s decision:

“Greece: a symptomof a Europe ill at east

with its asylum”

20 - COM(2008) 820 final,regulation proposed

by the European Parliamentand Council settingout the criteria and

mechanisms to determinethe Member State

responsible for examiningan application for international

protection presentedin one of the Member Statesby a third country national

or stateless person, article 5,December 3 2008.

21 - Press releaseby the court official,

no. 043, “The Belgianauthorities should

not have deported anasylum seeker to Greece”,

21.01.2011.

22 - See the Forum réfugiéspress release,

« Système Européen „Dublin‟ : renvoyer

des demandeurs d'asile vers laGrèce viole la Convention

européenne des droitsde l'homme »

("European Dublinsystem: sending asylumseekers back to Greeceviolates the European

Convention on HumanRights"), January 21 2011.

23 - See article 26(3)of the Commission‟s

proposal (COM(2008)820 final)..

� Finally, on the transfersuspension mechanism:

As already mentioned, the Council is very firmlyopposed to the system proposed by the Com-mission; a system which was favourably viewedby the European Parliament in May 2010 as along-term solidarity instrument. The court’s rulingoffers a direct plea in favour of the Commis-sion’s measures in Article 31(2) of its proposal24.In this second scenario, it is proposed that theCommission would have the power to decide tosuspend all applicant transfers to a MemberState in which the level of protection was consi-dered to be insufficient.

As it already pointed out a decade ago in thecase T.I.v. Great Britain25, the court recalls thatthe competent authorities must not merely as-sume that the applicant will be treated accordingto the guarantees of the Convention; they mustcheck how the authorities in the transfer countryapply their asylum legislation in practice. Al-though, in the case of Greece, the court had ru-led in another case in December 200826 that thereturn of an asylum seeker did not represent aviolation of the Convention, it did point out quiteclearly that since then, numerous reports hadbeen published on the practical difficulties posedby application of the Dublin system in Greece.The court therefore prevents States from hidingbehind systematic application of the Dublin Re-gulation and questions its foundation assumptionthat national asylum systems within the Unionare equivalent to one another


24 - Extracts fromarticle 31 (COM(2008)820 final):Paragraph 1 :“When a Member Stateis faced with a particularlyurgent situation whichplaces anexceptionally heavyburden on its receptioncapacities, asylum systemor infrastructure,and when the transfer ofapplicants for internationalprotection in accordancewith this Regulationto that Member State couldadd to that burden,that Member State mayrequest that such transfersbe suspended”.Paragraph 2 : « Whenthe Commission considersthat the circumstancesprevailing in a MemberState may lead to a levelof protection for applicantsfor internationalprotection which isnot in conformitywith Community legislation,in particular the Receptionand Procedure directives,it may decide in conformitywith the procedure laid downin paragraph 4, that alltransfers of applicants inaccordance with thisRegulation to the MemberState concerned be suspended.”

25 - European Courtof Human Rights, T.I v. GreatBritain, no. 43844/98,March 7 2000.

26 - European Courtof Human Rights, K.R.S.v.Great Britain, no. 32733/08,December 2 2008.



27 - Adopted on 18th February2003, the Dublin Regulation(called Dublin II Regulation) isdesigned to identify as quicklyas possible the Member Stateresponsible for examining anasylum application on the basisof objective and hierarchicalcriteria. Where another MemberState is designated responsibleunder the criteria in theRegulation, that State isapproached to take charge ofthe asylum seeker andconsequently to examine his/herapplication. If the Member Statethus approached accepts itsresponsibility, the first MemberState must transfer the asylumseeker to that Member State.

This project aims to provide better informationabout, and closer monitoring of, asylum seekersin a Dublin Procedure27. In order to do this, a net-work of specialist European associations and in-formation tools will be put in place. The projectwill start in December 2009 and will last for 18months. The objective is to guarantee continuityin the legal, social and medical support provided

to asylum seekers transferred under the DublinRegulation. In addition to Forum réfugiés, who iscoordinating the project, 11 other European as-sociations will be participating.The project was implemented during 18 months(December 2009 and May 2011). The projectwas funded as one of the European RefugeeFund’s Community Actions.

I.Why such a project ?

The idea and the need for such a project stem from several simple facts :

- Due to the lack of information about, andmonitoring of, asylum seekers who are in Du-blin Procedures, these individuals do not re-ceive continuous legal and practical supportand often have their social and medical supportinterrupted.

- The lack of general information or transparencyin the Dublin System makes the work of as-sociations which help asylum seekers inDublin Procedures extremely difficult on adaily basis. Indeed, they are presently unableto systematically deliver reliable and com-plete information to either asylum seekersor the authorities.

- In general, there are very few exhaustivetexts on the Dublin System which are bothup-to-date and accessible in several lan-guages. There is also a lack of documentation

on the different procedures of Member Statesfor the taking in charge, or the taking back, ofasylum seekers under the Dublin regulation.

- The Dublin System has significant conse-quences for a high number of asylum see-kers (in terms of procedural guarantees and re-ception conditions in particular), even though,in the end, very few of them are actually trans-ferred. This low proportion of successfultransfers can be partially explained by the lackof information given to asylum seekers on theDublin System and the lack of access to theprocedure and to reception in the State towhich they are transferred.

- The specific needs of vulnerable asylum see-kers are not taken into account during the pro-cess of taking in charge, or taking back, anasylum seeker.

II. General presentation of the project

� Its objectives

On the basis of the issues previously raised, the project’s general objective is to develop the system ofinformation in order to improve the way in which the Dublin regulation works. To do this, the project willconsist of two clearly defined missions, which are specific and interdependent:

The transnational Dublin project

1) The first mission is to strengthen the abi-lity of associations to inform asylum see-kers on the process of being taken in charge,or taken back by Member States under theDublin Regulation. This project aims to makeinformation booklets on national asylum sys-tems available to asylum seekers, as well as toprovide an individual analysis of an asylum see-ker’s situation in the State to which they aretransferred.

2) The second objective is to assure continuityin the legal, social and practical support provi-ded to the asylum seeker. Dublin Transfers oftenresult in an interruption in the legal, social andmedical support to which an asylum seeker is en-titled. For vulnerable asylum seekers, this inter-ruption can have serious consequences. The pro-ject aims to reduce the length of this interruptionby creating a network of associations providingsupport and assistance to asylum seekers.

� Who is involved? 28

In addition to Forum réfugiés, 9 European associations are involved in the project as partners, including:- Comisiόn Española de Ayuda al Refugiado (Spain)- Italian Refugee Council (Italy)- France terre d’asile (France)- Helsinki Foundation for Human Rights Czlowieka (Poland)- Hungarian Helsinki Committee (Hungary)- Irish Refugee Council (Ireland)- Jesuit Refugee Service Romania (Romania)- Verein Asyl in Not (Austria)- Flemish Refugee Action (Belgium)

Three associations who will not be receiving co-funding from the ERF are also participating inthe project, including the Swiss charity, l’Organi-sation Suisse d’aide aux réfugiés, the DanishRefugee Council and the Dutch Council forRefugees.

Therefore, the total number of Member Statesinvolved in the project is 12.

� Presentation of the tools developed

The information brochures on national asylumsystems and application of the Dublin regula-tion

This project has enabled the production of a col-lection of information leaflets on the various asy-lum systems in the Member States of the networkmember organisations. These leaflets presentthe asylum system, and in particular, the asylumapplication procedure, the rights of asylum see-


28 - See the organisationspresentation in the annexes

kers in terms of material and legal assistance, andthe national organisation involved, in the contextof a Dublin transfer. These leaflets exist in 6 lan-guages: English, French, Arabic, Russian, Farsiand Somali. For some, and when it proved ne-cessary, the national brochure was translatedinto the national language (e.g. Polish). Theseleaflets are freely available, in particular via theproject web site, so that they can be distributedas broadly as possible by the organisations wor-king with asylum seekers under the Dublin pro-cedure.

� Individual follow-upform of an asylum seeker underthe Dublin procedure

An individual information and follow-up form forasylum seekers has been developed. This formenables a review of the legal, social and medicalsituation of the asylum seeker and his family. If re-quired by the asylum seeker’s situation (vulnera-bility and risk of procedure abandon in particular),this form will be passed on to the member of net-work in the potential State of return to enable theorganisation to assess, on the basis of the infor-mation available, the situation that will be facedby the asylum seeker if the transfer procedure iscompleted. This diagnosis will focus on issues re-garding access to the procedure and materialassistance, particularly in terms of accommoda-tion and detention. This diagnosis will be pre-sented to the asylum seeker.

The follow-up form will also enable the networkmembers to obtain information immediately onthe situations of asylum seekers transferred un-der the Dublin procedure. The asylum seeker isinformed, prior to his transfer, of the possibility oftransnational follow-up by way of this individualform. If accepted by the asylum seeker, the formis transferred and the person is provided with thecontact details of the network member in thecountry of return. This information is transferredif required by the asylum seeker’s situation and ifthe latter accepts it. The information providesthe partner organisation in the State of returnwith detailed information on the legal, social andmedical situation of the transferred asylum see-ker before the actual transfer. This information en-ables the person’s arrival to be anticipated andavoids duplication of the follow-up process, thefirst step of which will have been completed bythe transferring country.

After transfer, the asylum seeker may be called toan assessment and orientation interview with thenetwork member receiving the individual follow-up form. This interview will enable validation of theform’s information, assessment of the applicant’ssituation and provision of information on the for-malities to be completed to restart an asylumprocedure and obtain legal follow-up and mate-rial assistance as quickly as possible.

The network members provide the project coor-dinator with a monthly observation report pre-senting their activities in terms of follow-up ofasylum seekers and the implementation of thetools available.

The issue of confidentiality of the informationpassed on was discussed at length by the part-ners.

It is true that individual follow-up forms containpersonal information on the situation of the asy-lum seeker and his/her family. Extreme care mustbe taken to ensure that this information is onlyavailable to the authorised people directly res-ponsible for the follow-up of asylum seekers un-der the Dublin procedure. In order to guaranteeconfidentiality, we have decided to set up a fra-mework for the use and transmission of these in-dividual forms. Firstly, a confidentiality clause ap-pears on the first page of the individual follow-upform. It concerns any person who comes intocontact with the file. Furthermore, this individualfollow-up form is in Word format, protected by apassword. The password is only disclosed to thepartners who have signed a partnership agree-ment with the coordinator.

This partnership agreement, signed by the legalrepresentatives, is binding upon the parties andcontains a confidentiality clause. The confiden-tiality clause expressly states that the individualfollow-up form can only be released by the per-son providing follow-up in the transferring coun-try to his counterpart in the responsible countryand ultimately to Forum réfugiés as project coor-dinator. Respect of confidentiality is the respon-sibility of the partner organisations who have si-gned the partnership agreement. Furthermore,the individual follow-up form will only be passedon to the partner organisation if consent is ob-tained from the asylum seeker. A permission formis signed by the asylum seeker, recalling theconditions of the consent and the purpose of filetransmission.

The tools developed for the project andthe final report are available on the pro-ject web site: http //www.dublin-pro-ject.eu, which also has a database offe-ring access to various documentsconcerning the Dublin regulation and itsapplication.


� A four-part schedule

The project had four distinct phases: a preliminaryphase, a test phase, an implementation phaseand a diffusion phase.

1 - Preliminary phase(December 2009- March 2010):

This will involved:

• Setting up the network (exchanging informa-tion, developing the strategy and timetable for therest of the project)

• Creating the models that will be used for the in-formation booklets, the individual files and themonitoring reports

• Developing the booklets and information toolsand transnational monitoring (also including theirtranslation into French, English, Arabic and Rus-sian, and if possible, into the languages of net-work members).

This first phase concluded with the organization,in March 2010 in Lyon, of a first full meeting, uni-ting all the participants. This will provide memberswith the occasion to confirm the different toolsand their translations, and to put in place a com-mon distribution strategy.

2 - Test phase(March 2010 – June 2010):

This experimental phase included:

• The distribution of the information bookletsto national and European associations andgovernment agencies.

• The use and communication of individualmonitoring files

• The conducting of evaluation and orientationinterviews

• The production of monthly monitoring reports

• The development of the website

To enable these objectives to be carried out, se-veral meetings and excursions will be organizedat national level, and also more widely, at the le-vel of the network:

- Information and coordination meetings organi-zed at national level (5 meetings per partner);

- National visits for the Romanian, Austrian, Hun-garian and Polish partners to detention andreception centres far from urban centres;

- A second full meeting in Vienna (Austria) inJune 2010, bringing together all the partners,the purpose of which was to assess the pro-ject’s progress thus far (the presentation of anintermediary report) and, on the basis of eachpartner’s experience, to amend, if necessary,the information and monitoring tools, as well asthe procedures for using them.

3 - Implementation phase(June 2010 – April 2011):

Once the tools have been tested and revised,they were systematically implemented during thisperiod. The procedure includes: the use and dis-tribution of the information booklets; the creationand communication of individual files; and theconducting of information and evaluation inter-views. The project will be monitored by themonthly reports produced by each partner anddistributed by the coordinator. The coordinatorwill also develop the website during the imple-mentation phase.

4 - Communication phase(May 2011):

A final conference will be organized in Brussels inMay 2011. Beyond those taking part in the pro-ject, this conference will also bring together otherparties who play essential roles in the supportand defense of asylum seekers at national andEuropean level. The objective will be to assessthe project, particularly the information and mo-nitoring tools, and the procedures for using them.On the basis of the monthly reports provided bythe network members, a final report will presentthe different tools developed and used duringthe project and the results obtained in compari-son with the initial objectives. The conferencewill also be the occasion to put together recom-mendations for the implementation of a syste-matic transnational monitoring of asylum see-kers in the Dublin Procedure.

The website will assure communication on all thetools put in place during the project. In addition,all documents relative to the project will be pas-sed on to the relevant European institutions andnational administrations, as well as to the Euro-pean Council on Refugees and Exiles (ECRE)and national networks of specialist associations.

� Expected results

Daily needs will be met : the monitoring andsupport of asylum seekers in the Dublin Pro-cedure will be improved

This project is being developed to respond toproblems related to the Dublin Procedure en-countered by asylum seekers and the associa-tions who support them on a daily basis. The pro-ject will provide the associations with a realnetwork of expertise and savoir-faire at Europeanlevel, enabling them to put in place informationand monitoring tools and to establish effectivemonitoring procedures.

In this way, the project intends to assure conti-nuity in the legal, social and medical support gi-ven to asylum seekers in the Dublin Procedure.Providing asylum seekers with reliable and com-


plete information on the asylum system of thecountry to which they are being transferred willhelp reduce the incertitude and anxiety whichDublin Transfers generally cause. Better informa-tion and better monitoring will reduce the numberof abandoned procedures which push asylumseekers to go underground.

For the mid-to-long term, a method to be im-plemented at European level

In the mid and long term, the aim of this projectis to become part of policy developed at Euro-pean level on the support and monitoring of asy-lum seekers, particularly the most vulnerable,within the framework of the Dublin Regulation.On 3rd December 2008, the European Com-mission presented its proposed recast of theDublin Regulation. One of the main amendmentsinvolves a better exchange of information bet-ween Member States and with asylum seekers.Other changes include a common informationbrochure to be given to asylum seekers (article4) and a personal interview with asylum seekers(article 5) on the Dublin Regulation. In thiscontext, it seems clear that the procedures andtools developed and implemented during theproject will constitute an interesting and usefulprecedent for the European Commission, theMember States, and even the future EuropeanAsylum Support Office.


from partnerorganizations on the

project implementation



Organization: Asyl In Not

I. National context:legislation on asylumand Dublin – Fieldobservations and recentdevelopments

Asylum legislation is regulated in Asylgesetz(AsylG) since 2005 and has been reformed seve-ral times since then. AsylG refers directly to the Du-blin regulation and provides an additional specialadmission procedure for persons under the Dublinprocedure.

After the application for asylum the Bundesasylamt(Federal Asylum Office) has to inform the asylumseeker within 20 days that they intend to reject theapplication due to the Dublin regulation. Therehave to be interviews – after legal advice and in thepresence of a legal advisor, who is employed bythe Ministry of the Interior, and if it is indicated me-dical examinations.

Bundesasylamt can reject the application due tothe Dublin regulation and transfer the person tothe responsible member state. The asylum see-ker has the right to appeal against this decisionwithin seven days. Asylgerichtshof (AsylumCourt) decides this appeal and has the power togive it suspensive effect within seven days.If there is no suspensive effect, the asylum see-ker can be deported without a final decision fromthe asylum court.

In case the application for asylum is a consecutiveapplication which is the case if a person applies forasylum and he or she was not deported since hislast application for asylum, or in cases where aperson was deported but applies for asylum within18 months after his last negative decision once

more, the application itself has no suspensive ef-fect. This means these asylum seekers can bedeported even without having a proper interviewand a decision they could contest.

The practice of detaining asylum seekers varies wi-dely and is regulated by Fremdenpolizeigesetzsince 2005 (FPG; Foreigners Police Act), whichwas also reformed several times since it was en-acted. It is possible to take a person to a deten-tion centre (Schubhaft) from the beginning of theDublin procedure, if there are suspicions that theasylum seeker will not cooperate with the proce-dure and will escape. It is also possible to detaina person when he / she receives his / her negativedecision from Bundesasylamt. Finally, at the end ofthe Dublin procedure (as well as throughout theentire procedure) it is also possible to arrest a per-son in order to guarantee his / her deportation.

The decision to detain a person depends mostlyon his / her own behaviour in the past for instanceif he / she was previously in many other Dublinmember states, if he / she gave the same perso-nal data in the member states, if it is a consecu-tive application, if it is a family or a single personand if he / she tells the truth about his / her travelto Austria. In practice there is also unequal treat-ment of different ethnic groups.

It is possible to lodge an appeal against this de-tention with Unabhängiger Verwaltungssenat(UVS; Independent Administrative Senate) whohas to decide the appeal within seven days incases where a person is detained.

The number of applications for asylum has de-creased significantly since 2002 from 39,000 to11,012 in 2010. This trend seems to be conti-nuing in 2011. For details see graphic below:

45 000

40 000

35 000

30 000

25 000

20 000

15 000

10 000

5 000

01999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

number of applications

2. Assessmentof the projectimplementation bythe partner organization

As the project needs a lot of administrative workin the background, Asyl in Not’s contact personinstalled in her office a few tools to make the hand-ling of the project’s tools as simple as possible.This was the follow up registry where every singlefollow up sheet must be filled in with name, code,date of filling in and passing on and also the sta-tus of the client and the follow up sheet.

They filled in the follow up sheet for every clientwho could be deported to another Dublin country.Most of the clients came to the office to seek helpby themselves, in some cases Asyl in Not’scontact person went to a detention centre to takecontact with them.

Asyl in Not’s contact person also formed a networkwith an NGO who takes care of asylum seekersand refugees from the psychological point of view,who also uses the follow up sheets in cases whereit seems necessary.In practice it was not hard to convince the clientsto take part in the project, as long as they couldsee advantages for themselves from it such as a

certain level of help should they be deported. Themost important thing was to make clear that fillingin the follow up sheet would not affect the asylumprocedure itself. Usually the worse their asylumprocedure in Austria looked the more they werewilling to take part.Although many people agreed to take part they of-ten moved on to another country, they did notmake contact with the relevant partner organisa-tion or returned back to Austria after a very shorttime. Additionally, it often was a problem for the re-levant partner organisations to find the clients andmake contact with them.

The homepage was the most important tool forAsyl in Not to spread the brochure to the otherasylum NGOs in Austria and to inform them aboutthe project itself.

However, there were also problems with the im-plementation of the project. This was on the onehand due to a lack of cooperation by the authori-ties in the reception centre Traiskirchen, on theother hand also due to the organisation of theconditions in the detention centres, which are vie-wed as normal prisons. So although Asyl in Notcould meet their clients in a detention centre it washarder to find other potential cases which couldhave been suitable for the project because theycannot make contact with the inmates.


CATEGORY

asylum seekers under the Dublin procedureassisted by your organization

asylum seekers under the Dublinprocedure who benefited froman individual diagnosis

asylum seekers directedto a partner

number of asylum seekers who receivedan appropriate information on Asylumand the Dublin procedure and benefitedfrom an orientation interview

Asylum seekers received from the partner

NUMBER

26 (with follow up sheets) [05.04.2011]about 10 cases were other requests where we passedon the contact data of the relevant partner organization(« my friend is in France and needs help – can youhelp me? »)

3

3. Analysis of theapplication of Dublinat national level(Case studies)

The most important topics for our clients were :

- family relations- health problems- insecurity of a certain country- integration

Most of Asyl in Not’s clients came to Austria be-cause of their relatives who already lived there asrefugees or at least as asylum seekers or withsubsidiary protection. These relatives were notjust distant relatives but also sons and daughters,brothers and sisters they lived in the same hou-sehold with for a long time, and even minor chil-dren and husbands and wives in cases where thestatus as a family member was formed at a latertime than the first application of asylum in Europe.In these cases it became very clear that the unityof the family was not respected, except in caseswhere the family was formed before the asylumseekers left their home countries, but even thenthey had to prove the existence of their family life.Applications due to Art 15 Dublin II regulation af-ter their first deportation to the responsible coun-try were treated very slowly and often refused,even in cases where the asylum seeker had a mi-nor child in Austria who had refugee status.In two cases Asyl in Not also noticed that minorswho came to their relatives to Austria were in onecase deported, in the other case sent to their mo-thers to Poland – as Austrian authorities claimed– but in fact the mothers have not been in Polandfor several months. The minors informed autho-rities of that during their asylum procedures butobviously nobody believed them or checked ifthis was true.

M. K., 22 years old, from Chechnya marriedher husband back in 2006, two months beforehe had to leave his home country. He is a refu-gee in Austria now for some time. Unfortunatelyhe said during his own procedure that he ismarried, but called her with her “private name”Maryam – which is completely different fromher “passport name” – a common phenomenonin Chechnya. So from his asylum procedure itwasn’t sure if she was the same person hementioned in his procedure.After two interviews her procedure was admit-ted because they could convince the Bunde-sasylamt that they were married before.

K. T. came to Austria in 2008 for the first timebecause she married a refugee. She becamepregnant, lost her baby, finally we also lost herDublin procedure and she was deported to Po-land, where she was in prison for a few months.All in all she applied for asylum in Austria two

times and finally gave birth to her son in Austria.Bundesasylamt first wanted to reject her son’sapplication too for Dublin reason and expelledhim with his mother to Poland, but finally ourappeal succeeded. According to Art 7 DublinRegulation the procedure was admitted forKhedi and her son.

Mr. M. I., Mrs. E. L. and their two chil-dren, aged one year and three years, the olderdaughter is seriously mentally and physical han-dicapped was almost separated by a decisionof the Bundesasylamt because Poland was heldresponsible for Mr. I’s case, while the Czech Re-public was held responsible for Mrs L’s andtheir children’s case. Asylgerichtshof claimedthis separation was a violation of Art 8 of ECHRand upheld the appeal.

Still, Austria’s authorities tried to prove that thiswas not a family and asked for a DNA-Test.The clients accepted that, but as they first couldnot pay the bill which was necessary to receivethe results. So Bundesasylamt once again ex-pelled wife and children to the Czech Republic,the husband to Poland, we appealed against it..Mrs. L and her children were deported to theCzech Republic. A friend of the family finally or-ganized the money, Asylgerichtshof gave theappeal suspensive effect, so they could comeback.Finally Asylgerichtshof upheld the appeal andthe family was admitted to the procedure a se-cond time and now has a procedure in merits.

The second most significant group of clients wereasylum seekers who were not given medicaltreatment in the responsible state, usually Poland.In general we saw that the general medical ser-vice in Poland was not bad, but there were veryserious singular cases where medical servicewas not provided and it led to a serious harm ofthese persons health. All of them came to Austriawith a live-threatening medical condition.

P. E. came to Austria for the first time in 2009with her 17 years old son, because her adoptedson has refugee status in Austria and she wantsher younger son to be in good hands shouldshe die. She has cancer and already had anoperation (hysterectomy) but no accompanyingchemotherapy. So the cancer was not gone.

Chemotherapy was started soon after shecame to Austria because her medical conditionwas very serious. Still Austrian authorities (Bun-desasylamt as well as Asylgerichtshof) couldnot see a violation of Art 2, 3 ECHR because inPoland her therapy would be continued anyway.At the beginning of October 2010 she was de-ported to Poland. She immediately went to thedoctor in Dembak, showed him her medical


papers from Austria where you can see theexact medical condition she has and which the-rapy she should get. The doctor said he is notinterested in “these papers in German”. He alsowas not interested when she said she had can-cer and needs her chemotherapy and he evenrefused to pass her case on to a hospital. Hesaid he could not do that.Once she had a seizure with heavy convulsionsand unconsciousness. When her son went forhelp they gave him the vitamin-Pills “Centrum”– his mother just has a weak circulation. Finallyshe came back to Austria, where the doctorsfound that she developed metastases in herlung during her two months in Poland.After her return to Austria her procedure was fi-nally admitted because the aggravation of hermedical condition as a result of a lack of medi-cal treatment was proven.

Mme T. M. is HIV-positive and now in her se-cond asylum procedure in Austria. She came toAustria via Poland and applied for Asylum inOctober 2008. She wanted to be in Austria be-cause she has relatives here. Austria rejectedher application and she was deported toPoland.In Poland she and her children were taken to adetention centre, they took away her medica-tion and her health became increasingly worse.Further medical treatment was explicitly refusedfor the reason that she was “already dead”. Soshe came back to Austria, where she appliedonce more for asylumIn Austria the doctors discovered a heavy ag-gravation of her disease. Still, Bundesasylamtrejected her application and expelled her toPoland once again. Asylgerichtshof upheld theappeal, pointing out that she could only be de-ported to Poland if it is ensured that she will getthe necessary treatment. Two more times Bun-desasylamt did not follow the Asylgerichtshof’sdirectives but expelled her two more times toPoland. Finally, after more than one year of Du-blin procedures she was admitted to the pro-cedure in merits.

There was also one baby with lung problemswho was kept in a detention centre for threemonths without any treatment. After they cameback to Austria and saw that the chances werevery bad they moved on to another country.

There were also reports from clients who repor-ted that they came to Austria because they didnot receive medical treatment in Poland. Therewas for instance one man who said he only re-ceived cough syrup – when he came to Austriahe was immediately taken to hospital because hehad tuberculosis. In another case an eight monthpregnant women (and her three minor childrenand her husband) received neither medical ser-vice, nor accommodation so they came back. In

one case a man had a hernia and he was notoperated on although he had severe pain be-cause it was too expensive.Still, there were also asylum seekers who saidthey always received the treatment they neededin Poland, but obviously there are still many inci-dences where in serious cases the treatment isnot guaranteed.

The third group are persons who did not feelsafe in the responsible state. These cases varybetween persons who have heard that Poland isnot a safe state, others said they have beenthreatened but not attacked, but there were alsomore serious cases.In one case a woman’s husband was killed – ob-viously for political reasons – in Poland and the fa-mily was threatened several times. After a longprocedure this woman and her children were ad-mitted in Austria and we never passed on the fol-low up sheet.

L. K. and her family ((her husband R.; twochildren from her first marriage, three childrenwith her second husband) comes originally fromChechnya and had to leave her home country atthe end of 2007 because her husband and hisbrother A. with his family (who also left thecountry at the same time) had serious politicalproblems. Back in Chechnya they all lived to-gether.In 2008 they came to Austria together with herhusband’s brother and his family and appliedfor asylum. They came via Poland, so all the ap-plications were rejected. R., L. and the familywas deported, while A., his wife R. and his fivechildren could stay in Austria.

L. and R. continued their asylum procedure inPoland but the family was threatened all thetime by “the persons R. fought together withbefore, who then changed sides and want himto change sides too” – so in fact he was perse-cuted by the Chechen government in Poland.

R. left the accommodation before long andstarted living with his friends. He hardly ever vi-sited his family, and if he did so, then at night.He told his wife to tell everybody that they aredivorced and that he married somebody else.But that did not help. One day there were menwho came to her to the accommodation insideher room, threatened her so that she wouldsay where her husband is. After that incidentthe family was brought to another accommo-dation. A little later, her 17 years old son wasthreatened on the street.So in 2009 they decided that they were notsafe in Poland and so L. and her five childrenleft for Sweden. Sweden did not assume Po-land to not be safe for the family. Sweden re-jected their applications and they returned toPoland.


L. and her oldest son were threatened severaltimes, so L. and her children (except her oldestson) went back to Austria in July. In August heroldest son followed the family. Two days later R.was killed and found dead and his mutilatedbody was found close to Warsaw’s train station.

Austria’s authorities initialized a Dublin proce-dure and finally expelled the family to Poland.The reasons were that a deportation is not aviolation of Art 2, 3 of ECHR and Poland is asafe state. Against this decision we made anappeal, pointing out that Poland is neither safefor this family, nor can the family be deportedbecause it is a violation of Art 2, 3 of ECHR. Ad-ditional they need the support of Aslan and hisfamily because of their extremely hard situation.Asylgerichtshof upheld the appeal and only avery few weeks later the family received refugeestatus.

In another case a twelve years old girl was almostraped in Poland and so the mother decided toleave Poland with her children. In this case we didnot succeed.

Finally the fourth group of Dublin refugees werethose who fled from a member state, which is ob-viously not capable or willing to make a properasylum procedure and offer the asylum seekersthe necessary social services. These were mostlypersons who came from Greece.

M. H. S. came to Austria via Greece for the firsttime in October 2008. This case was finally re-fused in October 2009. In December 2009 heapplied for asylum a second time and in Fe-bruary 2010 this application was also refusted.In February 2009 he was deported to Greece.In Greece he was kept in a detention centre forone week. After he was released he had pro-blems and went to Macedonia, where he stayeduntil June 2010. In June 2010 he returned toAustria and applied for asylum a third time.There he had a short interview, mostly concer-ning his way to Austria. He was taken to a de-tention centre – our appeal against this had nosuccess.

In July 2010 he was deported to Greece oncemore. Until then he never had a detailed inter-view about his stay in Macedonia from Februaryto June 2010, which is important regarding Art14 / 3 of the Dublin Regulation. After his de-portation we received another negative decisionwhich we contested. Asylgerichtshof finally upheld my appeal and admitted him to the pro-cedure and ordered more investigations in hiscase.After we had troubles to find him we finally ma-naged to contact him in Greece and struggledfor almost six months to get him back to Aus-tria legally, because Austria’s authorities (Bun-desasylamt as well as the embassy) did not see

themselves responsible for enabling him to re-turn. Finally with UNHCR’s help he could return.A second Dublin procedure with Greece whichwas initiated immediately after he arrived didnot end with Mr. S. getting expelled.

In very few cases integration was the reason whythey wanted to stay in Austria. This was only incases who were in the asylum law from before30.06.2008 and lived in Austria for a few years,until finally the Court of Administration rejectedthe application due to the Dublin II regulationwhile the applications had suspensive effect foryears and the families were in Austria legally. Thiswas especially hard for families with children whowent to school, were well integrated and sud-denly were deported to countries they had no re-lationship with.

According to my observations in my everydaywork for asylum seekers in Dublin proceduresand the exchange of information with AustrianPartner organisations I located the following prac-tices in general:

� vulnerable groups

Unaccompanied minors are usually examined(sexual characteristics, dental examination andpastern joint X-ray). These methods are verycontroversial because they do not take enoughregard to the deviating process of the physicaldevelopment in different races and ethnicities.Unaccompanied minors receive a legal advisor astheir legal representative.

Single mothers are not recognised as a vulne-rable group in the Dublin procedure.

Victims of torture are not recognised as a vul-nerable group in the Dublin procedure. Only incases where a significant trauma leads to a vio-lation of Art 2, 3 of ECHR in case of a deporta-tion the person will not be deported, which is veryseldom recognised.

� family unit and humanitarian clauseAs described above the family unit is violated inmany cases. Families which were formed afterthe first application in a member state are hardlyever subsumed under Art 7 of the Dublin regula-tion. Even families who were formed before en-tering Europe often have problems being reco-gnised as families.

� detention practicesAll detention centres are old prisons and they stillwork the same way: the inmates have to stay intheir cell all day long, except a walk for half anhour a day. The prison conditions are said to beworse than in other prisons.Detention practices are very different and seem todiffer based on the asylum seekers citizenship.Persons from Afghanistan or in general fromAfrica are more likely to be imprisoned than per-


sons from the Russian Federation. Men are in ge-neral more likely to be imprisoned. Although evenchildren and families are imprisoned, at least onenight before they get deported.The decision to imprison a person depends onthe person’s history and behaviour: was he inmany other EU-states before, did he give consis-tent personal data, did he hide from being de-ported before.In general there are phases where more personsare imprisoned, after the NGOs write more ap-peals against detention less persons were impri-soned. The law concerning detention of asylumseekers are tightened very often and lead to in-creasing numbers of persons in detention cen-tres. These laws are usually eased by the Courtof Administration so that the law conforms to theconstitution.

� transfersAsylum seekers are taken from their accommo-dation, usually in the middle of the night, so thatthe police is sure that everybody is at home. Incases where children will be deported, the policeofficers no longer carry weapons with them anddo not wear uniforms. In all other cases they do.There is also a translator with the police.Depended on the case the asylum seeker is lon-ger or shorter in prison before he is deported tothe responsible state. In most cases – even fa-milies – the asylum seeker has to be in prison forat least one night. During this period there are forinstance medical examinations, which should en-sure that the person can be transferred.Transfers take place by bus, plane or car (by carwhen there are very short distances, for instanceto Slovakia or Czech Republic). The time of thetransfer is planned so that the asylum seeker ar-rives in the morning in the responsible state.Documents of identity should be returned to theasylum seeker, but there are many cases repor-ted where asylum seekers was deported withoutthese documents.

4. Recommendationsat national level

- The cooperation of the national authorities waspoor, we did not even manage to see the de-tention centre and the reception centre at themeeting in Vienna.

- The use of the humanitarian clause is hardlyexistent and should be improved.

- The unity of the family is not maintained inmany cases and the situation is constantlychanging for the worse.

- All kinds of bad conditions in a Dublin memberstate (general conditions, medical conditions, apossible threat of the individual security) are ei-ther negated by the authorities, or claimed tobe irrelevant. That often leads to cases wherethe asylum seeker’s human rights are violated.

- There is no consistent judicature concerningDublin cases. Similar cases are often decideddifferently, as we can see from the case studiesabove.



Organization: Flemish refugeeAction (Vluchtelingenwerk Vlaanderen)

1.National context:legislation on asylumand Dublin. Fieldobservations and recentdevelopments

1.1. The Belgian procedure

Belgian law provides for two different kinds ofprotection statuses: the Refugee status in ac-cordance with the Geneva Convention of 1951,and the Subsidiary protection status in accor-dance with the European Qualification Directive(2004/83/EC).

The Belgian Alien Act of 15 December 1980 is themain national framework for these protection sta-tuses and the asylum procedure. The authoritiesresponsible for the examination of any applicationfor protection in Belgium are the Aliens Office, theOffice of the Commissioner General for Refugeesand Stateless Persons (CGVS/CGRA), the AliensLitigation Council and the Council of State.

This part focuses on the Dublin procedure; formore information on the asylum procedure pleaseconsult the information brochures.

The Aliens Office is the authority where all asy-lum applications are registered and processed.On the day of the application, the Aliens Officetakes a photograph and fingerprints of the appli-cant. They will also be screened for tuberculosis.The Aliens Office will do a first interview with theapplicant either that day or a few days later. Thisfirst interview focuses on the identity, the natio-nality and travel route to Belgium and is writtendown in a report. There is no lawyer present du-ring this interview.

In cases where there is no Eurodac-hit but in thefirst interview the applicant mentions passingthrough another Dublin Convention memberstate, the Aliens Office may do an extra “Dublin-interview” with the applicant, during which theyfocus more on the route. There is no report fromthis interview. According to statements from theDublin Unit of the Aliens Office this will changesoon and the Dublin interview will take place withthe first interview.

In cases where there is a Eurodac-hit and theAliens Office is almost sure the correspondingcountry will take the applicant back, the applicantwill immediately be placed in detention. This de-tention is allowed for a maximum of one month.However, in exceptional circumstances (compli-cated cases, for example when there are severalhits) detention can be extended for one additio-nal month. In cases where the applicant is not de-tained from the beginning, he will be called backat a later date or will receive the Dublin decisionby post.

When the Aliens Office finally decides anothercountry is responsible for the applicant and theresponsible country agrees to take the applicantback (or does not answer within the given time),the applicant can either be detained for onemonth in order to effectuate the return, or eitherreceive an order to leave the territory by a certaindate. In the second case one can ask financialhelp from the Aliens office in order to effectuatethe return.

Appeals against decisions of the Aliens Officeregarding the Dublin procedure take place at theAliens Litigation Council (ALC). This is calleda cancellation appeal and it has no suspensive ef-fect. This means that even after having lodged anappeal, the Aliens Office can expel the applicantor transfer him to another European country. Thisis why the law provides the possibility to lodge asuspension application at the same time. Thissuspension application allows applicants to askthat the decision by the Aliens Office will not beactioned during the appeal procedure before theALC. The ALC may reject the appeal or cancelthe decision and send the application back to theAliens Office for further examination.

In cases where the Aliens Office decides thatBelgium is responsible for the examination of theapplication, the application will be transferred tothe Office of the Commissioner General forRefugees and Stateless persons (CGVS) forexamination on the merits.

1.2. Reception

During the whole procedure – from the momentan application is made at the Aliens Office to thefinal closure of the procedure - any person who

applies for asylum has the right to reception.The reception is organised by Fedasil (FederalAgency for the Reception of Asylum Applicants)and consists of accommodation in a receptionstructure, meals, social, medical and psycholo-gical guidance, and also the possibility to haveaccess to certain training courses and pro-grammes of voluntary return. Only in this re-ception structure one will benefit from as-sistance from the state; if the applicantdecides to not stay there, he can only receivemedical support from the state. In principlethe first months of the stay will be in a col-lective reception centre, afterwards the ap-plicants can transfer to individual houses orstructures.

An important exception to this principle ofreception is made for persons who make acancellation appeal against their order toleave the territory (for example when Bel-gium decides another state is responsibleunder the Dublin Convention); as said, thisappeal has no suspensive effect by itself,which means the order is still enforceableand therefore the right to reception has en-ded. Only when this appeal is made togetherwith a suspension appeal the right to recep-tion continues on condition this suspensionappeal is sustained. When the cancellationappeal is sustained the right to receptionalso revives.

1.3. Statistics

In 2010 19,941 asylum applications were madein Belgium: 19,167 directly at the Aliens Office,304 in a detention centre, and 470 at the border.16,532 of these were first applications. The tenmost common countries of origin were Kosovo,Iraq, Russia, Afghanistan, Guinea, Serbia, Mace-donia, Armenia, DRC and Syria. 2,107 applicantsreceived refugee status in 2010, and 711 recei-ved subsidiary protection status.

In 2010 there were 3,382 Eurodac-hits; the lar-gest number of hits referred to Poland (701),Greece (447), Germany (333), Italy (246), and theNetherlands (242). 2,146 persons were finallydetermined to be Dublin cases and the respon-sibility of another member state.926 persons were detained after the agreementof the responsible state, in order to effectuate thereturn. 404 persons were detained while awaitingthe agreement of the responsible state.

2. Assessmentof the projectimplementation by thepartner organization

As stated in the introduction, Flemish RefugeeAction has but a few pilot projects in which itworks with asylum applicants directly; mainly,FRA gives information and advice to those wor-king directly with asylum applicants such as caseworkers andvolunteers, as well as lawyers. FRAwas highly dependent on other organizations toreach asylum applicants in the Dublin procedureand to complete the individual follow up file to besent - through FRA - to one of the partners in theDublin project.

Several organizations and partners were contac-ted to find ways to do this follow-up. Amongthem were organizations who visit detention cen-tres where Dublin asylum applicants are mostlyheld.

Another option that was explored, was looking forDublin cases in FRA’s project on individual hou-sing for asylum applicants, organized with seve-ral partner organizations. However, asylum ap-plicants are only allowed to apply for an individualreception place after an initial period of fourmonths in a collective reception centre; mostasylum applicants under the Dublin procedure re-ceive their decision while staying in one of the col-lective reception centres run by Fedasil. Moreo-ver, the applicants with a Dublin decision whowere present in the individual housing projectwere mostly asylum applicants who applied for amedical stay as well and for that reason could notbe transferred to the responsible member stateunder the Dublin convention (for more informationon this see below).

A third attempt was the publishing of an open callin two wide-spread newsletters among memberorganizations, volunteers and people interested inthe subject of refugees. In this case as well, nopositive response was received.

The lack of response is mainly due to the fact thatthose working with asylum applicants have a bigcase load and could not take up the extra workof interviewing the asylum applicant with regardto the Dublin project, and fulfilling the communi-cation and reporting needs with FRA.

FRA also did not receive any cases through theindividual follow-up files from the partners in theother countries. Meaning that in this way as wellthere was no follow-up possible in any individualcases.

For the abovementioned reasons FRA has notbeen able to implement the individual follow upand does not have statistics generated withinthis project.


Several times, references to partner organiza-tions in the project were made, mainly when la-wyers needed extra information about the asylumprocedure or the general situation in the countryto which their clients were to be transferred. So-cial workers in the closed reception centres andthe visitors of these centres were also informedby FRA of the existence of the information bro-chures and website during formal and informalcontacts.

FRA often receives questions about the Dublinprocedure through the legal helpdesk, which isopen to everyone – volunteers, social workers, la-wyers, asylum seekers etc. Moreover, FRA re-ceived questions on Dublin directly from asylumseekers who found FRA in several ways. In allthese situations the partnership under the projectand the information in the brochures proofed tobe very useful.

For the future, after the implementation of theproject, these aspects will keep helping FRA togive better assistance to everyone who comesinto contact with Dublin cases.

3. Analysisof the applicationof Dublin at nationallevel (Case studies)

3.1. MSS vs Greeceand Belgium

During the course of the Dublin project theECtHR ruled on the application of the Dublin re-gulation with regard to Greece. In this importantdecision the ECtHR decided that the detentionand living conditions in Greece are a violation ofarticle 3 of the ECHR, and that the lack of an ef-fective legal remedy for asylum seekers in thecountry is a violation of article 13 of the ECHR.With regard to Belgium, the transfer to Greece isconsidered a violation of article 3 of the ECHRand the “extremely urgent procedure” before theALC (named “Aliens Appeals Board” in the deci-sion) was considered to be in violation of article13 of the ECHR.

As this case was already discussed above, undersection I, this part will only consider the violationsby and implications for Belgium.

Violation of article 3 of the ECHR:

Firstly, Belgium was found guilty of indirect re-foulement, because – by sending him back - itexposed MSS to the risks arising from the defi-ciencies in the asylum procedure in Greece Evenif there is in theory a possibility to make an appealbefore the ECtHR in Greece, this is not a real op-portunity considering the problems asylum see-

kers encounter there. The Belgian authoritiesshould have known that there was no guaranteethat the asylum application of MSS was going tobe examined properly in Greece; not only shouldGreek law have been examined but also the waythe law is executed in practice.

Moreover, Belgium was found guilty of direct re-foulement, by knowingly exposing MSS to thedetention and living conditions in Greece (whichare considered a violation of article 3 of theECHR). The procedure before the Aliens Officeleft no possibility - for example on the question-naire - for MSS to state the reasons for objectingto his transfer to Greece. The argument of theBelgian state that MSS did not inform themabout the reasons for not wanting to be returnedto Greece is therefore unfounded. Moreover,the Belgian authorities knew about the situationin Greece, but nonetheless systematically ap-plied the Dublin regulation to transfer people toGreece without so much as considering the pos-sibility of making an exception. The Court consi-ders the diplomatic assurances by the Greekauthorities not to be sufficient to ensure ade-quate protection, given the reliable sources thathave reported about the situation in Greece, andgiven that they were only sent by Greece afterMSS received the decision that he had to leaveBelgian territory. They were also worded in ge-neral terms and contained no guaranteesconcerning the applicant in person.The Court considered that it was up to the Bel-gian authorities not merely to assume that MSSwould be treated in conformity with the Conven-tion standards but, on the contrary, to first verifyhow the Greek authorities applied their legislationin practice. Had the Belgian authorities done this,they would have seen that the risks the applicantfaced were real and individual enough to fall wi-thin the scope of article 3 of the ECHR.

Violation of article 13, in conjunction witharticle 3 of the ECHR:

The ECtHR ruled that MSS did not have an ef-fective remedy available to him against the ex-pulsion order. Since the Court found there to bea violation of article 3 against Belgium for trans-ferring him to Greece, there was an arguableclaim under article 3 relevant for the applicationof article 13 of the ECHR.The Court concluded that in “the extremely ur-gent procedure” applicants are prevented fromestablishing the arguable nature of their com-plaints under article 3 of the ECHR. The ALC li-mits its examination to verifying whether the per-son concerned had produced concrete proof ofthe irreparable damage that might result fromthe alleged potential violation of article 3 of theECHR, thereby increasing the burden of proof tosuch an extent to hinder the examination of themerits of the alleged risk of a violation. New ma-terial that was added by the applicant was alsonot always taken into account.


The Court found there to be some practical obs-tacles in the extremely urgent procedure as well,for example the fact that the lawyer has to appearfor a hearing at the ALC within one hour. And fi-nally, the Court states that it fails to see how, wi-thout a decision having suspensive effect, theALC could still offer the applicant suitable re-dress even if the ALC found a violation of article3 of the ECHR.

So far the decision of the ECtHR in the MSScase has had the following consequencesin Belgium:

• Since the 20th October, Belgium had alreadystopped transfers to Greece pending the decisionof the Court. Since the decision of the ECtHRBelgium has confirmed that it will no longer besending asylum applicants back to Greece. Allnew applications after this date for which nor-mally Greece would have been responsible, arenow examined by Belgium. For all the applica-tions that were made before this date, for whicha Dublin decision was taken and an order toleave the territory was delivered, the applicantswill be able to present themselves at the AliensOffice again once the six months for the transferunder the Dublin procedure has passed. Asylumapplicants who were granted an interim mea-sure by the ECtHR will have their Dublin decisionautomatically retracted and will be able to presentthemselves to the Aliens Office again for the exa-mination of their application by the CGVS.

• The Aliens Office is changing the questionnairethat is being used for asylum applicants under theDublin procedure. They are changing the ques-tionnaire in a way that the asylum applicant hasthe possibility to bring forward any reason fornot wanting to be transferred to the memberstate that is being held responsible.

• In a few important decisions of the 17th Fe-bruary 2011 the ALC has made clear the impactof the decision in the MSS case on the extremelyurgent procedure. The ALC is going to makesure that the burden of proof is lowered to a le-vel where the applicant will be able to establishthe arguable nature of the claim under article 3of the ECHR (but also other relevant articles inthe Convention such as for example article 8 ofthe ECHR). In deciding whether the applicant hasan arguable claim the ALC will take into accountthe general situation in a country as well as thespecific situation of the applicant. The ALCconfirmed that the extremely urgent procedurehas automatic suspensive effect for a period offive days in which the appeal has to be madeand during the examination by the ALC on themerits of the case. If the appeal is made after theinitial five days, the appeal will also have sus-pensive effect if the applicant establishes an ar-guable claim under article 3 of the ECHR. Theappeal will have suspensive effect until the deci-sion of the ALC.

3.2. Applicationsfor medical stay “9ter”by asylum applicants underthe Dublin procedure

In Belgium aliens can not only apply for refugeestatus or subsidiary protection status, they canalso apply for a medical stay. The application fora medical stay is based on article 9 of the AliensLaw of 15 December 1980. It consists of twophases; first a decision on the admissibility ismade and then on the merits.

The Aliens Office, department for ‘HumanitarianRegularisations (HR)’, is responsible for exami-ning these applications. When an asylum appli-cant applies for a medical stay before receiving afinal (negative) decision in the asylum procedurethe Aliens Office cannot deliver an order to leavethe territory until it has taken a decision on the ad-missibility and, in cases where the application isfound to be admissible, a decision on the meritsof the application. As a consequence, in case anasylum applicant under the Dublin procedure ap-plies for a medical stay before he/she receives theDublin decision, the Aliens Office can take the de-cision to hold another Member State responsible,but it cannot deliver an order to leave the territorybefore it has taken a decision with regard to theapplication for a medical stay.

The Aliens Office has informed us that the DublinUnit and the department for HR are trying tocoordinate their work on these cases so thatasylum applicants under the Dublin procedurewho applied for a medical stay only receive an or-der to leave the Belgian territory once they havereceived a final decision with regard to their ap-plication for a medical stay. As a consequence,the department for HR gives priority to the exa-mination of the applications ‘9ter’ made by asy-lum applicants under the Dublin procedure.

According to statements made by the Dublin Unitat the Aliens Office, Belgium will take up the exa-mination of the asylum application once the ap-plication for a medical stay has been declared ad-missible and the applicant is found not to be fit totravel to the other Member State. In cases wherethe application for a medical stay is based on thesituation in the country of origin of the asylum ap-plicant, the Belgian authorities will contact the au-thorities of the other Member State and discussthe case. We have not been able to confirm thestatements of the Dublin Unit in practice. Whatwe have seen in practice is that the departmentfor HR is often not able to take a decision withinthe Dublin delay of six months. These applicantscan present themselves at the Aliens Office wheretheir asylum application should be transferred tothe CGVS for examination on the merits.


3.3. Applications for medicalstay “9ter” in conjunctionwith the right to reception andthe Dublin Convention

FRA has detected two problems with regard toasylum applicants who have applied for a medi-cal stay as well, and whose asylum applicationhas become the responsibility of the Belgian au-thorities under the Dublin Convention after thedelay of six months.

• Asylum applicants who have received a deci-sion stating that Belgium is not responsible underthe Dublin regulation for the examination of theasylum application do not have the right to re-ception. The appeal against the decision doesnot have automatic suspensive effect and for thisreason the Dublin decision is considered to bethe end of the asylum procedure in Belgium. Theapplication for a medical stay does not give theright to prolong reception, except in very excep-tional circumstances.Thus, asylum applicants for whom Belgium hasdecided not to be responsible under the Dublinprocedure and who are awaiting the outcome ofan application for medical stay are usually withoutsupport until their application “9ter” is consideredadmissible. When their application is consideredadmissible they can apply for financial support.Considering that at this time they are no longerreceiving shelter, they do not receive proper fol-low up on their asylum procedure and most of theapplicants are not aware that they can re-presentthemselves to the Aliens Office once the sixmonths have passed (most lawyers are not evenaware of the six months period and the date theperiod expires). Due to the lack of informationabout the provisions in the Dublin regulation asy-lum applicants sometimes only find out abouttheir right to have their asylum application exa-mined in Belgium after a long time has passed.The fact that their application for asylum is onlyexamined after a while does have a great impacton their ability to tell their story or to have proofsent over.

In FRA’s project for individual housing a case likethis was encountered. A Chechen family wasconsidered to be a Dublin case under the res-ponsibility of Poland. They received an order toleave the territory for these reasons. Nonetheless,afterwards they had also applied for a medicalstay “9ter”. This application was however nottreated within the delay of six months for the Du-blin transfer, and as a consequence the transferwas not realized either. As a result of which theirasylum claim could in the end be transferred tothe CGVS to be examined on the merits. None-theless, the lawyer did not know this and failed toinform the family of their rights. FRA discoveredthis after one year; the family’s case was finallytransferred to the CGVS and they received refu-gee status only a few months later.

• Recently FRA experienced that when asylumapplicants under the Dublin procedure presentthemselves to the Aliens Office for the examina-tion of their asylum application by the Belgian au-thorities, the Aliens Office considers it to be a se-cond asylum application. Considering it to be asecond asylum application is not in line with theDublin regulation and is particularly important forthe right to reception keeping in mind that asylumapplicants who apply for asylum a third time donot have the right to reception anymore. TheAliens Office stated it was the responsibility of theapplicant to travel to the responsible MemberState and that they had not applied for an ex-tended stay in Belgium (to await the outcome ofthe application for a medical stay), since they fai-led to do this the application was considered tobe a second application. However, on anotheroccasion the Aliens Office stated it was conside-red a first application (in line with the Dublin re-gulation). FRA is in contact with the Aliens Officeto clear this up.


4.1. Conclusionsand recommendationson the implementationof the project;

I. The Dublin Project allowed FRA to take a clo-ser look at the application of the Dublin regulationin Belgium. Unfortunately, as said in the intro-duction, the Aliens Office is not very transparentwith regard to the application of the Dublin regu-lation. During the course of the project the Aliensoffice showed great reluctance towards coope-rating on the project. Toward the end the AliensOffice showed more interest. Although this inte-rest might be too late for the current Dublin pro-ject, FRA hopes to be able to keep close contactwith the Dublin Unit at the Aliens Office to get abetter picture on how the Dublin regulation isapplied in the future, especially with regard to mi-nors, family members, the sovereignty clauseand the Humanitarian clause.

II. The development of the brochures on the dif-ferent countries of the partners in the project wasregarded an asset and has been found usefuleven by the Dublin Unit of the Aliens Office itselfand the personnel of the closed reception cen-tres. Unfortunately, this has made clear that evenfor the Belgian authorities; there is a lack of in-formation about the asylum procedures and si-tuation of asylum seekers in other Europeancountries. Given that these brochures and this in-formation is very much needed, it is unfortunatethat it was not yet possible to spread the bro-chures in hardcopy and that there was not en-ough time in the project to promote the websitemore vigorously.


III. Due to the problems FRA experienced in fin-ding individual cases suitable for follow up, des-pite its efforts, it did not manage to complete thesecond phase of the project. FRA also did not re-ceive any individual cases from other partners inthe project. Maybe future projects should takeinto account the restrictions for organizationsthat are not sufficiently in direct contact with asy-lum applicants under the Dublin regulation, andprovide more means to compensate for the ex-tra work load it takes to search directly for theseindividual cases or to compensate partner orga-nizations or persons who can do this individualfollow-up.

4.2. Conclusionsand recommendationson the application of theDublin regulation;

I. FRA would recommend the asylum authori-ties, especially the Aliens Office, to provide moreinformation on the application of the Dublin re-gulation especially with regard to minors, familymembers, the sovereignty clause and the Hu-manitarian clause. FRA calls on the Aliens Officeto provide more annual statistics on the imple-mentation of the Dublin regulation.

II. From the decision by the ECtHR in the MSScase FRA knows that the Dublin regulation is ap-plied systematically and that the Aliens Officehardly ever considers making an exception. TheAliens Office should consider the situation of theindividual asylum applicant and should considerapplying the sovereignty clause more often. Ac-cording to statements made by the Dublin De-partment of the Aliens Office they do apply theclause, but in practice there is no clarity on thenumber of cases and the reasons for applicationof the clause.

III. It should be possible for the lawyer to be pre-sent at the interview with the Aliens Office concer-ning the application of the Dublin regulation or atleast to have a written report of this interview.

IV. The appeal against the Dublin procedureshould be considered to be part of the asylumprocedure and should have a suspensive effect,therefore giving asylum applicants the right toreception and protect them from being transfer-red before their claims are considered.



Organizations: Forum réfugiésand France terre d’asile

1. National context:asylum law and theDublin procedure.Field observations andrecent developments

1.1. The right to asylum in France

The asylum procedure in France is regulated bypart 7 of the CESEDA law governing the admis-sion and residence of foreign nationals and theright to asylum. Asylum law was codified as a re-sult of the December 10 2003 law, amendingthe July 25 1952 law. The clauses concerning thesocial welfare measures applicable to asylumseekers during their procedure were included inthe code of social action and families and in theemployment code.

In matters of immigration, France saw a period ofunprecedented legislative activity between 2003and 2007, with 4 laws on this theme being adop-ted within the five year period. In April 2011, anew immigration law was being debated by par-liament.

The OFPRA (French office for the protection of re-fugees and stateless persons), a public institutionreporting to the Home Ministry, is responsible forexamining asylum applications in the first ins-tance. The CNDA national court of asylum law,the administrative jurisdiction, examines appealslodged against OFPRA rejections. There are twoasylum procedures in France, whose applicationis determined by the temporary residence gran-ted by the Prefecture. The so-called normal pro-cedure is applied to asylum seekers admitted asresidents, while those not admitted as residentsare placed on the priory procedure. The priorityprocedure offers less protection in terms of ac-cess to social rights and fewer guarantees re-garding appeal examination by the CNDA. Refu-gee status and subsidiary protection are the twomain forms of international protection.

With 52,762 applications registered in 2010, asy-lum application increased for the third year run-ning and France remains the first country of re-ception of asylum seekers in Europe. However,with 10,340 people being granted a form of in-ternational protection (8,305 statutory refugees

and 2,035 subsidiary protections), France is lessgenerous that other Member States, such as Ger-many or the UK. As in 2009, 70% of applicationswere filed for the first time. 24% of all requestswere examined under the priority procedure.

1.2. Legal measures concerningthe Dublin Regulation

As community regulations, regulation 343/2003dated February 18, 2003, and its application re-gulation 1560/2003 dated September 2, 2003,are an integral part of the measures defining theconditions of residence admissions and asylumrights in France.

Furthermore, the CESEDA contains clauses rela-ted to application of the Dublin Regulation. Arti-cle L. 741-1 states that an asylum request fromanother Member State under the Dublin Regula-tion justifies non-admission for residence. ArticlesL. 531-2 and L. 531-3 state the terms of thePrefectoral order for readmission to the respon-sible State.

Part II-1 of the circular dated April 22, 2005, inapplication of the December 10 2003 law, des-cribes the terms of application of the Dublin Re-gulation: systematic Eurodac fingerprinting ofasylum seekers, issue of a “Dublin convocation”,request sent to the Member State, transfer or-ganisation.

There are no legal clauses concerning the takingcharge of asylum seekers under the Dublin pro-cedure. Since they are not admitted as residents,they are not eligible for the principle social welfaremeasures such as access to reception centresfor asylum seekers and the temporary support al-lowance of 10.67 euros per day. Furthermore,many of them are not eligible for universal healthcover and have to wait three months before ob-taining AME (state medical assistance). AME be-came payable in 2011, generating serious conse-quences in terms of healthcare access for asylumseekers under the Dublin procedure or in thepriority procedure, who have no other social as-sistance and are not allowed to work.

Their social situation is therefore extremely te-nuous although theoretically they may obtainemergency accommodation under common law.

1.3. Strong heterogeneityin practice

Regulations concerning application of the Dublinregulation remain limited and in practice leave alarge margin of interpretation for the Prefectoralservices who must apply it. There are therefore si-gnificant differences in application depending onthe Prefecture.

In a certain number of Prefectures, asylum see-kers under the Dublin procedure are issued witha “Dublin convocation”. This document, mentio-ned in the circular dated April 22 2005 indicatesthat the asylum seeker is under the Dublin pro-cedure. It shows his/her identity, photo and thedate on which he/she must present himself/her-self at the Prefecture. The asylum seeker is ge-nerally required to present himself/herself everyfortnight, sometimes once a month. There,he/she is informed of the progression of his/herprocedure: acceptance from the requested State,refusal of admission as a resident, notification ofa readmission order, arrest for readmission. Usingthe same convocation, some Prefectures informthe asylum seeker of acceptance from the re-quested country, serve the readmission orderand make the arrest with a view to placement inan administrative detention centre and execu-tion of the readmission order. Other Prefectureswork in stages, leaving the asylum seeker thepossibility of appealing against the readmissiondecision.

In Paris, asylum seekers are no longer issuedwith “Dublin convocations” and are no longer re-quired to present themselves every 15 days. Theyare informed by post of the response from the re-quested State, and if applicable, a readmissionorder and a one-month “laissez-passer” is en-closed to enable them to make their own way tothe responsible State. If they are still in the coun-try after this one-month period, they are sum-moned to the Prefecture once again and arrestedto enforce readmission. Recently, a similar pro-cedure was introduced in the Provence-Alpes-Côte-D’Azur region.

Major differences are also observed in matters ofenforcing readmission.

1.4. Recent changes in applicationof the Dublin Regulation

a) Social rights of asylum seekers underthe Dublin procedureIn 2009, the administrative judge recognised theright of asylum seekers, including those underthe Dublin procedure, to benefit from decent re-ception conditions on the basis of Directive2003/9/EC dated January 27, 2003, the “Recep-tion Directive”. Faced with a lack of accommoda-tion solutions, several hundred appeals have beenlodged with the administrative courts, which have

charged the Prefects to allocate accommodationto asylum seekers. In the light of this jurispru-dence, the Minister of Immigration reminded thePrefects of their obligation to provide accommo-dation for asylum seekers under the Dublin pro-cedure until notification of their readmission order(circular dated December 18 2009). Neverthe-less, respect of the Dublin asylum seekers’ rightto accommodation remains relative and it is oftennecessary to refer the matter to a judge to obtainaccommodation. Furthermore, in Paris, nume-rous decisions charging the Prefect to provideaccommodation are not implemented.

b) Consequences of the MSS/v. Belgiumruling dated January 21, 2011After the MSS/v. Belgium case, the EuropeanCourt of Human Rights wrote to the MemberStates on September 30 2010, inviting them tosuspend the enforcement of Dublin readmissionorders to Greece until a final decision had beenmade. It stated that it would apply Article 39 of itsregulation for any cases of readmission toGreece. In spite of the court’s request, the Frenchauthorities continued to arrest Dublin asylum see-kers to have then readmitted to Greece. In thelight of this situation, the European Court of Hu-man Rights has applied Article 39 every time acase has been referred concerning an arrest forenforcement of a Dublin readmission order toGreece.

Subsequently, in the light of the consequences ofthe European Court of Human Rights order datedJanuary 21, 2011, the Home Ministry informedthe associations in a letter dated February 282011, that France would be temporarily suspen-ding Dublin readmissions to Greece and that itwould be applying the sovereignty clause.

Although the suspension of readmissions toGreece was implemented rapidly, the asylum see-kers concerned, particularly in Paris, experienceddifficulties in accessing the asylum procedure.However, in April 2011, these difficulties seem tobe gradually being resolved.

1.5. Information on applicationof the Dublin Regulation in France29

Application of the Dublin Regulation in Franceconcerns an increasing proportion of asylumseekers. Indeed, the number of asylum seekersunder the Dublin procedure has increased by81.7% in two years, from 2,941 asylum seekersin 2007 to 4,026 in 2008 and 5,349 in 2009. Thenumber of asylum seekers under the Dublin pro-cedure has therefore increased more than twiceas fast as the number of asylum applications. In2009, 13.8% of asylum applicants were concer-ned by the Dublin regulation. In 2010, this figurewas stable: 5,396 asylum seekers under theDublin procedure, representing just 47 morethan in 2009.


29 - Source:Home Ministry.

In 2010, among the 5,396 requests to anotherState, 4,345 (81%) concerned a take back re-quest. Take charge requests are mainly due tothe person crossing the national border or havingbeen issued with a residence permit or visa.

The number of transfers increased by 35% bet-ween 2008 and 2009, from 789 to 1,010. This ishowever proportional to the increase in the num-ber of requests. Finally, the rate of transfers en-forced dropped from 44% in 2007 to 29% in 2008and 2009. In 2010, there were 883 transfers.

Poland is by far the Member State the most soli-cited by France for application of the Dublin Re-gulation, with 1,305 requests in 2010. Next isGreece (680), followed by Italy (661), Germany(402) and Austria (328). However, the highest num-ber of Dublin readmissions was actually made toGermany in 2010 (152), followed by Italy (123), Po-land (105) and Belgium (85). Poland is thereforeonly in the third position, with an actual transferrate of 9.9%.


Dublin II procedures - 2005/2010

YEAR

2005 2934 2083 617 234 2934 655

2006 2647 1754 776 117 2647 849

2007 2 943 1843 849 140 2832 826 280

2008 4026 2641 783 617 4041 789 383

2009 5349 3430 1006 220 4656 1010 462

2010 5 396 3340 1130 2753 7223 883 891

Source : Ministry of Home Affairs and Immigration

REQUESTS ACCEPTED REFUSED UNDERINSTRUCTION

TOTAL TRANSFERS EXTENDEDDEADLINE


Dublin II procedures by France 2010

REQUESTS EXPLICITACCEPTANCE

IMPLICITACCEPTANCE

TOTAL REJEC-TION

UNDER INS-TRUCTION

TRANS-FERS

EXTENDEDDEADLINE

TRANSFERS/AGREEMENTS

Germany 402 233 22 255 95 114 152 49 59.6%

Austria 328 109 8 117 174 143 41 17 35.0%

Belgium 264 102 23 125 94 105 85 12 68.0%

Bulgaria 10 8 4 12 2 7 4 0.0%

Cyprus 6 1 1 2 2 1 100.0%

Denmark 27 12 4 16 13 17 3 3 18.8%

Spain 217 139 12 151 35 138 39 64 25.8%

Estonia 2 2 2 1

Finland 32 9 3 12 18 8 1 1 8.3%

Great Britain 246 53 15 68 123 95 40 4 58.8%

Greece 680 2 449 451 16 757 47 140 10.4%

Hungary 268 145 26 171 82 92 53 61 31.0%

Ireland 20 6 6 9 6 5 1 83.3%

Iceland 2 1 1 1 0.0%

Italy 661 154 245 399 107 486 123 122 30.8%

Lettonia 1 1 1 1 1 0.0%

Lituania 36 18 9 27 28 4 5 14.8%

Luxembourg 20 1 1 11 15 2 1 200.0%

Malta 57 4 31 35 3 36 3 6 8.6%

Norway 124 46 14 60 42 33 29 24 48.3%

Holland 161 70 3 73 65 51 30 10 41.1%

Poland 1,302 1,021 44 1,065 44 380 105 302 9.9%

Portugal 15 24 24 2 4 1 4.2%

Czech Rep. 58 37 8 45 9 34 12 4 26.7%

Romania 25 15 1 16 4 9 4 1 25.0%

Slovakia 44 12 5 17 19 19 2 2 11.8%

Slovènia 29 10 4 14 20 19 2 2 14.3%

Sweden 142 68 8 76 53 60 30 36 39.5%

Switzerland 217 94 5 99 87 92 68 19 68.7%

Total 5,396 2,397 943 3,340 1,130 2,753 8,83 891 26.4%

2. Assessmentof the projectimplementation by thepartner organizations

2.1. Forum réfugiés

Forum réfugiés operates a reception platform forasylum seekers in Lyon “La Maison du réfugié” anda transit center. People under Dublin a procedurecan be assisted by these two structures. Theplatform is a reception place for asylum seekersnewly arrived, asylum seekers, refugees who arenot supported in the national reception systemand rejected asylum seekers. The transit centeraccomodates temporarily persons of any natio-nality, who express their intention to seek asylum,

regardless of the procedure, and pending theiradmission to one of the centers for asylum seekers(CADA) of France.

Forum réfugiés also advises people under a Dublinprocedure placed in detention centers in Lyon,Marseille and Nice. Since January 2010, teams ofForum réfugiés are permanently present in thesecenters to assist asylum seekers.

Currently, it is difficult to give statistics for the de-tention centers. There is no specific database onasylum seekers with a Dublin transfer’s decision.The activity in detention centers is too large andemergencies are too numerous to allow time forteams to set up a database that would providesufficient detail to extract accurate statistics onDublin cases.

The statistics below are for the Plaform home and the transit centerfrom December 2009 to May 2011 :


CATEGORY

asylum seekers under the Dublin procedure assis-ted by your organization

asylum seekers under the Dublin procedure whobenefited from an individual diagnosis

asylum seekers directed to a partner

number of asylum seekers who receivedan appropriate information on Asylumand the Dublin procedure and benefited froman orientation interview


NUMBER

200

200

0

200

1

NB: The staff of the reception platform and the transit center conduct interviews with each asylum see-ker under a Dublin procedure, during which they fulfill the individual file.

Forum réfugiés had set up an individual follow-up form for asylum seekers under the Dublin pro-cedure even before the beginning of the Transna-tional Dublin project. This form was systematicallycompleted by the Forum réfugiés person respon-sible for the follow-up of asylum seekers under theDublin procedure. The form continues to be filledin at the time of implementation of this project.

The individual follow-up form aims to collect themain information on the applicant’s family situation,his route within the EU, the stages of the Dublinprocedure, the formalities accomplished to re-quest asylum in France or in one of the transitcountries, his medical situation, his family ties inFrance and any other links to France.

Asylum seekers can obtain personalised adviceduring legal consultations proposed by the Maisondu Réfugié. 80 new Dublin files (i.e. the number ofadults) were opened in 2010. 303 adults under the

Dublin procedure had an advisory interview. Thisadvice service provides answers to questions onlegal, administrative and social topics in relation tothe various statuses of asylum seekers.

An information desk is devoted to the follow-up ofpeople under the Dublin procedure, offering fulldiagnosis of their legal situation and recommen-dation of a lawyer if necessary. Additional humanresources were granted to the Maison du Réfugié(internal back-up, temporary recruitment) to meetthese extra needs. A reference person was re-cruited specifically for this purpose on a part-timebasis for a fixed duration. This position contributedlargely to the overall implementation of the Trans-national Dublin Project within the Maison du Ré-fugié. Due to the lack of financial resources this po-sition was not maintained. Since January 2011,Dublin activities have been severely limited. Anemployee of the reception platform continues tomaintain the permanence, however, they are only

onsite half a day every two weeks. Within such ashort period of time it is difficult to conduct a tho-rough interview and even more difficult to fill in theindividual follow-up form or create effectivecontacts with network partners. The absense of aninterpreter during the interview renders the situa-tion even more complex.

The follow-up is more thorough for asylum seekersunder a Dublin procedure who are at the transitcenter. The staff have the opportunity to interviewasylum seekers housed at the center in length, inthe presence of an interpreter when necessaryand on a regular basis if necessary.Although the transit center did not house anyoneunder a Dublin convocation upon arrival in thecenter in 2006, 2007 or 2008, they later began ac-cepting people, taking in 33 people in 2009 and 30people in 2010. Concerning the administrative si-tuation of the applicants when they left the transit

center, the figures are as follows: there were 64 in2006, 82 in 2007, 99 in 2008, 24 in 2009 and 25in 2010.

The DNA (national reception system) in the Rhônearea being saturated, Forum réfugiés opened atemporary accommodation system, called “SASLamartine” in response to a request from the localauthorities. This structure, which opened in June2010, receives asylum seekers under the Dublinprocedure and on the priority procedure. In 2010,the SAS received 21 people under a Dublin convo-cation. Of a total of 30 departures in 2010, 17 wereDublin readmissions.

The transit centre saw a slight increase in 2010 inthe reception of people under the Dublin proce-dure compared with 2009. Reminder: these peo-ple remain ineligible for the national reception sys-tem.


Dublin procedures in 2006-2010

NUMBER OF PEOPLE

Present on 31/12 with no response*

Admitted as residents to request asylumin France

Notification of return to the Europeancountry responsible for the asylumrequest

Disappearance/failure

Admitted to request asylum in Franceon the priority procedure

TOTAL

* These are people who entered the transit centre under the Dublin procedure during the year and who were still waiting for a response on 31/12.

45

27

15

9

4

100

9

38

22

15

4

88

13

40

78 (inc.27 actual

departures)

28

0

159

9

18

15

13

0

55

9

39

16 ( inc.7 actual

departures)

9

0

73

20102009200820072006

2.2. France terre d’asile

a) Implementation conditions:

Within France terre d’asile, there are 4 structuresplaying a full role in the transnational Dublin pro-ject. They are the reception platforms for asylumseekers located in Créteil, Caen and Rouen, andthe “SASA-Kiosque”. SASA is the Paris receptionplatform for isolated asylum seekers. It is asso-ciated with the Kiosque which provides legal as-sistance for asylum seekers under the Dublinprocedure.

On average, in all of these structures, France terred’asile receives 25 new asylum seekers underthe Dublin procedure every month. In principle,they all have an individual interview during whichan agent explains the reasons for their placementunder the Dublin procedure and the conse-quences of this situation, particularly in terms ofaccess to the asylum procedure and social rights.Personal administrative follow-up is providedthroughout the stages of the Dublin procedure(placement under the Dublin procedure, determi-nation of the responsible State, readmission pro-cedure, extension of the transfer deadline or ac-cess to the asylum procedure in France). Theindividual follow-up form was definitively in-cluded in France terre d’asile’s internal pro-cedures on September 15, 2010. A meetingwas held on September 7 2010 with the de-partments concerned to present the form andthe European network partners that can becontacted in the event of readmission. The ins-tructions for using the tools developed bythe project were explained in an internal pro-

cedure memo which was distributed on thesame day. This memo also contained a summarytable showing the various actions to be underta-ken at each stage of the Dublin procedure.

The main purpose of the individual form is to en-sure the continuity of follow-up by a partner in theEuropean network in the event of readmission.Firstly, it enables easy transmission of informationto identify the asylum seeker, which helps thepartner to implement the best kind of follow-up asquickly as possible. Secondly, it materialises thiscontinuity, thereby reinforcing its efficiency.

If there is a risk of readmission (e.g.: acceptancefrom the requested country, readmission order,convocation with a risk of readmission) and thereis a network partner in the responsible State, theasylum seeker is informed of the possibility ofusing the European network and obtaining sup-port from a partner in the event of readmission.If he accepts, a follow-up sheet is filled in andemailed to the relevant partner.

This contact enables the practical details of theasylum seeker’s reception to be organised bythe network partner, within the limits of its capa-bilities. The Romanian partner has informed usthat it will be able to meet has any readmittedasylum seekers at the airport in the event of aproblem. In January 2011, after transmission ofa follow-up sheet, we agreed with the CIR thatthe Arciconfraternitat association, present at Fiu-micino airport in Rome, would be informed ofany readmissions. Arciconfraternitat can thusguide asylum seekers in the project from the air-port to the CIR office.


CATEGORY






NUMBER

170

170

5

110

3

b) Analysis of cases of asylum seekersassisted by France terre d’asile

Prior to January 2011, no sheets were transmit-ted to the project partners for a number of rea-sons. The first was the small number of read-missions concerning asylum seekers assisted by

the reception platforms of France terre d’asile:between September and the end of December2010, there were only 5 readmissions.

Secondly, feedback has revealed that some asy-lum seekers declined to join the project as theyrejected the very idea of readmission. Others

needed specific information on how readmissionactually worked, the asylum procedure andconditions of reception in the destination country.However, at this stage, the information brochuresproduced by the project had not yet been finali-sed and were not ready for distribution.

The distribution of information brochures beganin January 2011 and their availability on thewww.dublin-project.eu website seems to havehad a positive effect on how the project is per-ceived by asylum seekers. France terre d’asilehas observed a non-negligible link between priorinformation and acceptance of the proposed fol-low-up by asylum seekers.

Obviously, there will be a period of adaptation forthe social workers involved to adopt this tool. Re-gular support from the project coordinator for lo-cal teams has been necessary. The availability ofthe information brochures is also a positive ele-ment in this sense. Social workers see them asbeing tools that facilitate their task of informingasylum seekers, which also makes the proposalto join the project more automatic.

Since January 2011, several asylum seekershave been oriented to other partners.

• A first orientation via the follow-up sheet wassent to the CIR in Italy for a person who had re-ceived the information brochure in English andbeen placed in a detention centre prior to enfor-cing readmission to Italy. The practical condi-tions of his arrival were organised with the CIRbut in the end, the administrative judge cancelledthe readmission decision.

• A second orientation was sent to CEAR inSpain. It concerned an Ivorian who had a resi-dence permit in Spain but wanted to requestasylum in France. He had left Spain because ofthe extreme lack of stability of his situation, anda lack of housing in particular.

After making contact with CEAR, the applicantobtained the guarantee of an interview with asocial worker upon his return to Madrid. He ulti-mately refused to return to Spain, preferring tostart the asylum application procedure in France,in spite of the extreme likelihood of being placedunder the Dublin procedure and the risk of losinghis Spanish residence permit.

• In February 2011, an Afghan asylum seeker un-der a readmission order to Denmark accepted tojoin the project. The Danish Refugee Council is anon-funded partner of the project; it produced theinformation brochure but does not contribute tothe operational phase in the event of readmissionto Denmark. The information brochure was givento the applicant, along with the contact details ofvarious associations. The Danish Refugee Coun-cil was also informed of his arrival and confirmed

that the asylum seeker could contact its legalexperts if he had any problems at the airport.

• In April 2011, the individual follow-up sheet ofa Tunisian asylum seeker was sent to CIR inItaly. This case reveals the importance of the in-formation brochures. This person had receivedassistance from France terre d’asile in a deten-tion centre. In general, detained asylum seekers,in view of the urgency of their situation, refuse tojoin the project and just want help to appealagainst the readmission decision. However, inthis case, the information brochure about Italyreassured the asylum seeker of the possibilitiesof being able to continue his asylum applicationin Italy.

c) Analysis of the cases of asylumseekers readmitted to France and orientedtowards France terre d’asile

France terre d’asile has received 3 orientationsfrom the project’s partners: 2 from the AustrianNGO, Asyl In Not, and 1 from a partner associa-tion of the Dutch Refugee Council in the Nether-lands.

• The first orientation came in May 2010 fromAsyl In Not in Austria. The individual follow-upsheet was sent, but the asylum seeker, who wascoming to France by himself, did not come to theFrance terre d’asile office. As far as we are aware,he has not made further contact with Asyl In Not.

• In June 2010, a second orientation was recei-ved: an Ivorian asylum seeker. She was orientedby an association with no direct link to the pro-ject, so there was no individual follow-up sheet.The relevant information concerning the state ofhealth of the person was passed on by tele-phone. France terre d’asile has no offices in thedepartment where the person lodged her appli-cation, so we contacted the director of the localasylum seeker reception platform to inform him ofthe arriving applicant’s state of health and needfor accommodation. We also had direct contactwith the applicant and sent her to the emergencyaccommodation centre, which was the only so-lution available.

• A third orientation was sent in August 2010 byAsyl In Not concerning a Russian asylum seekerplaced under the Dublin procedure in Austria andfor whom France had been designated as theresponsible State. This person required assis-tance for readmission to Austria since part of hisfamily were refugees in Austria. Being in Stras-bourg, France terre d’asile contacted the Stras-bourg reception platform which found his file.They made an appointment with the applicant toexamine the possibilities of his readmission toAustria together.


� The number of orientations received by France terre d’asile from partners and the number of orien-tations made by France terre d’asile towards other partners does not enable any real conclusionsto be made. This phase of the project, which fulfils a real need, deserves observation over a lon-ger period of time to enable all its effects to be measured.

3. Analysisof the applicationof the Dublin procedureat national level(Case studies)

Observations made during implementation of thetransnational Dublin project enabled the identifi-cation of a certain number of problems posed bythe implementation of the Dublin Regulation inFrance.

� Access to the asylum procedureby asylum seekers not readmittedwithin the legal deadlines

The number of readmissions actually taking placeover the period compared with the number ofasylum seekers placed under the Dublin proce-dure is low. We do not yet have the national fi-gures for 2010, but the trend observed seems si-milar to that of 2009, when only 20% of asylumseekers under the Dublin procedure were ac-tually readmitted. While some of these non-read-missions are due to abscondment, this is nottrue for many asylum seekers, and under the Du-blin Regulation, they should then be able to havetheir asylum application examined in France.

However, these people are faced with major dif-ficulties in terms of access to the asylum proce-dure in France. Access to the asylum procedureis often refused when they go to the Prefectureand their transfer deadlines is therefore extendedde facto. In general, no written decision concer-ning this deadline transfer is provided; at best,they are informed orally. It is therefore difficult tocontest the situation before an administrativejudge. Consequently, some families in Créteilhave been waiting for temporary admission forasylum for more than a year.

One of the objectives of the Dublin regulationwas to ensure the examination of each asylumseeker’s application by a Member State. The re-current difficulties observed by France terred’asile concerning access to the asylum proce-dure in France in cases of non-readmission withinthe deadlines are contrary to this objective anddeprive certain applicants of the asylum proce-dure for abnormally long periods of time.

� Absence of effectiveremedy against readmission measures

With the MSS/ v. Belgium ruling, the EuropeanCourt of Human Rights recognised that enforcinga readmission measure in application of the Du-blin Regulation could represent violation of theEuropean Convention on Human Rights (ECHR).Thus, and in compliance with Article 13 of theECHR, Dublin readmission measures must beassociated with access to effective remedy. Inparticular, the right to effective remedy includesthe right to an automatically suspensive appeal.However, in France, there is no suspensive ap-peal against Dublin readmission orders. This le-gal gap has serious consequences in terms of ju-risdictional guarantees. Asylum seekers areunfairly readmitted before a judge can make de-cision on their appeal. This was the case of Mr.MJ, who was notified of his readmission order onJune 2, 2010, even though France should havebeen designated as the responsible State afterexpiry of his transfer deadline. An appeal was lod-ged on June 4, 2010. On the following day, theadministrative judge ruled in favour of the asylumseeker, cancelling the readmission decision andcharging the Prefect to admit him as a resident,but it was too late because the applicant had al-ready been returned to Greece. This risk increaseswith the practices in certain Prefectureswhich seriously hinder, and even prevent,the lodging of an appeal against a readmissiondecision. In several Prefectures, the person is ar-rested and placed in a CRA at the same time ashe is notified of the readmission order. In theseconditions, it is extremely complicated for theasylum seeker to lodge an appeal.

On the strength of the consequences of theMSS/ v. Belgium ruling, the Senate introduced asuspensive appeal against Dublin readmissionmeasures in the new draft immigration law, butunfortunately, this amendment was withdrawnby the members of parliament.

� Absence of a referral deadlinefor take back situations

The absence of a referral deadline for requestingthe responsibility of the State assumed to be res-ponsible for examining an asylum application intake back situations can have serious conse-quences on the duration of the procedure. Thislegal loophole can extend the procedure of de-termining the responsible State and delay ac-cess to the asylum procedure unnecessarily.


Since there is no legal deadline, referral to the res-ponsible State can take several months. Althoughthere is no real recurrent abuse, certain situationsreveal the problems related to this legal void. Mr.A lodged an asylum application on March 17,2009. He was placed under a Dublin convocationon July 1st 2009, but France only referred thecase to the Italian authorities on December 18,2009, i.e. 9 months after his application was firstregistered.

� Unaccompanied foreign minors

In application of the Dublin regulation, Francedoes not deport unaccompanied underage asy-lum seekers who have registered an applicationin another Member State before arriving inFrance. This is an informal practice but one thatwas recognised by the Ministry of Immigration inan official statement in 2010. This practice is stillapplied today. Taking into account the inherentvulnerability of unaccompanied foreign minors toavoid their transfer to another Member State,this is a good practice liable to inspire the reviewof the Dublin Regulation and other MemberStates.

4. 4. Recommendationsat national level

� Recommendations on applicationof the Dublin regulation:

Right to a suspensive appeal: to complywith the obligations resulting from the EuropeanConvention on Human Rights, it is urgent thatFrance introduces a suspensive appeal againDublin readmission measures into its national le-gislation. France terre d’asile deplores the with-drawal of an amendment that would do just thisfrom the draft law on immigration integration andasylum. This essential jurisdictional guaranteewould benefit both asylum seekers and imple-mentation of the Dublin Regulation, which wouldbe less often perceived as an “unfair” regulation.

Social rights of asylum seekers and ac-cess to healthcare: the circular dated De-cember 18 2009 represents a first step towardsthe provision of decent reception conditions forasylum seekers under the Dublin procedure. Ho-wever, many such people remain without ac-commodation in practice. To resolve this situationand ensure compliance with the “Reception” di-rective of January 27, 2003, France terre d’asileproposes to create reception systems for asylumseekers under the Dublin procedure. These sys-tems would include accommodation and admi-nistrative, legal and social assistance suited to theneeds of this population, particularly in terms oftheir administrative situation. Furthermore, andagain with regard to the “Reception” directive,asylum seekers under the Dublin procedure, likeother asylum seekers, should be eligible for thetemporary support allowance.

The access of asylum seekers under the Dublinprocedure to healthcare was already difficult andhas become critical since the recent reform ofthe AME state medical assistance scheme. Bysetting a payable subscription for people with noincome, no allowance and who are not allowedto work, the French authorities have effectivelyeradicated healthcare for a segment of the po-pulation, generating fears of dramatic conse-quences in matters of health. It is urgent that theFrench authorities rectify this situation and offerasylum seekers under the Dublin procedure freeand effective access to healthcare. Allowing allDublin asylum seekers, like other asylum see-kers, access to the CMU universal health cover,appears to be the most appropriate solution tothis problem.



Organization: Hungarian HelsinkiCommittee

1. National context:legislation on asylumand Dublin. Fieldobservations and recentdevelopments

The authority in charge of asylum is the Office forImmigration and Nationality, OIN (Bevándorlási ésÁllampolgársági Hivatal, BÁH), which falls underthe Ministry of Interior. Asylum procedure is regu-lated in the Act LXXX of 2007 on Asylum (herei-nafter referred to as the Asylum Act). The DublinRegulation is also implemented in this Act. In Hun-gary, there are no formal requirements to seekasylum. An asylum application is valid both in writ-ten and oral form and in any language at any pu-blic administration body. If the asylum seeker sub-mits the application at another authority it isobliged to register the fact of the submission in itsminutes and forward it without delay to the Officeof Immigration and Nationality. The OIN is thenobliged to start the procedure and duly inform theasylum seekers on his/her rights and obligationduring the procedure in the applicant’s mothertongue or in another language which the personunderstands.

The Hungarian asylum procedure has two parts:admissibility procedure and in-merit procedure. Inadmissibility procedures the OIN examines whe-ther:- the Dublin procedure is applicable,- the asylum seeker is a citizen of an EU MemberState,

- the asylum seeker has already been recognizedas a refugee by another country

- a safe third country procedure applies- the application is manifestly ill-founded- the applicant’s country of origin cannot be es-tablished because of he/she is acting in bad faith

- the applicant did not ask for protection within areasonable time, even though he/she had theopportunity to do so.

If the OIN decides that asylum application is “inad-missible”, the asylum seeker has a right to appealto the relevant regional court within three days. Ifthe application is admitted to the in-merit proce-dure, the OIN decides on the merits of the caseand can either reject the application or grant oneof the following protection statuses: refugee status,

subsidiary protection or tolerated status (a pro-tection status based on a general but not indivi-dualized risk of harm in the country of origin).

The applicant has a right to request the judicial re-view of the decision within 15 days. The court willconduct the hearing and decide either to reject theappeal, to annul the OIN’s decision and order thenew procedure or to grant one of the protectionstatuses.

1.1. Recent changesin legislation

The government amended several aspects of theasylum and immigration legislation and the new re-gulatory framework entered into force on 24 De-cember 2010. These amendments in many wayslower key standards regarding the right to asylumand alien policing detention:• manifestly unfounded asylum claims can now berejected at the preliminary assessment phase ofthe asylum procedure (resulting in a significantlylarger discretion for authorities to reject asylumclaims without any in-merit assessment andwith limited possibilities of seeking legal remedyagainst such decisions);

• the maximum period of alien policing detentionincreased from 6 months to 12 months;

• the so far exclusive competence of the Metro-politan Court (a centralised judicial body in Bu-dapest) in dealing with asylum appeal casesceased and this task has been delegated to anumber of county courts without any experienceand professional capacities in this field;

• the basis for detention of asylum seekers undera “Dublin procedure”, in order to secure their de-portation, is now included in the law;

• asylum-seekers may be lawfully detained forthe entire asylum procedure (both administrativeand judicial review), resulting in routine-like de-tention for the majority of those seeking inter-national protection;

• families with children can now be held in immi-gration detention for a maximum period of 30days (a time period usually insufficient to carryout deportation measures and therefore resul-ting in unfounded and unreasonable detention);

• subsequent asylum applications lost the sus-pensive effect and are no longer free of charge,the right to accommodation during the subse-quent asylum procedure is also limited.

Even before the changes in legislation occurred,the Hungarian Helsinki Committee noticed a ma-jor shift in the practice from a moderate detentionpolicy, where the vast majority of asylum seekerswere accommodated in open reception centres, toa very restrictive one, where almost everyone ap-prehended while illegally in Hungary is detained, in-cluding many asylum seekers. According to theHHC’s knowledge, the Office of Immigration andNationality and the National Police Headquartersissued a joint instruction in March 2010 orderingthat all irregular migrants should be detained re-gardless of their wish to seek asylum in Hungary.

1.2. Dublin procedure

The examination of whether a Dublin procedureshould start is part of the admissibility procedure.If a Dublin procedure is initiated, the admissibilityprocedure is suspended until a Dublin decision de-termining the responsible country for examiningthe asylum claim is issued. Once the ImmigrationOffice issues a Dublin decision, an asylum seekercan no longer withdraw his asylum application.

An asylum seeker has the right to start a judicial re-view of a Dublin decision within 3 days, before aregional court, depending on the place of his/heraccommodation. There is no oral hearing and theappeal has no suspensive effect. An asylum see-ker has the right to ask the court to suspendhis/her transfer, however this request also does nothave a suspensive effect. In its decision, the Courtis entitled to change the decision of the OIN or toorder the OIN to conduct a new procedure if theoriginal decision or procedure was not in line withthe Dublin Regulation.

The OIN rarely applies the humanitarian clauseand cases of especially vulnerable asylum-see-king separated children led to the application ofthe sovereignty clause on very few occasions. In2010, Hungary was one of the five EU MemberStates sending the most asylum seekers toGreece, despite some national court decisionsthat held that a transfer to Greece would violate Ar-ticle 3 of the European Convention on HumanRights. Finally, after the ECtHR judgment M.S.S. v.Belgium and Greece, the Hungarian Minister of theInterior announced that Hungary would no longersend asylum seekers to Greece.

1.3. Detention

What the law does not spell out specifically, buthappens in practice is that every illegal foreignerapprehended (or even those that report them-selves to the police after entering Hungary ille-gally) is primarily treated as an illegal migrant in analien policing procedure. Before registering asylumapplications the Police issue an expulsion orderand a re-entry ban against the foreigner (for a du-

ration of between one and ten years) based on ashort interview only focusing on immigration andhuman trafficking questions but without any focuson asylum and a need for international protection.

Under Hungarian law, an expulsion order cannotbe issued without examination of the principle ofnon-refoulement, however, this examination is inpractice only a formality and is clearly inefficient.The Police, in compliance with their legal obliga-tions, usually ask the Office of Immigration andNationality (OIN) for their country of origin infor-mation assessment. The OIN officer on duty giveshis opinion on the non-refoulement principle ba-sed on the minutes of the preliminary interviewwith the foreigner, which is conducted by a policeofficer. The HHC’s experience shows that thecountry information assessment carried out bythe OIN and its conclusions are often too short,and fail to provide sufficient time and space for anexhaustive assessment of the specific circums-tances of the case. Therefore expulsion ordersand the deprivation of liberty are based on insuf-ficient information which fails to duly considereventual protection needs.

Although there is no written policy on whom to de-tain and whom not, the HHC’s observations showthat a significant proportion of asylum-seekersand most irregular migrants are routinely detained,with the exception of unaccompanied minors andthose coming from the country which OIN deemsprima facie inadequate for return (regardless of in-dividual circumstances of the case) based on non-refoulement grounds and therefore refrains from is-suing an expulsion order (e.g. Somalia).

The law states that detention should cease im-mediately if it becomes evident that an expulsionorder cannot be carried out. Unfortunately, in prac-tice this rarely happens. Irregular migrants (inclu-ding asylum seekers) are usually detained for themaximum period of time. Alien policing detentionis to be reviewed and can only be prolonged by alocal court (every 30 days). However, this remainsa mere formality. Local courts issue basically iden-tical decisions in all cases, the reasoning of whichis short and laconic, lacking proper fact assess-ment and individualisation. The HHC’s long-stan-ding experience shows that – unlike in most Eu-ropean states – the extension of alien policingdetention is automatic in Hungary. Not a singlecase has occurred in the last several years wherea court has terminated the detention with refe-rence to, for example, the impossibility of carryingout an expulsion measure, even if the person waslater granted asylum by the OIN.

Before the new legislation entered into force, therewas no legal basis for detention of asylum seekersfor the entirety of the Dublin procedure, which canlast for several months. However, they were defacto detained in Békéscsaba in a closed recep-tion centre, protected by guards and barbed wire.According to the new legislation, asylum seekers


under a Dublin procedure will remain detained ifthey were first subjected to the alien policy proce-dure, during which detention was ordered. If theywere not detained at the beginning, the AsylumAct allows detention of asylum seekers for 72hours prior to being transferred to another coun-try on Dublin grounds.

According to Hungarian legislation unaccompa-nied minors should not be detained, but insteadshould be accommodated in an open shelter. Ho-wever, on several occasions during its detentionmonitoring visits the HHC has witnessed unac-companied minors detained in the immigrationjails. After checking their files, it was noted that adoctor had assessed their age. The HHC wastold by several asylum seekers that the doctordetermined their age only by looking at their tor-sos. The way age assessment is carried out inHungary is highly problematic.

Other vulnerable groups are in general not exclu-ded from detention. Pregnant, elderly, physically ormentally disabled asylum seekers may be detainedalong with everyone else. While in detention, theseindividuals’ special needs will not be sufficiently ad-dressed. Psycho-social care is not yet available inimmigration jails in Hungary.

1.4. Asylum seekersreturned under Dublinprocedure to Hungary

The authority who takes care of Dublin returneesupon arrival is the alien policing department of theOffice of Immigration and Nationality. The OINdoes not consider persons returned under Dublinas being asylum seekers automatically. In practicethe alien police first start with an alien policingprocedure (and issue an expulsion order) and onlyafter this, the OIN registers asylum application.As a result, a person may be detained for the pur-pose of expulsion which can last for the entireduration of the asylum procedure, but for a maxi-mum of 12 months.

According to the amended Asylum Act, the sub-sequent asylum applications have no suspensiveeffect on the execution of the expulsion, if theHungarian authority or court in its latest decisiondecided that the prohibition of refoulement was notapplicable. This is particularly relevant for personsreturned under Dublin whose asylum procedurewas closed or discontinued once they left Hungary(closed without a decision on the merit of theclaim). If they are issued an expulsion order whenthey are returned to Hungary, this means that theirsubsequent asylum procedure will not prevent theauthorities from deporting the person. Taking intoconsideration the above described practice of im-mediate issuance of an expulsion order, it is highlylikely that an asylum seeker returned under a Du-blin procedure, coming from the country which is

not considered as prima facie inadequate for re-turn, will be first issued an expulsion order. A sub-sequent asylum procedure is also no longer free ofcharge and asylum seekers might no longer havecertain rights regarding accommodation and sup-port. This practice is of serious concern, becauseit might result in the deportation of asylum seekerswho have never had their asylum application exa-mined on the merit.

1.5. Statistics for 2009and 2010

It can be deducted from the statistics above thatthere was a significant decrease of asylum appli-cations in 2010. The decrease might be explainedby the change of immigration policies: namely theincreased use of immigration detention.

In 2009, the OIN recognized 172 applicants as re-fugees, 62 as beneficiaries of subsidiary protectionand 155 were given tolerated status. In 2010, 74persons were granted refugee status, the OINgranted subsidiary protection to 115 persons,while 58 persons were given tolerated status onthe basis of the risk of refoulement. With regard tothe nationality of persons granted internationalprotection of the three categories above, most ofthem were Somalis, Iraqis, Afghans, Palestiniansand Iranians.


2009 4 672

2010 2 104

Number of asylum applications submitted

2009 2010

Kosovo 1786 Afghanistan 702

Afghanistan 1194 Kosovo 379

Serbia 536 Gaza, West Bank(Palestinians) 225

Georgia 116 Georgia 68

Turkey 114 Serbia 67

Somalia 75 Iran 62

Breakdown of the countries of originof asylum seekers (top 6)


2009 2010

Number of request to take charge or take back asylum applicantsreceived by Hungary 2 481 1 972

Positive answers from Hungarian authorities 1 561 1 480

Negative answers from Hungarian authorities 556 445

Dublin transfers to Hungary 934 742

Request to take charge or take back asylum applicants received by Hungary

2009 2010

Positive answers 512 391

Negative answers 53 45

Dublin transfers from Hungary to the responsible country 84 117

Request to take charge or take back asylum applicants sent by Hungary

Country of nationality of the asylum seeker Successful transfers Successful transfersen 2009 en 2010

Kosovo 409 43,79% 218 29,38%

Serbia 182 19,49% 79 10,65%

Afghanistan 110 11,78% 217 29,25%

Georgia 40 4,28% 52 7,01%

Most frequent countries of origin of the asylum seekers successfully transferred to Hungary:

Requesting country Successful transfers Successful transfersen 2009 en 2010

Germany 261 198

France 229 100

Austria 159 194

The most frequent transferring countries:

Requested country Successful transfers Successful transfersen 2009 en 2010

Greece 16 19,5% 120 67,80%

Romania 15 17,86% 20 11,30%

Austria 13 15,48% 2 1,13%

Poland 8 9,52% 3 1,69%

Italy 8 9,52% 4 2,26%

The most frequent responsible countries:


2. Assessment of the project implementationby the partner organization

CATEGORY






2009 2010

Incoming requests 37,65% 37,63%

Outgoing requests 13,61% 26,23%

Percentage of transfers effectively made compared to the number of requested transfers:

NUMBER

around 150, amongst which therewere around 50 cases represented beforethe OIN or courts

6

5

around 144

4

The reason for such a low number of follow upcases is that almost all asylum seekers under Du-blin procedure are detained and therefore theycannot come to our office for help. Even thoughHHC’s attorneys visit immigration jails once aweek, their main activity is legal counseling. Un-fortunately they do not have capacity to performdetailed interviews with asylum seekers in orderto fill in the follow up sheets designed in this pro-

ject, because there are many asylum seekersthat request their legal assistance. AnytimeHHC’s focal point in this project visited a deten-tion facility, she did not meet many asylum see-kers who would be in a Dublin procedure, waitingto be transferred to another EU country, but onlythose who were transferred back to Hungary;therefore she could not fill in many follow upsheets.

3. Analysis of theapplication of Dublinat the national level(Case studies)

Through legal counseling provided to asylum see-kers during this project, the HHC identified thefollowing main issues related to the application ofthe Dublin Regulation:

3.1. Return to Greeceunder Dublin procedure:

Before the ECtHR issued a decision in the M.S.S.case, Hungarian authorities continued returningasylum seekers to Greece (120 returns in 2010).Only minors were exempted from return sinceApril 2009.

- An Afghan family with three children and a mi-nor brother of the husband was apprehended atthe airport, possessing false passports. One ofthe children was seriously ill. The parents and theminor brother were put in pre-trial detention andthe three children sent to foster care. Once itwas established that the minor brother actually isa minor he was released, but the parents remai-ned in custody.

The UNHCR and the HHC intervened and finallythey were released. The family had Dublin hitsfrom Greece, but not the minor brother. TheHHC lawyer appealed against their return toGreece, arguing among other things that by sen-ding a family to Greece, the minor brother wouldbecome an unaccompanied minor. The Courtunfortunately dismissed the appeal and the fa-mily would have been transferred to Greece, ifthey had not escaped.

- An Afghan minor arrived in Greece in 2007. Al-though he asked for asylum, he did not receiveany social or legal assistance and he was forcedto live on the street in inhumane conditions. Hewas arrested and detained in Athens and elsew-here in overcrowded and dirty jails on severaloccasions. The police harassed him and beathim several times. He became infected with He-patitis-B because of the lack of proper accom-modation, adequate hygienic conditions and me-dical assistance, but was not given any medicaltreatment in Greece. In late 2009, the Afghanboy arrived in Hungary and applied for asylum.The Hungarian Immigration authority decided toapply the Dublin Regulation and ordered his re-turn to Greece. The Hungarian Helsinki Commit-tee, representing the Afghan minor, requestedan urgent interim measure from the EuropeanCourt of Human Rights to suspend the transfer toGreece. The ECtHR granted the interim measureand the OIN decided not to enforce the transferto Greece and to examine his asylum applicationon the merits.

- There were several positive judicial reviewcases, where the court ordered the asylum ap-plications to be examined in Hungary instead ofGreece, basing its reasoning on the risk of viola-tion of Article 3 of ECHR should asylum seekerswould be returned to Greece. Despite those po-sitive cases, the OIN continued to send asylumseekers back to Greece, until the M.S.S. judg-ment.

3.2. Shortcomingsin the application of the Dublinregulation:

- An Afghan asylum seeker was transferred underthe Dublin procedure from Austria to Hungary.Even though Hungary accepted responsibility forthis asylum seeker, the authorities started a newDublin procedure, because he had fingerprintsfrom Greece. He escaped back to Austria, butunfortunately the appeal against his transfer toHungary was rejected. The Austrian NGO askedthe UNHCR for help, which asked the Hungarianauthorities for explanation. The authorities repliedthat the Dublin Unit made a mistake by startinganother Dublin procedure, so the asylum seeker’scase was now referred to the in-merit procedure.But since he escaped back to Austria his casewas closed. The asylum seeker decided to leavethe EU for 6 months and then he returned backto Austria, where he was finally admitted to the in-merit procedure. This case is a good example ofjoint collaboration between the HHC and Asyl innot, which was made possible with this project.

- An Ethiopian man arrived in Hungary, but didnot ask for asylum. The police granted him tole-rated status, because his return to Ethiopia wouldbe in breach of the non-refoulement principle.

The men then asked for asylum, but since he hadfingerprints from Greece, the authorities startedthe Dublin procedure. HHC lawyer asked for ju-dicial review, claiming that the Article 9 (1) of theDublin Regulation which states that "where theasylum seeker is in possession of a valid resi-dence document, the Member State which is-sued the document shall be responsible for exa-mining the application for asylum" should applyand that this criteria applies before the criteria offingerprints in the first EU country. The Békés-csaba reception centre (where he was accom-modated) was closed for renovation and eve-ryone placed there received a humanitarianresidence permit and a train ticket to the open re-fugee camp in Debrecen. However, this personnever arrived in Debrecen.

3.3. No suspensiveeffect of appeal againsta Dublin decision:

- One minor Afghan had a Dublin hit in the UK. Heappealed against the Dublin decision, stating thatthe UK would send him back to Afghanistan andthat he could not attend school there. The OIN inits response to the appeal said that education is-sues are not relevant, but they did not mentionthat a minor does not want to return because heis afraid to be sent back to Afghanistan. Sincethere in no suspensive effect the minor was sentback to the UK before the Court decided abouthis case. The HHC later received information thatthe UK deported him back to Afghanistan.

- An Afghan family received a Dublin decision tobe transferred to Greece within 4 days. In such ashort period is impossible to expect that theCourt would decide on suspensive effect of thetransfer, besides the HHC lawyer could not evenstart the proceedings before the Court, since theOIN did not yet send all the necessary docu-ments. When the HHC lawyer asked the OIN towait with the transfer until the Court decides onsuspensive effect, OIN replied that the request forsuspensive effect does not have a suspensive ef-fect. The HHC lawyer tried to intervene at theCourt to ask whether they can adopt the decisionquickly, but since the responsible judge was onleave they could not hasten the procedure. In theend the UNHCR intervened, request the OIN towait with the transfer, invoking the argumentsconcerning the situation in Greece. The HHC la-wyer was unofficially informed that the OIN willwait with the transfer until the Court decides.


3.4. Unaccompaniedasylum seekers

- The HHC was contacted by several NGOs fromother EU Member States inquiring about the si-tuation of unaccompanied asylum seekers inHungary. Apparently most of the minors claimedthat they have been detained and ill treated. Thisis very controversial because, according to theHungarian legislation, minors cannot be detained.However, in practice they can be detained incase their actual age has been disputed by theauthorities. Unfortunately, until the medical exa-mination takes place, the Hungarian authoritiesdo not apply the benefit of the doubt, but detainthe alleged minor. The age assessment proce-dure conducted in Hungary is also highly proble-matic. It lacks transparency and proper profes-sional methods of age assessment.

- The HHC met a minor asylum seeker in an im-migration jail, returned under a Dublin procedurefrom Finland. He had his age assessment filesfrom Finland, where it was confirmed that he wasindeed a minor, but these files were not taken intoconsideration. He remained in detention for se-veral months.

3.5. Somali asylumseekers

The HHC noticed an interesting development re-garding Somali asylum seekers under Dublin pro-cedure with Dublin hits from Greece. Since Hun-gary at that time still performed transfers ofSomalis to Greece, Somali asylum seekers star-ted to withdraw their asylum applications to pre-vent their transfer to Greece. Even though theywere no longer asylum seekers, Hungary couldnot return them to Somalia, because this wouldbe the breach of non-refoulement and they all re-ceived tolerated status, valid for one year. Ho-wever, this is not a durable solution and fewerrights are granted than with refugee status orsubsidiary protection.

3.6. Long deadlinesunder Dublin procedure

On average, an asylum seeker who challengeshis Dublin decision stays under Dublin proce-dure for almost 6 months. According to the law,the judicial review of a Dublin decision should last8 days, but the HHC knows of cases where thejudicial review was pending for 5 to 6 months.

3.7. Expulsionand detention of Dublinreturnees

Almost all asylum seekers who are returned toHungary under Dublin procedure are detained.The HHC questions the lawfulness of this deten-tion. Usually the ground for detention, accordingto the Hungarian law, is the preparation of the de-portation (prior to detention an expulsion orderneeds to be issued). It is very problematic that aperson who is returned under Dublin (and is the-refore clearly an asylum seeker) and wants tomaintain his asylum claim, is first issued an ex-pulsion order and only then the OIN registers hisasylum claim.

A HHC lawyer challenged two expulsion orders ofthis kind. Both judgments were positive and theexpulsion orders were annulled. It is important tonote that one client was granted subsidiary pro-tection in the meantime. The judge ruled that theexpulsion order was unlawful, because it shouldnot be issued before the termination of the asy-lum procedure. The expulsion procedure shouldnot have even started, since the client was in-deed entitled to legal stay in Hungary.

The court also criticizes the OIN’s assessment ofthe principle of non-refoulement, doubting itsquality, as two months after the expulsion order(in which the OIN opinion on non-applicability ofthe principle of non-refoulement is included) theOIN granted subsidiary protection to the appli-cant, which is even higher form of protectionthan non-refoulement. In the second case, theapplicant filed his third application for asylum, sohe was not entitled to stay in the country (no sus-pensive effect).

This is why the judge ruled that even though theclient entered the country legally (with a Dublinlaissez-passer), he did not stay legally in thecountry, so the OIN had the right to launch theexpulsion procedure. However, due to the factthat the asylum procedure was already ongoingat the time of the expulsion decision, the OINshould have suspended the expulsion procedurebefore issuing an expulsion order and wait for theoutcome of the asylum procedure, and couldhave brought an expulsion decision only in casethe client had been rejected on a final basis.

It is clear now that regardless of how many timesthe client applied for asylum before, there is noground for expulsion after a Dublin transfer incases where the client requests the procedure tobe continued. Unfortunately, the OIN still conti-nues with this controversial practice.


3.8. Family unity

- A father with two minor children from Afghanis-tan was under a Dublin procedure with Greece.An HHC lawyer asked for judicial review of theDublin decision, but only after this was it disco-vered that the mother was in Norway. Unfortu-nately this fact came to light too late, because thedecision was already issued and the court canonly examine the legality of the decision at thetime the decision was issued. The court decisionwas negative and the HHC asked the UNHCR tointervene in the case. After their intervention, theHungarian authorities decided to examine thecase in merits and the family will not be transfer-red to Greece. However, reunification with theirmother is at present not possible.

3.9. Risk ofnon-suspensive effectof subsequent asylumapplications of Dublinreturnees

- The HHC assisted an Iranian woman with twochildren who is currently under Dublin procedurein the UK and does not want to be returned toHungary. We provided an expert opinion on thesituation in Hungary that might help her to pre-vent the transfer to Hungary. The new law remo-ved the suspensive effect on the execution of ex-pulsion of subsequent asylum applications.

She already applied for asylum in Hungary beforeand her case was discontinued when she left,therefore, if returned her application would beconsidered as a subsequent one. The law doesprovide a safeguard: if authorities in their last de-cision decided that the principle of non-refoule-ment should apply, the suspensive effect is notremoved. However, taking into consideration thepractice that almost every asylum seeker whocomes to Hungary is firstly issued an expulsionorder, it is highly likely that an asylum seeker re-turned under Dublin, coming from the countrywhich is not considered as prima facie inade-quate for return, will be firstly issued an expulsionorder.

This practice is of serious concern, because itmight result in the deportation of asylum seekerswho have never had their asylum application exa-mined on the merits.

4.Recommendationsat national level

Recommendations on the application of theDublin Regulation in Hungary:

• Respect for family unity should be a primaryconsideration of asylum authorities when ap-plying the Dublin Regulation. Family members asa principle should not be separated.

• Dublin procedures should be conducted faster.

• Appeals in Dublin cases should have suspen-sive effect or at least the request to suspend thetransfer should have a suspensive effect until thein-merit assessment of this request.

• Applicants should have more time to lodgetheir appeal against a Dublin procedure.

• An oral hearingshould be ensured during theappeal procedure.

• The OIN should follow the recent court deci-sions and stop issuing expulsion orders to asylumseekers returned under a Dublin procedure whowish to continue their asylum procedure in Hun-gary. The OIN should conduct a full examinationof the substantive grounds of the asylum seekers’claim.

• Subsequent asylum claims should not be de-prived of suspensive effect if the applicant neverhad his asylum claim examined on the merit be-fore.

• The OIN should perform more detailed and in-dividualized assessment of the principle of non-refoulement.

• The current restrictive detention policy shouldend and detention has to be applied only if otherless coercive measures cannot be applied effec-tively and “if there is a significant risk of abscon-ding”. The Dublin Regulation shall not be used asgrounds for detention after transfer.

• Children and vulnerable persons should notbe held in immigration jails.

• Age assessment should be conducted pro-perly, on a thorough scientific and methodologi-cal basis, and the benefit of the doubt should beapplied in case of the alleged minors until the ageassessment is conducted.

• Hungarian authorities should establish an ef-fective mechanism for the identification of vulne-rable persons amongst refugees and asylum-seekers.


Conclusions at nationallevel regardingthe implementationof the project:

• There should be a system in place which wouldenable access to the asylums seekers at the air-port, right after their return to Hungary under Du-blin procedure.

• The HHC has limited access to the asylumseekers under a Dublin procedure, because dueto the strict detention policy, most of them weredetained. As mentioned, HHC’s attorneys visit im-migration jails once a week, but their main acti-vity is legal counseling and they don’t have ca-pacity to perform detailed interviews with asylumseekers in order to fill in the follow up sheets.Other HHC staff do not have enough capacity tovisit the immigration jails regularly in order to im-plement this project.

• Also the conditions for conducting interviewswith asylum seekers are far less convenient thanin an office environment. We usually met withasylum seekers on the corridors of the jail, wherethere were many detainees, who wanted tospeak with us about many issues not necessaryrelated to Dublin and our time was limited to oneday per visit.

• Even though Hungary is mainly a receivingcountry, we received relatively little informationon asylum seekers returned to Hungary fromother EU NGOs. In several cases when we wan-ted to trace the asylum seeker returned to Hun-gary, we could not find his name in the registryof the OIN.



30 - Previously Minister forJustice and Law Reform.

31 - The Office of RefugeeApplications Commissioner

(2011) Monthly Report forDecember 2010.

Organization: Irish RefugeeCouncil

1. National context:legislation on asylum andDublin. Field observationsand recent developments

The Refugee Act 1996 (as amended) and the Eu-ropean legal instruments provide the key legis-lative framework for determining asylum andsubsidiary protection applications in Ireland. Ho-wever, Ireland has only recently attempted totranslate the Procedures Directive into domesticlaw, failed to implement the Temporary Protec-tion Directive and has opted out of the ReceptionDirective altogether.

The number of people seeking international pro-tection coming to Ireland has decreased in re-cent years from approximately 11,500 new ap-plications in 2002, to fewer than 2000 in 2010.The main source countries currently are Nigeria,which accounts for approximately 20 per cent ofall applicants, Pakistan, China, and DemocraticRepublic of Congo.

Applicants enter the system at an Irish Border bypresenting themselves to the Garda National Im-migration Bureau (GNIB) or within the state bypresenting themselves to either the Irish Natura-lisation and Immigration Service (INIS) or the Of-fice of the Refugee Applications Commissioner(ORAC) in Dublin.

The ORAC is responsible for registering an indi-vidual’s application for asylum in the first ins-tance and conducting a preliminary interview.The purpose of this interview is to establish if theindividual wishes to make an application for a de-claration for refugee status and, if so, the gene-ral grounds upon which the application is based.At this point, the applicant is referred to the Re-ception and Integration Agency (RIA). The RIA isresponsible for the planning, co-ordination andprovision of reception services to asylum see-kers. After an initial period in a reception centrein Dublin, the asylum seeker is dispersed by theRIA to a Direct Provision centre, most of whichare outside Dublin. Most applicants remain inthe Direct Provision system for the duration ofthe application. This is a largely cashless systemwhere the State provides full board accommo-dation. Asylum seekers are not allowed to workat any time during their protection application

and receive €19.10 weekly allowance or €9.60per child. This system has received much criti-cism in recent years, largely due to the amountof time people spend in Direct Provision as a re-sult of delays in processing applications.

Following the preliminary interview, the applicantis given a detailed questionnaire, which requireshim or her to provide biographical and other per-sonal details, travel particulars and, most im-portantly, the reasons for seeking asylum. Thisquestionnaire must be completed and returnedto the ORAC within two weeks.

Following the submission of the detailed ques-tionnaire, the applicant must attend a substan-tive interview, carried out by an ORAC case-worker. Although the applicant is entitled to havea legal representative present during the inter-view, this entitlement is rarely used. The detailedquestionnaire and substantive interview areusually completed with little or no legal advice,and without applicants really knowing what in-formation is required and/or what additional fac-tors will be taken into account. The interviewnormally takes place with no contemporaneousrecording and the ORAC Officer’s notes are notmade available to the applicant until after theclaim has been refused and is proceeding onappeal.

On the basis of the findings of the preliminary in-terview, the completed questionnaire, the subs-tantive interview and any relevant documentationthe ORAC official prepares a report on the ap-plication which will incorporate a recommenda-tion on whether or not refugee status should begranted, along with the reasons for this recom-mendation. ORAC recommendations that sup-port the asylum claim are passed on to the Mi-nister for Justice, Equality and Defence30. TheMinister is responsible for making the decision toeither grant or refuse a declaration as a refugeein accordance with section 17 of the RefugeeAct, 1996 (as amended). In 2010, of the 2,192recommendations made, only 24 were positiverecommendations31, a recognition rate of ap-proximately 1 per cent.

At any time in this process, the ORAC may de-termine that the person is subject to the DublinII Regulation and make a decision that they willbe transferred to another EU state. It is not unu-

sual for the asylum applicant not to know aboutthe refusal on these grounds until they are pickedup to be transferred.

In cases where the recommendation on the mainapplication is negative, the ORAC notify the ap-plicant accordingly. At this point, applicants areentitled to appeal to the Refugee Appeals Tribu-nal (RAT). The purpose of the RAT is to considerand decide appeals against the ORAC recom-mendations and make recommendations to theMinister. In 2009, 92 per cent of appeals to theRAT reaffirmed the recommendation of theORAC32. Unfortunately, recommendations by theRAT are not published which has lead to a lackof transparency in both the application and ap-peals process.

Negative recommendations by the RAT are pas-sed to the Minister who instructs INIS to issue anotice proposing deportation. Under the currentsystem, this notice enables an applicant to ap-ply for either ‘Subsidiary Protection’ and/or makerepresentations against deportation (and thatwould result, if successful, in ‘Leave to Remain’status), or agree to deportation or voluntary re-moval.

An applicant does not have the right to appealagainst the RAT recommendation. A RAT deci-sion may only be challenged by way of JudicialReview to the High Court, which is an expensiveand lengthy process for both the applicant andthe State.

1.1. Separated Children SeekingAsylum

Under the Refugee Act 1996 (as amended) im-migration officers or other authorised officerswho suspect that a child is aged under 18 anddoes not appear to be in the custody of anyperson shall inform the Health Service Executive(HSE) and thereupon the provisions of the ChildCare Act, 1991 shall apply to the child. The HSEthus assumes all legal responsibility for the childand must decide if it is necessary to apply for re-fugee status on behalf of the child.

Between 2000 and 2010, 5952 separated chil-dren were referred to the HSE, of which 2865were placed in care. 2868 were reunited with fa-mily members and the remainder were eitherage-reassessed and deemed to be over 18;were sent back to another EU country underDublin II; turned out to be accompanied; or im-mediately went missing33. There is no specialprovision within the Child Care Act, 1991 for se-parated children which has led to the creation ofa number of protection gaps for separated chil-dren seeking asylum in Ireland. Prior to 2010, se-parated children were accommodated in hostelswith limited care staff. Following a major reviewof child protection in Ireland these hostels have

been phased out and since January 2011 sepa-rated children are generally accommodated in re-sidential centres in Dublin for a period of twelveto sixteen weeks before being placed in fostercare. Separated children are also now generallyallocated a social worker as a matter of coursewhich did not happen in the past. However, des-pite these improvements in the provision of careto separated children a number of issues ofconcern remain for those working in the area.

1.2. Application of the Dublin IIRegulation in Ireland

The Dublin Regulation is directly applicable in Ire-land but was given domestic effect through Sec-tion 22 of the Refugee Act, 1996 (as amended)and the Refugee Act, 1996 (Section 22) Order,2003 (SI 423/2000). In the current asylum sys-tem, an individual making an asylum applicationmay be subject to the provisions of the Dublin IIRegulation to determine whether Ireland is infact responsible for processing their asylum ap-plication. The Dublin Unit within the ORAC isresponsible for the implementation of the DublinII Regulation. This unit is responsible for deter-mining whether applicants should be transferredto other EU member states or have their appli-cation for asylum assessed in Ireland. It alsodeals with requests from other member states totransfer applicants for asylum to Ireland. It shouldbe noted however that Ireland is primarily a sen-ding country and receives very few transfereesfrom other member states.

If an individual is found to be subject to the pro-visions of the Regulation it is up to that individualto make submissions in writing if they wish fortheir application to be processed in Ireland. Atthis stage the Refugee Applications Commissio-ner will take into account relevant information orsubmissions and representations made on thebehalf of the individual in coming to a decisionabout their transfer. However, applicants fre-quently are unaware that they fall under the Du-blin II Regulation and do not make additionalsubmissions in relation to their potential transfer.

In 2009, the ORAC made 402 Dublin II Regula-tion determinations, representing 10.3 per centof total cases finalised by the ORAC34. This wasa 2 per cent increase from 2008, where 385 Du-blin II Regulation determinations were made, re-presenting 8.4 per cent of total cases finalised byORAC35.

Applicants may appeal Dublin II Regulation de-terminations from the ORAC to the RAT. TheRefugee Act 1996 (Section 22) Order 2003 men-tioned above governs these appeals. Applicantshave fifteen working days to make and lodge theNotice of Appeal and do not have an option foran oral hearing. It should also be noted that thelodging of an appeal does not suspend the


32 - The RefugeeApplications Tribunal (2010)Annual Report for 2009

33 - Arnold and SarsfieldCollins (2011) Closing aProtection Gap, Dublin: IrishRefugee Council

34 - The Office of RefugeeApplications Commissioner(2010) Annual Report for 2009

35 - The Office of RefugeeApplications Commissioner(2009) Annual Report for 2008

transfer of application to the relevant country orthe removal of the applicant to the applicant’scountry of origin. In order to suspend the trans-fer, applicants must apply to the High Court foran injunction.

In practice, the anecdotal evidence would sug-gest that applicants are frequently being givennotice of the determination and being issued atransfer order simultaneously, thus limiting theirability to contact their legal representatives andlodge a Notice of Appeal. Nonetheless, 2009saw 143 appeals lodged with the RAT in relationto Dublin II Regulation determinations36.171 appeals were completed and at year endthere remained 26 ‘live’ appeals. In both 2008and 2009, the RAT affirmed 100 per cent of Du-blin II Regulation determinations37.

As previously mentioned, an applicant does nothave the right to appeal against a RAT decisionand the only way for these decisions to be chal-lenged is by way of Judicial Review to the HighCourt – an expensive and lengthy process for allinvolved.

1.3. Recent Developmentsin Ireland

In February 2011, a general election was held inIreland, which saw the Fianna Fáil Party thathad held power for the past 14 years removedfrom office. The new government is a coalitionbetween the Fine Gael Party and the LabourParty. In his first month in office the Minister forJustice, Equality and Defence, Minister AlanShatter, has promised to re-introduce the Immi-gration, Residence and Protection Bill for debatebefore the Houses of the Oireachtas. This bill willbe the fourth version of such a bill, which is pri-marily intended to consolidate previous legisla-tion on immigration and asylum as well as to in-troduce new measures and transpose keyprocedures into legislation which currently onlyexist in the form of statutory instruments. If thebill is passed into law, it is likely to have a signi-ficant impact on the immigration and asylumlandscape in Ireland.

2. Assessmentof project implementationby the partnerorganization

At the beginning of the project cycle, the Irish Re-fugee Council established a project officer post.The project officer was tasked with carrying outany administrative duties related to the project,and liaising with the finance officer as well wor-king towards project goals such as the countryspecific brochures, advertising the network toother organisations working with asylum seekersin Ireland and interviewing any asylum seekerssubject to Dublin II referred to the IRC. This postis for four days per month and has been held bya number of individuals. The project officer gaveupdates on the progress of the project at each bimonthly team meeting. This served to remind allstaff members and interns that should they haveenquires from an asylum seeker who was subjectto the Dublin II Regulation these people should bereferred to the project officer for a preparatory in-terview and needs assessment.

In line with the partnership agreement the IrishRefugee Council has delivered on a number ofoutcomes including the finalisation of the bro-chure on Irish asylum procedures and the im-plementation of the Dublin II Regulation in Ire-land. The IRC has also been proactive in seekingthe support of organisations within Ireland suchas the ORAC, Refugee Legal Services (RLS),members of the Refugee and Immigration Prac-titioners Network (RIPN), and other regionalNGOs that have contact with asylum seekersthat may be subject to the Dublin II Regulation.

Despite these efforts, to date, the IRC has re-ceived no referrals from other organisations in re-lation to the Transnational Advisory and AssistantNetwork for Asylum Seekers under a Dublin Pro-cess. All asylum seekers that have undergone apreparation interview were individuals who ap-proached the IRC independently, generally in re-lation to another aspect of their case. There area number of reasons why there has been such asmall number of referrals. First, as outlinedabove, anecdotal evidence suggests that manyapplicants frequently are served with notice andtransfer orders simultaneously, thus precludingthem from accessing services such as this. Fre-quently, people who have been issued a transferorder do not attend with their legal representa-tion again, and so are not identified as peoplethat may benefit from being referred to the IRC.Second, in some cases that came to the atten-tion of the IRC, applicants are notified that a de-cision has been made in their case. Worryingly,they were not informed of the details of that de-cision. It subsequently emerged, when they werepicked up by Gardaí that the decision related toa decision to transfer them to another EU mem-


36 - The RefugeeApplications Tribunal (2010)

Annual Report for 2009

37 - The RefugeeApplications Tribunal (2010)

Annual Report for 2009

ber state under Dublin II. Finally, many appli-cants are more concerned with challenging thedecision to transfer them to another EU Statethan establishing links with a partner organisationin the receiving country.

Of the four applicants38 that have been identifiedand interviewed by the IRC to date, 100 percent of these applicants were subject to transferto the United Kingdom (UK). This is not unusualand is in line with current trends. There are a li-mited number of direct flights from outside of Eu-rope to Ireland and any applicant entering thecountry via a sea port will have passed throughanother EU state. In many cases, applicantshave previously had visas of some description forother EU states, most commonly the UK, orhave previously applied for asylum in another ju-risdiction, again most commonly the UK. As a re-sult, the lack of a formal partner in the UK or Nor-thern Ireland has proven a significant barrier inproviding any meaningful assistance to indivi-duals subject to transfer from Ireland under theDublin II Regulation.

Furthermore, since there are very few applica-tions from other member states to Ireland, askingthe Irish authorities to take responsibility for asy-

lum applications, the IRC did not receive any re-ferrals from other partners involved with the pro-ject. Statistics in relation to the number of appli-cants that are transferred to Ireland under DublinII are not held but anecdotal evidence suggeststhat of the small number of asylum seekers thatarrive through this means, the vast majority ofsuch applicants are transferred from the UK toIreland.

Again, without a partner in the UK to identifyand assess the needs of these individuals, theIRC has not received any referrals. Individualsthat have been identified as having been trans-ferred to Ireland under the Dublin II Regulationhave either presented themselves at the officesof the IRC seeking assistance or have been re-ferred by other NGOs working in the sector in Ire-land.

Without a larger sample it is difficult to commenton any trends amongst asylum seekers facingtransfer under the Dublin II Regulation. However,of the four people interviewed, most were largelyunaware of the implications for their protectionapplications of having even simply a transit visafor the UK. Only one of the four was happy to betransferred to the UK due to family links.


38 - Country of Origin:Jamaica – 1; Sri Lanka – 1;Algeria – 1; Afghanistan – 1

39 - Despite assisting fourindividuals and conductingpreparatory interviews,as they were all due to betransferred to the UK wherethere is no partner, they did notbenefit in any meaningful wayfrom their engagement with theproject, hence the zero figurerecorded here.

CATEGORY


asylum seekers under the Dublin procedure whobenefited from an individual diagnosis 39




NUMBER

4

0

0

0

0

3. Analysisof the applicationof dublin at national level(case studies)

As mentioned above, with regard to the Dublin IIRegulation, Ireland is primarily a sending countryand not a receiving country. This fact naturally isof significant importance when analysing proce-dures in Ireland. As outlined above, the Dublin IIRegulation is applied directly and has been trans-posed into domestic law by Statutory Instrument423/2003. The ‘Dublin Unit’ within the ORAC istasked with investigating if an applicant is subjectto the Regulation and continues to work with au-thorities throughout Europe to this end.

During the life of this project the IRC identified anumber of issues related to the application ofthe Dublin II Regulation. Some of these themesare unique to the Irish context others however willhave resonance throughout the EU.

3.1. Access to Information

When applicants make their initial asylum claim,they are presented with an information ‘leaflet’containing details of the asylum process in Ire-land and the various laws and regulations thatgovern Ireland’s protection system. Included wi-thin this ‘leaflet’ is information regarding Dublin II.The name ‘leaflet’ is somewhat misleading ho-wever, as this document runs to forty-three A4pages.

The ‘leaflet’ is available in 21 languages40 and hasa chapter (five pages) devoted to the Dublin II Re-gulation. Despite the ‘leaflet’ being available in se-veral different languages, asylum seekers incontact with the Irish Refugee Council have fre-quently said they do not understand the infor-mation. The ‘leaflet’ is written in quite legalisticand technical language and thus is not easily un-derstandable. Furthermore, not every country inthe world enjoys the high literacy rates that areevident in Ireland. This is especially importantwhen considering particularly vulnerable appli-cants such as children or women who may havecome from a country where the education of girlsand women is not highly valued. There is also nochild-friendly version of this ‘leaflet’ available.

Applicants who have come to the attention of theIRC and have subsequently been determined tobe subject to transfer pursuant to the Dublin IIRegulation, have frequently stated that they wereeither unaware of the process or did not un-derstand the process.

Of particular concern, there have been incidentsof letters being issued by the ORAC informing anapplicant that a decision has been made but

not indicating what that decision was or outliningthe reasoning behind that statement. Conse-quently, it has proven difficult for the IRC toconduct preparatory interviews or to gather suf-ficient data to produce substantial results espe-cially with regard to how Irish authorities progressrequests to other member states to ‘take controlof’ or ‘take back’ applicants.

Two young Tamil men from Sri Lanka were as-sisted by the IRC in making their claims for asy-lum. Both men had travelled to Ireland from SriLanka via Dubai and the UK. They both claimedasylum in September 2010. Both presented tothe IRC in relation to their general claims for asy-lum and seeking assistance accessing support.Both young men attended with IRC representa-tives on a number of occasions. Both receivedletters stating that a decision had been made intheir case. The letter however did not state whatthat decision was or what the implications of saiddecision were. The IRC attempted to establishwhat the decision was, however in the interveningperiod one of the young men was picked up byauthorities and transferred to the UK.Following the transfer of his friend, the secondyoung man, Mr S presented at the IRC in astate of distress. It subsequently emerged thatMr S was also subject to a transfer and a pre-paratory interview was conducted and based onour in-house knowledge of NGOs and Law Cen-tres in the UK we gave him information thatmight be useful. Ms S has now been transferredto the UK.

3.2. Returns to Greece

Following the recent ECtHR decision in M.S.S. vBelgium & Greece in which the court found ma-jor flaws in the asylum system in Greece theIrish government confirmed that it is halting alltransfers to Greece under Dublin II.

In practice, however, transfers to Greece havebeen halted for the past number of months dueto a number of cases that have been taken to theHigh Court of Ireland. The applicants do not dis-pute that they came into Europe via Greece butargue that their human rights will be violated ifthey were to return there for consideration oftheir asylum applications. This is because of theasylum decision making process and supportsystem in Greece which has received wides-pread condemnation. The matter has been re-ferred by the High Court to the Court of Justiceof the European Union for further consideration.The case has been joined with other referrals e.g.from the UK and is awaiting consideration. Allother challenges to Greek transfer in the Irishcourts remain pending, until a decision is rea-ched in regard to the referred cases however thelandmark decision in M.S.S. v Belgium andGreece will hopefully have widespread implica-tions on this issue.


40 - The ORAC „leaflet‟is available in Albanian,

Arabic, Croatian,Czech, Chinese, English,

Farsi, French, KurdishSorani, Kurdish Kurmanji,

Portuguese, Punjabi,Romanian, Russian, Serbian,Slovak, Spanish, Tamil, Thai,

Turkish, and Urdu.

41 - Per comms, 2010

42 - Country of Origin:Malawi – 3 children;Zimbabwe – 1 child;

Congo – 1 child

3.3. Separated ChildrenSeeking Asylum

Throughout the EU, member states have adop-ted different approaches to dealing with separa-ted children who may fall within the remit of theDublin II Regulation. The Scandinavian countriesalong with France for example do not transfer se-parated children. Ireland however does transferseparated children and according to the De-partment of Justice, Equality and Law Reform’sStatistics Department41 five children42 were trans-ferred in 2009. All of these children were trans-ferred to the United Kingdom. Unfortunately, fi-gures for 2010 are not yet available.

The IRC has not had any contact with separatedchildren subject to transfer under the Dublin IIRegulation.

3.4. The TransferExperience

As previously outlined most applicants to whomthe Dublin II Regulation can be applied are trans-ferred from Ireland to the UK. Applicants who aresubject to a transfer order are typically ‘pickedup’ in the early morning by Gardaí from theGNIB. They must then dress and pack under thesupervision of GNIB officers. They are generallynot informed of the exact date and time thatthey will be transferred.

This is similar to experiences of applicants whoseasylum claims have been rejected and are sub-ject to a deportation order. In both cases, indivi-duals are generally brought to the airport, wherethey are kept until their flight departs later thatday. As the pick-ups generally take place in theearly hours of the morning, and flights may insome cases not be scheduled until the eveningor night time, this makes for a long and stress-ful day.

There are no special provisions made for chil-dren. The IRC normally does not have access tothese individuals, nor contact with them followingtheir departure from Ireland. However, evidencehas emerged from a deportation flight in De-cember 2010, which was returned due to tech-nical difficulties with the aircraft that individualsare not treated with dignity or respect duringthis process.

Complaints included lack of privacy going to thetoilet, overzealous use of restraints, inadequateprovision of food and water, the detention ofchildren, and intimidation by GNIB officers. Itshould be noted that as no partner organisationwas available to connect with transferees fromIreland to the UK, we cannot be sure if transfe-rees within Europe are treated in the same ap-palling manner.


The Dublin II Regulation has been seized uponby the Irish authorities and used to its fullest ex-tent to minimise the numbers of asylum seekerswhose substantive claims are processed in Ire-land. As outlined above, for reasons of geogra-phy and air routes, Ireland is frequently not thefirst European country that an asylum seekerenters and thus is primarily a sending country.Most transfers are to the UK, again largely due toour geography.

In light of the findings from this project and theanecdotal evidence the IRC would like to makethe following recommendations with regard tothe application of the Dublin II Regulation inIreland:

• Information should be presented in a clear andeasily understood manner. Not only should writ-ten material be available in various languages butthe style of language should be easily accessibleand bear in mind varying rates of literacy acrossthe globe

• Child friendly information should be made avai-lable. The IRC in partnership with UNICEF hascreated a child friendly map of the asylum pro-cess in Ireland but additional material is neededwith regard to the Dublin II Regulation

• Decisions should be communicated to appli-cants in a clear, easily understood manner. Ap-plicants should also be informed of the reasoningbehind decisions.

• Applicants should have the opportunity toconsult legal advisers before any attempt ismade to effect their transfer to ensure that theyhave an opportunity to challenge their removalbefore it takes place.

• The decisions of the Refugee Appeals Tribunalshould be published and made publically availa-ble as is the case with High Court and SupremeCourt decisions.

• Ensure that an appeal to the RAT has a sus-pensive effect on the transfer order rather thanmaking it necessary to apply to the High Courtfor an injunction. This measure would serve toboth save costs for all parties involved and re-duce the judicial burden.

• Separated children seeking asylum should notbe transferred except for the purpose of familyreunification and then only if it is in the best in-terest of the child.

• At all stages, individuals should be treatedwith dignity and respect and not subject to un-due force, restraint or detention.



43 - GORIZIA: responsiblefor asylum applications

lodged in the regionsFriuli-Venezia Giulia, Veneto,

Trentino Alto Adige;

MILANO: responsible forasylum applications lodged in

the region Lombardia;

ROMA: competentfor asylum applications

lodged in the regions Lazio,Abruzzo, Sardegna, Toscana,

Marche,Umbria;

FOGGIA: competentfor asylum applicationslodged in the provincesof Foggia and Barletta-

Andria-Trani;

SIRACUSA: competentfor asylum applicationslodged in the provinces

of Siracusa, Ragusa,Caltanissetta, Catania;

CROTONE: competentfor asylum applications

lodged in the regionsCalabria and Basilicata;

TRAPANI: competentfor asylum applicationslodged in the provincesof Agrigento, Trapani,

Palermo, Messina, Enna;

BARI: competentfor asylum applicationslodged in the provincesof Bari, Brindisi, Lecce

and Taranto;

CASERTA: competentfor asylum applications

lodged in the regionsCampania and Molise;

TORINO: competentfor asylum applications

lodged in the regionsValle d'Aosta, Piemonte,

Liguria, Emilia Romagna.

Organization: The ItalianCouncil for Refugees (CIR)

1. National context:legislation on asylum andDublin. Field observationsand recent developments

1.1. Asylum legislation in Italy

Laws currently ruling the asylum legislationin Italy are:

• Art. 10, comma 3, of the Constitution of the Ita-lian Republic, which provides the right to asylumfor "A foreigner to whom the practical exercise inhis own country of democratic freedoms, gua-ranteed by the Italian Constitution, is precluded,is entitled to the right to asylum within the terri-tory of the Republic, under conditions laid downby law"; gives a broader definition of a personentitled to protection compared to the one in theGeneva Convention.

• D.lgs n. 140 of 2005 which became effectiveon 19th October 2005 by which Directive2003/9/CE, the “Reception Directive”, has beenimplemented.

• D.lgs n. 251 of 2007 became effective on 19thJanuary 2008 by which Directive 2004/83/CE,the “Qualifications Directive” has been imple-mented.

• D.lgs n. 25 of 2008 effective since 3rd March2008 by which Council Directive 2005/85/CE -on minimum standards on procedures in Mem-ber States for granting and withdrawing refugeestatus - the “Procedures Directive”, has beenimplemented. National authorities in charge ofasylum issues:- National Commission for the Right of Asylum(Department for Civil Liberties and Immigration/ Ministry of the Internal Affairs)

- 10 Territorial Commissions for the Recognitionof International Protection43 (Department forCivil Liberties and Immigration / Ministry of theInternal Affairs

- Dublin Unit c/o Department for Civil Libertiesand Immigration / Ministry of the Interior

- Border Police (Department of Public Securityof the Ministry of the Interior)

- Questura (Police Headquarter)

1.2. Asylum procedure in Italy

According to the Qualifications Decree (Dlgs.251/2007), the concept of “asylum” has beenreplaced by that of “international protection”, butfor the sake of simplicity the word ‘asylum’ is stillcommonly used.As soon as a potential asylum seeker (a.s.) arrivesin Italian territory, s/he should go to the BorderPolice or to the local Questura (Police Head-quarters) in order to claim asylum.

The procedure involves various steps: fingerprin-ting; a short interview (“verbalizzazione”) conduc-ted by the Police concerning the information onprevious stays/transit in other European countriesand on the eventual document attesting the iden-tity and eventual visa (national passport); and fi-nally, when verified that the case is Italy’s res-ponsibility according to the Dublin II Regulation,communication of the date for the interview be-fore the relevant Territorial Commission (T.C.).The decision is up to the responsible T.C. wherethe asylum application was lodged (in Italy thereare 10 Territorial Commissions, each responsiblefor different regions or districts). According to thenew law [Procedures (D.lgs 25/2008) and Quali-fications (D.lgs 251/2007) Decrees] in Italy thereis only one asylum procedure i.e. there is no ac-celerated procedure.The a.s. can get two different forms of interna-tional protection:- Conventional Asylum (the permit of stay is va-lid for 5 years);

- Subsidiary Protection (the permit of stay is va-lid for 3 years. To renew such a permit of stay,the beneficiary has to apply to the responsibleQuestura. The renewal is up to the responsibleT.C. who decides without holding another in-terview).

When neither refugee status (“conventional asy-lum”) nor subsidiary protection is granted, the T. C.can decide between two different outcomes:- a real rejection without granting any form ofprotection;

- a rejection with a recommendation to theQuestura to provide the a.s. with a permit ofstay “on humanitarian grounds”.

Humanitarian Protection (the permit of stay is va-lid for 1 year. In order to renew such a permit ofstay, the beneficiary has to apply to the respon-sible Questura. The decision for the renewal is

however up to the responsible Commission whodecides without conducting another interview44).If the asylum claim is rejected or if the asylum see-ker. does not agree with the status granted, an ap-peal can be lodged. The appeal has to be presen-ted by a lawyer at the Civil Court responsible for theplace [if the a.s. is unable to pay the legal fees dueto insufficient money or lack of income, s/he hasthe option of getting free legal aid (patrocinio gra-tuito) by a lawyer who is paid by the State]. If theasylum seeker is free within the territory, the appealmust be presented within 30 days, but if s/he isstaying in an accommodation centre for asylumseekers (C.A.R.A.), the appeal should be presen-ted within 15 days (with some exceptions). Duringthe appeal the a.s. can have a permit of stay (ex-cept if s/he is held in a retention centre or hostedin a C.A.R.A. for some specific reasons).

1.3. Dublin legislation in Italy

In Italy the two decrees, Procedures and Quali-fications, have no specific impact on the appli-cation of the Dublin II Regulation. What is fore-seen for asylum seekers is valid for “Dublincases”.

After the fingerprinting at the Questura, the au-thorities check the system to verify that the a.s.has not been to and/or fingerprinted in anotherEuropean country. If his/her fingerprints arefound or the a.s. admits freely to have been inanother country, s/he will be considered a “Du-blin case” and his/her file will be sent to the Du-blin Unit who will determine the country respon-sible for examining the asylum claim.An a.s. has the right to start a judicial review ofa Dublin decision within 60 days, before the Ad-ministrative Regional Court (“T.A.R.”) of the placewhere the decision has been notified. There is nooral hearing and the appeal has no suspensiveeffect. An a.s. has the right to ask the court tosuspend his/her transfer, however this requestalso does not have a suspensive effect.Following the decision taken in other EU Mem-ber States (e.g. Norway, Hungary, France etc.),after the recommendations by ECRE andUNHCR and, above all, after the ECtHR judg-ment M.S.S. v. Belgium and Greece, the ItalianMinister of the Interior has “de facto” suspendedtransfers to Greece because of the violation ofArt. 3 and 13 of the European Convention onHuman Rights.

Statistics


44 - It is extremely importantto specify that – in case therenewal is authorized – thereare two different options:- if the decision was takenafter the implementation of theDecree 251/2007 (January 19th2008), the “humanitarianstatus” will be confirmed andconsequently the permit of staywill be renewed for only 1 year;- if the decision was taken priorto the implementation of theabove-mentioned Decree,when the notion of “subsidiaryprotection” had not yet beenintroduced into the Italianlegislation, the humanitarianstatus will be automaticallyconverted into “subsidiaryprotection” and a 3 yearresidence permit willbe issued.

2008 30 145

2009 17 670

2010 10 050

Number of international protectionapplications submitted:

2008 45 % (8 % conventionalasylum plus 37%subsidiary protection)

2009 33%

2010 Not available

Source : Ministry of the Interior

Rate of recognitionof the refugee status:

2009 2010

refugees (with a conventional asylum) 44% 55%

asylum seekers 37% 22%

humanitarian protection 9 % 8 %

subsidiary protection 8 % 13 %

Others 2% 2%

� Countries of origin of the asylum seekers:In 2008 the majority came from Nigeria, Somalia,Eritrea, Afghanistan, Cote d’Ivoire and Ghana.(Source: “Dossier Statistico Immigrazione 2009 –XIX Rapporto Caritas/Migrantes”). In 2009 the ma-jority came from Nigeria, Somalia, Pakistan, Ban-gladesh and Eritrea. (Source: “Dossier StatisticoImmigrazione 2010 – XX Rapporto Caritas/Mi-grantes”).

For 2010 the statistics are not yet available.

� Clients assisted by CIR-Rome:

2009 : In 2009 CIR-Rome assisted 1,220 clients(mainly from: Eritrea, Afghanistan, Democratic Re-public of Congo, Nigeria, Ethiopia, Togo, Ivory Co-ast and Iran).

2010 : During 2010 CIR-Rome assisted 1,835clients (mainly from Eritrea, Afghanistan and De-mocratic Republic of Congo, as in 2009, thenfrom Ethiopia, Nigeria, Togo, Ivory Coast and Iran).



ASYLUM SEEKERS TRANSFERRED TO ITALY IN-COMING REQUESTS

2008 1 308 5 676

2009 2 658 10 596

2010 not yet available not yet available

Statistics on the number of asylum seekers transferred to Italy:

N.B.: All the following statistical data refer to the years 2008 and 2009, as 2010 statistics are not yet available.

SUCCESSFUL TRANSFERS FROM ITALY OUT-GOING REQUESTSTO ANOTHER MEMBER STATE

2008 124 1 895

2009 47 1 377

2010 not yet available not yet available

Statistics on the number of asylum seekers transferred from Italy toanother responsible country:

N.B.: All the following statistical data refer to the years 2008 and 2009, as that 2010 statistics are not yet available.

CATEGORY






NUMBER

88 (N.B.: Most of them got counselingfrom our CIR colleagues at the seaports).

35 (N.B.: Most of them got counseling from ourCIR colleagues at the seaports).

None

480 (N.B.: This number includes the clients whobenefited both from general asylum informationand the Dublin procedure).

2 (from France terre d’asile).(N.B.: Both cases have been signaled but one ofthem later won his appeal against the Dublin Unitand therefore has been allowed to remain inFrance).

Difficulties experienced:

Considering the fact that the project’s final bene-ficiaries had to be the clients of the other networkmembers, it was decided to write more about thepractice than about the theory and the law fore-seen in Italy. In fact, CIR’s experience at the FrontOffice in Rome has shown that what is supposedto happen, according to the law is not alwayswhat the Police Authorities actually do. .In recent years our clients at CIR Front-Office havemostly come asking CIR to help them avoid theirtransfer to the responsible country and this has

happened very frequently with “Dublin cases” dueto be transferred to Greece but on some occa-sions we have also received the same requestfrom “Dublin cases” going to be transferred toother countries, commonly considered safe andhaving a better social situation than Italy (see twoexamples at par. 4 pg. 8).One of the main activities foreseen by the Projectwas to submit the individual follow-up files of thetransferring “Dublin cases” in order to guaranteethem a continuity of assistance and treatment bytransmitting all their personal data and more rele-vant information to the network partner in the re-

ceiving country. This has not been an easy task,considering that CIR’s main office is not generallyaccessed by “Dublin cases” due to be transferredto another European Country under the Dublin IIRegulation. The same situation is valid at nationallevel. Indeed, Italy is mostly a “receiving” country(: just consider that in 2009 the successful trans-fers from Italy to the other Member States havebeen 47 against 2,658 successful transfers fromthe other Member States to Italy). This means thatour work is generally on the opposite side: otherNGOs can report to CIR a “Dublin case” going tobe transferred back to Italy.For the cases going to be transferred abroad CIRis unfortunately not able to verify whether the Du-blin Unit decision is correct, to check the state ofhealth of the Dublin case, and to inform the bor-der service or an NGO in the receiving MemberState in order to arrange for more adequate as-sistance to the arriving person.Also our CIR colleagues at the various seaportsand border points all over Italy have experiencedthe same difficulty: they are allowed to see the fo-reigners upon arrival, nonetheless they do nothave much time for treating the different cases pre-sent on board or at the border Point. Very fre-quently it deals with emergency operations: ourcolleagues’ efforts are intended to meet the new-comers on the ships/boats and to inform themvery quickly of their right to apply, if they wish, forinternational protection in Italy. They carry out theirtasks without any comfort and they are not evenable to sit in a room together with the “potential”a.s. in order to collect her/his personal data and tofill the Project’s individual follow-up file in cases/he were a “Dublin case” (this tool - consisting of11 pages, 6 of which to be filled by the partner inthe sending country - would require about onehour to be properly filled in): instead, the quickertheir action and counselling, the more effectivetheir intervention to avoid the foreigners’ repatria-tion or their transfer back to the original place.As a consequence, should we consider only thefollow-up files received, there were two cases fromFrance terre d’asile; should we take into conside-ration all the requests of information/counselling on“Dublin cases” from other European countries,the number is higher by far. The more frequent rea-son for which NGOs all over Europe required ourcounselling was to get information on the socialconditions and lodging facilities in Italy becausetheir legal advisors and lawyers wanted to supporttheir appeals against their clients’ transfer back toItaly by showing the shortfalls of the Italian socialand reception system.

Positive effects:

Considering what derived in 2009/2010 from theimplementation of the Project “Dubliners” - run byCIR and another 5 organizations (Germany,Greece, Hungary, Spain and Sweden) and 4 Du-blin Units (not the German one), the creation of thebrochures has been extremely important. In fact,from the final report of the project “Dubliners”:

« The lack of information provided to Dubliners issurely one of the most serious problems encoun-tered during the research. Asylum-seekers haveoften proved to be unaware of what was happe-ning to them, of their rights and of the procedureitself. (…) ».Having in hand practical and up-dated brochureson the current legislation and practice in the EUMember States partner of this project, has beenone of the strong points of this project that offerscounselling and answers both to CIR clients andto other NGOs, both in Italy and abroad.The short brochure is useful not only to asylum see-kers but also Police staff. Similarly, the Italian Du-blin Unit, that on this occasion as for other previoussimilar ERF projects agreed on the importance ofhaving pamphlets or other information availablefor consultation, was very sympathetic towardsthe vulnerable “Dublin cases” signalled by NGOs.

3. Analysis of theapplication of Dublin atnational level (case studies)

During the daily work at CIR and through the legalcounselling provided to asylum seekers duringthis project, CIR identified the following main is-sues related to the application of the Dublin II Re-gulation:a) Request to the Italian Dublin Unit for the appli-cation of the sovereignty clause:When NGOs refer to the Italian Dublin Unit some“Dublin cases”, whose responsibility has alreadybeen assigned to another European country, asfragile and vulnerable cases - sometimes with asteady social integration in the Italian territory(knowledge of the Italian language, successful orstill in progress education process, a specific andeffective health programme which is valid for theirrecovery from trauma, etc.) - the Dublin Unit mayapply the “sovereignty clause” enabling them to re-main in Italy.

- CIR is currently assisting a Pakistani lady, an ex-tremely fragile case, who did not want to betransferred to Sweden, even if the responsibilityfor her case had already been accepted by theSwedish Dublin Unit.

- Another case is an Iraqi citizen, who attemptedsuicide to prevent removal to Sweden, due tothe fear of being repatriated to Iraq (in fact, re-cently some countries in West Europe – in par-ticular Sweden, Norway, Denmark and the Uni-ted Kingdom – have expelled many Iraqis totheir country of origin).

After some months of suspension, very recentlythe Italian Dublin Unit has finally accepted res-ponsibility for these cases. For both cases CIR hadapplied for the “sovereignty clause” to be used andhad sent a request to the Dublin Unit for their re-examination.


b) Return to Greece under Dublin procedure:It is important to point out that frequently at natio-nal level the appeals lodged against transfer toGreece were successful.We could mention some case laws on the imple-mentation of the Dublin II Regulation, starting withthe important success achieved by a CIR lawyer:A verdict45 of the Administrative Regional Court(“TAR”) of the Region Puglia in Lecce, establishingthe nullification of the decision of the Dublin Unit forthe transfer of a “Dublin case” to Greece as theresponsible asylum Country and, as a conse-quence, authorizing the person to remain in Italy.

Furthermore, another noteworthy case mentionedin the “Dubliners Project” Final report, pg. 47 (pro-ject implemented under the ERF Community Ac-tions 2007): « Another relevant case regards anIranian asylum seeker, Mr. A. had to be transferredfrom Italy to Greece after a decision taken by theItalian Dublin Unit considering Greece as a “safethird country” and not finding reasons for applyingart. 3.2. Nevertheless, on the 16th February 2010,the Regional Administrative Court for the Region ofLazio revoked the transfer decision consideringthe applicant’s appeal as valid (: decision n.2249/10). According to the Court, the Italian ad-ministration should have undertaken a deeper eva-luation of the situation the asylum-seeker wouldhave had to face in Greece. (…). This importantdecision confirms and consolidates the existenceof a clear jurisprudence stipulating the necessity ofsuspending transfers to Greece and of applyingthe discretionary clause under the Dublin Regula-tion when, due to the particular situation in thiscountry, transferred the fundamental rights of asy-lum-seekers would not be guaranteed ».

After the decision delivered from the StrasbourgCourt (Case n. 30696/09 MSS vs Belgium andGreece, 21/01/2011), on March 17th 2011 CIR of-ficially asked the Italian Minister of the Interior tostop transfers to Greece46.

c) Follow-up of vulnerable cases:An Afghan a.s., “Dublin case” from Norway, arrivedvia Brussels at the Airport “Marco Polo” in Venice:he had been signalled by the Dublin Unit as a par-ticularly vulnerable case. The a.s. was assisted bythe Municipality of Venice and the Department ofMental Health of Marghera. CIR operators couldnot interview him because he was under the in-fluence of depressants. Then he was accompa-nied to the Hospital of Mestre, Psychiatric Ward.


4.1. Conclusions andrecommendations at national levelin order to improve theimplementation of the project

• provide complete and coherent information in alanguage that asylum seekers are sure to unders-tand: e.g. for Italy also a translation into Tigrinyawould be useful considering the high number ofasylum seekers from Eritrea;• improve the working conditions for the borderoperators who are very frequently not offered thebest facilities for assisting and conducting inter-views with “Dublin cases”;• to keep both the brochures - created within thisproject - constantly up-dated;• to facilitate the implementation of projects, likethe current one, by using more practical and shor-ter questionnaires: too much bureaucracy is veryoften an obstacle for the quick referral of the caseto the partner in the receiving country by the part-ner in the transferring country (e.g. the passwordfor the reading of the questionnaire could be takenoff; the procedure with non-partner NGOs shouldbe eased by deleting the necessity of an official adhoc agreement with the leading agency).

4.2. Conclusions andrecommendations on theapplication of the Dublin IIRegulation in Italy

Probably the weakest matter in Italy remains thereception system. A reception system does existbut it cannot completely satisfy the number ofasylum seekers (including also the “Dublin cases”)in need of accommodation. Hence the Italian Go-vernment should permanently increase the num-ber of places within the National Reception Sys-tem, called S.P.R.A.R. [Servizio di Protezione perRichiedenti Asilo e Rifugiati (: Protection Service forAsylum Seekers and Refugees)], as it has beendone nowadays after the North African humanita-rian crisis for the massive flows of boat people (in-cluding asylum seekers) in Italy coming from thoseareas.In addition, the tendency of some sending MemberStates proceeding with transfer of “Dublin cases”without previous communication to the Italian Au-thorities is continuing as in the past and, further-more, very frequently this incorrect procedure ispursued by causing serious practical problems toborder staff and police authorities who have toface emergency situations. And what is worse, so-metimes the sending countries are inclined to sup-ply incomplete information on the real health condi-tions of the “Dublin cases” on arrival in Italy toavoid possible refusal of their taking in charge.


45 - N. 1870/2008dated 14th May 2008

46 - “CIR asks to the ItalianMinister of the Interior to

suspend “tout court” the so-called “Dublin cases” to

Greece, as already happens inother European Countries,

recently also in France. In itsdecision the Strasbourg Courtrecognizes that the situation ofthe asylum seekers in Greece is

lacking both as concerns theprocedures for the recognition

of the refugee status and asconcerns the reception and

detention conditions. Over thelast years this situation hasbeen frequently reported by

various protection bodies,included UNHCR, which

already in April 2008 started toask to the EU Member States

not to proceed with the transfersof “Dublin cases” to Greece.

The Strasbourg Court, with itsdecision, has recognized the

responsibility both of Greece forthe violation of art. 3 and art.

13 - and also of art. 3 of ECHR- and of Belgium for having

proceeded with the transfer toGreece putting the asylumseeker, inter alia, at risk of

refoulement to Afghanistan,through his transfer to Greece.

That decision – the firstrecognizing the violation of the

ECHR with reference to atransfer within the Dublin II

Regulation – puts a strongstrain on the consequences of

the application of theRegulation since all Member

States, that should make atransfer not only to Greece but

also to other EU MemberStates, are now obliged to verify

that this measure would notexpose the person to a risk ofviolation of the ECHR. In thepractice, in the past Italy has

sometimes applied the so-called“sovereignty clause” but on a

“case by case” evaluation,therefore long and expensive,

and not always with asuccessful result for the “Dublincase”. CIR underlines that some

cases to which this clause hasnot been applied, have beendeemed as unfeasible by the

national courts called to take adecision”.


47 - It has to be noted that'asylum' in Polish law differfrom 'asylum' in internationallaw. Under the law, foreignersmay be granted asylum in theRepublic of Poland if it isnecessary for providing themwith protection and if it is in agood interest of the Republic ofPoland. This form of protectionis never granted and hardlyapplied for. In this report'asylum' shall mean asylum ininternational law.

Organization: HelsinkiFoundation for Human Rights


1.1. Legislation on asylum

Asylum legislation in Poland is regulated in theAct of 13 June 2003 on granting protection to fo-reigners within the territory of the Republic of Po-land (Journal of Laws of 2003, No 128, item 1176).A related Act is the Act on Foreigners of 13 June2003 (Journal of Laws of 2003, No 128, it. 1175).The administrative procedure applied in refugeecases is defined in the Code of administrative pro-ceedings (Journal of Laws of 1960 No 30, it. 168).

Basically, there are three forms of protection to begranted to a foreigner asking for asylum in Po-land47, which are examined in one proceedings:refugee status (status uchodźcy), subsidiaryprotection (ochrona uzupełniająca) and toleratedstay permit (zgoda na pobyt tolerowany). The firsttwo forms of protection are based on the GenevaConvention of 1951 and the Qualification Directive,the last form is a form of national protection. Thislast form of protection is granted if the expulsion ofthe foreigner: 1)would constitute a threat to his/herlife, freedom and personal safety, when in the coun-try of origin he/she could be subjected to torture,inhumane or degrading treatment or punishment;could be forced to work; deprived the right to fairtrial; or could be punished without any legal grounds– within the meaning of the Convention for the Pro-tection on Human Rights and Fundamental Free-doms; 2) would violate the right to family life withinthe meaning of the Convention on Human Rightsand Fundamental Freedoms (art. 8 ECHR) or wouldviolate the child’s rights determined in the UNConvention on the Rights of the Child to the extentthat the psychophysical development of such childis threatened; 3) is unenforceable due to reasonsbeyond the control of the authority executing thedecision on expulsion and beyond this foreigner(e.g. the foreigner is considered stateless or doesnot have any documents and his/her identity can-not be confirmed).Asylum request (i.e. application for granting refu-gee status) should be submitted through the offi-

cer of the Border Guard to the Head of the Officefor Foreigners. When a person decides to apply forasylum, his visa for entering Poland is cancelledand the passport is passed by the border guard tothe deposit of the Head of the Office for Forei-gners. The person gets instead a temporary ID do-cument (Tymczasowe Zaswiadczenie TozsamosciCudzoziemca, green card), valid for one month,this is afterwards extended by the Head of the Of-fice for Foreigners until the end of the asylum pro-cedure.The Head of the Office for Foreigners examines thecase as the authority of first instance. The most im-portant phase of the proceeding is a hearing, du-ring which the applicant is questioned about thereasons why he/she left his/her country of origin.During the interview, the asylum seeker is entitledto be assisted by an interpreter. Documents andother evidence may be presented at any stage ofthe proceedings (before, during or after the hea-ring) before the authority takes the decision. Au-thorities provide for a translation of the documents.According to the legislation, first instance procee-dings should not last more than 6 months. In prac-tice, the regular proceedings usually take muchlonger. If the decision has not been issued within6 months, the applicant can apply for a certifica-tion, which together with his temporary ID docu-ment entitles him to work legally in Poland for a de-fined period of time.

During the procedure and up to two months afterreceiving the final decision in asylum proceedings,an asylum seeker have a right to social assistanceand medical care. Social assistance can be gran-ted in or out of the refugee camp.

Generally an asylum procedure has five possibleoutcomes:− the applicant is granted refugee status− the applicant is granted subsidiary protection− the applicant is granted tolerated stay permit− the application is rejected and a decisioncontains a deportation order− the application is determined inadmissible andthe proceedings are discontinued (e.g. in case oflodging subsequent asylum application based onthe same circumstances)Asylum seekers, whose application was rejected ordiscontinued or who do not agree with a form ofprotection granted can appeal within 14 days fromreceiving the decision to the Council for Refugeesthrough the Head of the Office for Foreigners.

There is also an accelerated procedure in caseswhere the application is claimed “manifestly un-founded”. The application is claimed manifestlyunfounded if for instance an asylum seeker giveother reasons for their application than fear of per-secutions or serious injury or they come from asafe country or give a false statement, conceal in-formation or documents, submit another applica-tion on the basis of another’s personal data etc.Such an application is examined within 30 days,conducting an interview is not obligatory and anappeal of a negative decision should be lodged wi-thin 5 days.

When an asylum seeker has introduced an appealto the Council for Refugees, the Council can:− cancel the decision of the Head of the Office forForeigners and grant refugee status, subsidiaryprotection or a tolerated stay permit;

− cancel the decision of the Head of the Office forForeigners and order the Head of the Office tore-examine the case.

− affirm the decision of the Head of the Office forForeigners.

The decision of the Council for Refugees is final inthe administrative proceedings. If the applicationwas rejected, the person has 30 days to leave thecountry. One can lodge a complaint against thedecision of the Council for Refugees, within 30days to the Regional Administrative Court in War-saw. The complaint does not have a suspensiveeffect – an asylum seeker howevercan apply to thecourt to withhold the deportation order until theend of the procedure in the court. This Court isempowered to review the legality of the adminis-trative acts. Against the ruling of the court a cas-sation appeal to the Supreme Administrative Courtcan be lodged. The cassation complaint has to beprepared by a professional lawyer (e.g. advocate).

1.2. Provisions relatedto the application of theDublin Regulation

The Dublin Regulation is implemented directly andgenerally there are no additional provisions in thisregard. However, in the Polish context the provi-sions of national law regarding the detention ofasylum seekers are crucial to mention. This is be-cause asylum seekers are often placed in deten-tion after being transferred back to Poland.Under the law, detention of an asylum seeker is al-lowable only to:- establish their identity;- prevent abuse in proceedings for granting refu-gee status;

- prevent a threat to other people safety, health,life or property;

- protect the defence or safety of the state or sa-fety and public order.

An asylum seeker can also be detained when theyillegally cross or attempt to cross the border or en-

ter Poland or stay within the territory of Poland wi-thout permission (exept for 'directly coming' asy-lum seekers). So leaving Poland during the refugeestatus proceedings constitute a basis to place anasylum seeker in a detention centre on the ba-sis of the ruling of the court for 30-60 days oncethey are transferred back. This period can be pro-longed if within this time the asylum seeker recei-ved a decision, in which it is stated, that he/she isrefused refugee status, subsidiary protection or atolerated stay permit and will be expelled (depor-tation order). It can also be prolonged if an asylumseeker got a deportation order before leaving Po-land (e.g. his application was examined and re-jected in Poland before they left for another Euro-pean country).Moreover, if a person seeking international pro-tection does not apply for refugee status afterbeing transferred back, they can be placed in adetention centre as an irregular immigrant. Whenthey then decide to apply for asylum, their stay indetention centre will be prolonged by the court fora further 90 days. In any case, the maximumlength of detention cannot exceed one year.Detention of families with children is commonly ap-plied. Generally children in detention have no ac-cess to education. On the other hand, dividing fa-milies (placing only some members of the family indetention) is also a common practice.The detention due to illegal border crossing is notobligatory. It means that the court ruling shouldcontain the justification, why the detention was ap-plicable in a particular case. In practice, the courts'justifications are typically very poor, insufficientand lack the exact reasoning.

1.3. Statistics on asylumclaims in Poland

Poland receives most asylum requests from peo-ple with Russian nationality (most of them of Che-chen origin). In comparison to the year 2009, du-ring which 10,500 asylum seekers applied forrefugee status in Poland, the number of asylumseekers decreased to 6534 in 2010. The majorityof asylum seekers in 2010 were citizens of theRussian Federation (4795) and Georgia (1082).According to the statistics from UDSC (Office forForeigners, first instance authority in refugee sta-tus proceedings), in 2010 only 82 persons weregranted refugee status, 195 – subsidiary protec-tion and 196 – a tolerated stay permit. There were3906 negative decisions issued in the procee-dings and 6181 cases were discontinued (thisnumber covers all the decisions on discontinuanceof proceedings, no matter on what basis theywere issued – whether a person left to another EUcountry, voluntary returned to their country of ori-gin or gave the same information as in the previousapplication for refugee status).It stands out that an overwhelming majority ofthe proceedings result in not granting protectionto asylum seekers applying for refugee status inPoland.


1.4. Statistics on the DublinRegulation

As mentioned above, Poland is mainly a 'receiving',not 'sending' country. In 2010, 4863 applicationswere directed to Poland to take charge of or takeback an asylum seeker (so called 'in' procedures).The majority of the requests came from France,Germany, Belgium, Austria, Netherlands. Therewere 4602 positive decisions to such requests,but only 2131 persons were finally transferred.This data clearly shows inefficiency in conducting

the transfers on the basis of the Dublin Regulation.Accordingly, in 2009 there were 4946 applica-tions, 4665 positive decisions of Poland to takecharge of or take back an asylum seeker and only1987 persons were eventually transferred.In 2010 Poland directed 107 applications to otherEuropean countries to take charge of or take backan asylum seeker, as a result of which 61 personswere transferred. In 2009 Poland made 121 ap-plications and managed to transfer 87 persons.

Detailed statistics can be found below


DESTINATIONCOUNTRY

DUBLIN II (OUT) 2009

Germany Azerbaijan 1Nigeria 1Russia 2Vietnam 3Lebanon 2Syria 1Cameroon 2Uzbekistan 1India 1

Norway Iraq 2Nigeria 2Rsa/nigeria 1

Sweden Sudan 1Nigeria 2Russia 4

Austria Nigeria 17Togo 1Marocco 1India 1Russia 7

Spain Nigeria 1

France Russia 1Armenia 1Sri Lanka 1Georgia 1

Hungary Vietnam 2China 2

Italia Nigeria 4

Belgium Palestine 1Russia 14

Czech Republic Belarus 1Cameroon 1Uzbekistan 1

Slovakia Vietnam 1

Great Britain Iraq 1

Romania Russia 1

Total 87

Number of the applications made by Poland - 121

CITIZENSHIP OF THEPERSON TRANSFERRED

NUMBER OF PERSONSTRANSFERRED

DESTINATIONCOUNTRY

DUBLIN II (OUT) 2010

Germany Lebanon 3Turkey 2Vietnam 3Russia 3Nepal 1No Citizenship 2

Norway Egypt 1Iran 1Nigeria/ghana 1

Sweden Nigeria 1Armenia 1Iraq 1

Greece Palestine 1Syria 1Nigeria 1Iraq 1Afganistan 2No Citizenship 1

Austria Nigeria 2Kyrgyzstan 1Russia 5Cameroon 1Georgia 1

Spain Nigeria 1

France Russia 2Columbia 1Congo 1

Portugal Ghana 1

Italy Nigeria 3Algeria 2

Belgium Russia 8

Bulgaria Algeria 1Iraq 1

Hungary Iraq 1

Switzerland Sri Lanka 1

Finland Russia 1

Total 61

Number of the applications made by Poland - 107

CITIZENSHIP OF THEPERSON TRANSFERRED

NUMBER OF PERSONSTRANSFERRED


HFHR decided to have two contact persons wor-king on the project, but there was one personwho did not change throughout the whole project(HFHR lawyer). The division of the tasks betweenthe two responsible persons was changing.Apart from issuing the brochure on asylum pro-cedure and Dublin Regulation implementation inPoland, the main activity of the project was in-terviewing asylum seekers and fulfilling follow-up files on this basis. The majority of the asylumseekers received from the partner organizationcame from Austria. Usually, we proceeded insuch cases as follows:

− contact person from the Austrian organizationinvolved in the project (Asyl-in-not) informed usabout the approximate date of the transfer andsent by email the follow-up file of the asylumseeker with the first part completed;

− after receiving this information a contact personfrom HFHR applied both to the Border Guards(in case a person was detained) and to the Of-fice managing accommodation centres (in casea person was not detained) with a request forinformation regarding the place of stay;

− usually HFHR received an answer after onemonth. We contacted the person if their place ofstay was known. Apart from completing the fol-low-up file, HFHR contact person/persons gavegeneral legal assistance to the asylum seeker, asthe contact persons throughout the project werelawyers, whose main professional activity was

providing cost-free legal advice. Asylum see-kers received advice not only on issues regar-ding the Dublin Regulation, but also on the asy-lum procedure and integration aspects.

The project involved visits in detention centres,which was in some cases crucial to give legal aidto asylum seekers. These visits gave an oppor-tunity to meet asylum seekers, in most cases al-ready transferred back to Poland or those whotried to cross the border of Poland and clarifysome misconceptions held by asylum seekers re-garding the implementation of the Dublin Regu-lation. General information was also given to theasylum seekers on the HFHR lawyers' duty days,during which assistance is granted directly in theFoundation's office. The information mostly in-cluded explaining the criteria of determining theresponsible state for examining asylum applica-tion, also the Dublin procedure itself, possibilitiesto reunite with a family member in another coun-try and detention issues. It is important to stress,that Poland is mainly a country, to which personsare transferred back, so their Dublin procedure isfinished (there is no opportunity to appeal fromthe decision on transfer). That is why most of theasylum seekers who were assisted by HFHR orreceived appropriate information on Dublin pro-cedure, received them orally (in detention centresor during the duty hours of the lawyers). If therewas such a need, the lawyer prepared officialcorrespondence regarding the Dublin Regulationissues, mostly family reunification back in thetransferring country.Since there were very few application directedfrom Poland to other countries to accept theresponsibility for asylum applications, HFHR didnot direct any asylum seekers to a partnerorganization.


CATEGORY






NUMBER

223

212

0

332

28

Statistics until February 2011 :

3.Analysis of theapplication of Dublinat national level(case studies)

3.1. Return to Greece underDublin procedure:

As a result of the ECtHR ruling in the M.S.S.case, Polish authorities officially suspended trans-fers to Greece under the Dublin Regulation. Be-fore the ruling, in 2010, 7 asylum seekers weretransferred to Greece and in 2009 none.

3.2. Shortcomingsin the application of the Dublinregulation

Throughout the project, HFHR worked on caseswhich showed some shortcomings of the appli-cation of the Dublin Regulation by MemberStates. One of the shortcomings concerned thetermination of the responsibility of a country toexamine an asylum claim. The details of a parti-cular case involving this issue is presented below.

� Case 1A case of Chechen woman, who applied for re-fugee status in Poland on 12.12.2007. On13.02.2008 she voluntarily went back to hercountry of origin, the Russian Federation. On23.02.2009 she went directly to Norway with hertwo small children and applied for refugee statusthere. Norwegian authorities applied to Poland totake her back under Article 16(1)e of the Dublinregulation. Poland accepted the request on25.03.2009, although its responsibility ceased,since the woman had spent more than one yearin her country of origin. The decision on transferwas made on 10.06.2009 and on 22.09.2009 thewoman was transferred to Poland.

The woman wanted to stay in Norway. She wasaware of the Dublin regulation criteria for deter-mining the responsible state and therefore onceshe reached Poland, she kept asking the DublinDepartment to apply to Norway to accept theresponsibility for her asylum application.

Polish Dublin Department applied to Norwe-gian authorities on 24.09.2009 (two days afterMs Khedi was transferred), also on 23.10.2009and on 28.10.2009. On 28.10.2009 Norwegianauthorities answered, that since Poland accep-ted the request, Poland is the responsible Mem-ber State.Another controversial issue in this case was thatonce Ms Khedi and her children reached Poland,she did not want to apply for asylum, becauseshe wanted to go back to Norway. That is why on25.09.2009 the woman was detained with her

small children as an irregular migrant (due to herillegal stay) for 60 days. On 24 November 2009she applied for refugee status while in detention,which constituted a basis for prolonging her stayfor another 90 days. She was released on 22 Fe-bruary 2010 r. because of her bad mental healthcondition – she tried to commit suicide and wastaken to the hospital.

In February 2011 the woman and her two chil-dren were granted refugee status in Poland.

3.3. Family unity

As Poland is mainly a receiving country in theDublin procedure, Dublin cases that HFHR hand-led mostly concerned reuniting the family in ano-ther European country and shortfalls in protectionof family unity.

One of the main areas of concern we noticedwhile handling particular cases was the diffe-rences in the outcomes of asylum procedures inEuropean countries. In some cases, an asylumseeker was granted protection in a particularcountry, while a member of his close family didnot, although they applied on the basis of thesame or very similar circumstances. One of theconsequences is the fact that families are beingdivided, because of the differences in asylum po-licy, as in two cases described below. Also, dueto the same reason, asylum seekers keep ap-plying in other countries for international protec-tion after their application is rejected in one ofthem.

Shortfalls in the protection of family unity may bea result of the lack of relevant information on fa-mily members in the request to take charge of ortake back an asylum seeker. As Polish authoritiesinformed us with regard to the second case pre-sented below, they received an application basedon Eurodac hit, they accepted the responsibilityfor examining the asylum claim and after thetransfer it turned out, that the asylum seekerconcerned had a family member in the sendingcountry.

� Case 2The case of a Chechen woman, Ms K, who cameto Poland with two small children and applied forrefugee status on 28.02.2008. Afterwards herhusband Mr S went to Norway and applied for re-fugee status there. He was granted subsidiaryprotection in the first instance proceedings andhis advocate appealed the decision requestingMr S be granted refugee status. The wife andchildren, after receiving negative decision with adeportation order on 10.06.2009, joined him inNorway.

Norway sent the request to Poland for takingback, giving information in the request, that Mr S


was granted a stay permit on humanitariangrounds. Poland accepted the responsibility. InApril 2010, after transferring them to Poland,Ms K and the children were placed in a detentioncentre. She applied for refugee status again, theImmigration Office did not agree to uphold thedecision on deportation previously issued.

The Dublin Department re-applied to the Nor-wegian authorities to accept the wife and childrenof Mr S, but Norway refused to apply article 7, ar-ticle 8 or article 15 of the Dublin regulation.

Eventually, in August 2010, Mr S was granted re-fugee status by the second instance authoritiesin Norway. The Dublin Department in Poland ap-plied again to Norway to take charge of Ms K andher children. Norway again refused, stating thatunder article 5(2), the Member State responsiblein accordance with the criteria shall be determi-ned on the basis of the situation obtaining whenthe asylum seeker first lodged his applicationwith a Member State. And the application ofMs K was first lodged on 28.02.2008 in Polandand at that time Mr S did not apply for asylum inNorway. They also brought up, that on26.02.2009 Norway applied to Poland under ar-ticle 8 to take charge of Mr S, but he did not givehis consent to be reunited with his family in Po-land and that is why Dublin regulation could notbe applied for family reunification.

The main issue here was that Mr S obtained sub-sidiary protection and then refugee status in Nor-way, while Ms K had a negative decision with adeportation order, was detained and her secondapplication was discontinued because she gaveno new circumstances in her claim. At that timeshe could be deported at any moment. Therewas also no possibility to apply for family reunifi-cation through the Embassy, because Ms K wasin a detention centre and did not have a resi-dence permit in Poland.

HFHR maintained contact in this case with theNorwegian Helsinki Committee and also co-wor-ked with Polish NGO Foundation Institute for theRule of Law in Lublin. We prepared many officialcorrespondence to the authorities of the first andsecond instance responsible for Ms K's asylumcase, stating that nevertheless Norway was res-ponsible for the case for Ms K and her children –once Poland accepted the responsibility to exa-mine their case, it is Poland’s responsibility tokeep the family together. If Norway authoritiesclaimed, that there is a well-founded risk of per-secution in the case of Mr S and his wife and chil-dren are his closest family (i.e. members of thesame social group) it is unjustified to refuse themany form of protection and order them to leavethe country.In our opinion, the case is significant not only withregard to the right to respect for family life, butalso durable detention of children and respect gi-ven to positive decisions on international protec-

tion issued by another European country.After receiving a final decision on discontinuationof her second proceedings, Ms K applied againfor refugee status, asking to withhold the depor-tation to Russia. There was an application for in-terim measures lodged to ECHR and once theOffice for Foreigners got to know about it, the de-cision on deportation was upheld before ECHRmade a decision in this regard.

In February 2011, after 10 months of detention,in her third refugee status proceedings, Ms Kand her children got subsidiary protection in Po-land. Surprisingly, it was not based directly on thesituation of her husband and the fact of grantinghim refugee status in Norway (of which Polish au-thorities knew already during the second asylumproceedings of Ms K), but it was justified also byother circumstances related to Ms K’s sister.

� Case 3A case of Mr V, who was transferred from Austriato Poland. Mr V. got married under Muslim law inAustria with a Chechen woman, who has beengranted refugee status. They have a child, whichwas born in June 2010. Despite these facts, hewas transferred back to Poland. According toPolish Dublin Department, Austria in their appli-cation for taking back did not mention the factthat he has a family there, so Poland acceptedthe application.Since the wife of Mr V. and Mr V. did not have thedocuments required to get married in Poland,they married under Russian civil law in Chechnyaby their representatives and in the presence ofwitnesses from their families (with special per-mission from the court received for this purpose).

HFHR lawyer applied to the Dublin department inPoland to lodge an application under Dublin Re-gulation to Austria to take responsibility for theasylum claim. In Article 7 it is stressed, that it shallapply regardless of the fact whether the familywas previously formed in the country of origin.However, Austria did not agree to reunite the fa-mily under the Dublin Regulation, also under thehumanitarian clause.

3.4. Unaccompanied minors

HFHR worked on several cases of Afghan unac-companied minors, who came to Poland throughGreece. Before they applied for asylum, theywere considered irregular migrants and were pla-ced in detention for 90 days. Polish law allows fordetention of unaccompanied minors, if they are ir-regular migrants. If they are asylum seekers, theyshould be placed in a children's home in Warsaw.The Afghan minors applied for refugee status indetention and were placed in such institution.Poland accepted the responsibility to examinetheir asylum application under article 6 of theDublin Regulation.


3.5. Expulsion and detentionof Dublin returnees

The last available data on detention of Dublin re-turnees shows, that out of 183 asylum seekerstransferred to Poland in December 2009, 83 wereplaced in a detention centre. In January 2011 outof 186 persons transferred 49 were detained andin February 2011 out of 183 persons 51 were pla-ced in detention after being transferred to Poland.

As was mentioned beforehand, the basis for thedetention is in most cases illegal border crossing.Asylum seeker concerned will be then placed indetention for maximum 60 days. This period canbe prolonged if within this time asylum seeker re-ceived a decision, in which it is stated, that theyare refused refugee status, subsidiary protectionor a tolerated stay permit and will be expelled (de-portation order). If not, they will be released, pla-ced in an open refugee centre and wait for a de-cision there.

HFHR handled a lot of cases of asylum seekers,who received negative decision with deportationorder before they left Poland and went to anotherEuropean country. In such situations, upon theirreturn, they were mostly placed in detention as ir-regular migrants, for 90 days. Usually they deci-ded to apply again for refugee status. Under thelaw, a subsequent application does not automa-tically withhold the decision on deportation pre-viously issued. The Head of the Office for Forei-gners can withhold such decision, but HFHRlawyers' experience shows that it hardly everhappens, even in justifiable circumstances. Thesubsequent application is often claimed inad-missible and the proceedings are discontinued,even if an asylum seeker managed to presentnew circumstances or new evidence supportingtheir asylum claim. As the overwhelming majorityof the cases of asylum seekers met during the vi-sits in detention centres showed, the courts keepprolonging the detention for another 90 days anddo not provide individualized reasoning in their ru-lings. Ensuring the effectiveness of the procee-dings on expulsion on the basis of enforceabledecision constitute a basis for detention in thesecases. This situation is controversial when theseasylum seekers believe their first application wasnot examined properly.

Illegal border crossing is a small offense, butwhen committed with the use of force, threat orin cooperation with other persons, it is conside-red a penal offense. Conviction for such offensecommitted wilfully results in the lack of possibilityto enter the integration program. This is an addi-tional consequence for Dublin returnees.


4.1. Implementationof the project:

� Problems:While implementing the share of our work, wefound it difficult to contact asylum-seekers whohad just arrived to Poland. Especially when theyare detained and kept in the special zone for fo-reigners at the airport until there is a court hearingand until they are transferred to the particulardetention centre. At this time, the access turnedout to be very restricted and that is when the asy-lum-seeker needs support and information. Therehave been cases when the Border Guard couldnot provide such contact due to “practical rea-sons”.

Mainly the contact at the stage of arrival waspossible, if the asylum seeker concerned had amobile phone and could call one of the contactpersons in HFHR.

Some of the asylum seekers transferred fromAustria to Poland and whose follow-up filesHFHR obtained, managed to return to Austria orapplied for voluntary return to their home coun-tries. That is why some of the follow-up filescould not have been filled out.

Another problem of an administrative nature wasreceiving information on the transferred persons'place of stay, if they did not manage to contactHFHR themselves. When there were many asy-lum-seekers coming gradually in small groupsfrom Austria to Poland, it took more and moretime for the Border Guards and the main officemanaging accommodation centres to respond toour questions about the place of residence of theasylum seekers concerned. We have not receivedan answer to some of our requests if there weretoo many. At the same time the authorities refuseto give any information over the phone, so thewhole process of getting to know the place ofstay of an asylum seeker we searched for wassometimes very long.

� Benefits:

The main benefit of the project is improving awa-reness of the Dublin Regulation issues and pro-viding asylum seekers with information on theDublin Regulation and on asylum procedures inother countries by distributing the informationbrochure in various languages.

Another benefit is providing continuous legal andsocial assistance to asylum seekers being trans-ferred. Despite the problems mentioned above,we managed to contact many asylum seekersshortly after they were transferred back. No mat-


ter detained or not, they were able to contact thepersons responsible for the project in HFHR andreceive advice and aid needed.

The project allowed the exchange of informationon particular cases and on general Dublin Regu-lation issues with organizations dealing with re-fugee issues in other countries. This was espe-cially important for some cases of an internationalnature. Cooperation helped in gathering infor-mation on the law and practice of a particularState with regard to asylum procedure or familyreunification issues. Creation of the network hel-ped in exchanging good and bad practice regar-ding the Dublin procedure and related aspects ofthe asylum process.

4.2. Implementationof the Dublin regulation

� Problems:The fundamental problem we noticed in the be-ginning of the project during conversations withthe asylum seekers is the lack of awareness re-garding the main aspects of the Dublin regulationamong them. Asylum seekers transferred back toPoland very often believed that they had been ac-cepted by another EU country (they were provi-ded with accommodation, social and medicalassistance), but then Poland applied for their re-turn. In such situations they were confused, whenthey were not granted any form of protectionand were issued a deportation order.

The only solution to prevent such misunderstan-dings is to inform the asylum seekers about theDublin procedure and the criteria of determiningthe responsible state for examining their asylumapplication, so that the asylum seekers knowwhy they are transferred back to the particularcountry and also why they should not go to ano-ther country, because they will be transferredback.

Another very important issue regarding theimplementation of the Dublin Regulation is thatmany asylum seekers affected by the Dublin pro-cedure are not being granted international pro-tection. The reason is that asylum seekers, whotried to apply for asylum in another country andthen were transferred back to Poland are auto-matically treated by authorities rather as an eco-nomical migrant than a person in need of inter-national protection. The main argument raised innegative decisions is that the asylum seeker triedto improve their economical status instead ofbeing satisfied by the protection guaranteed bythe first safe country they entered.

Another problem we noticed while implementingthe project is that the transferring countries donot pass all the necessary documents, includingpassports and medical documents. The lack ofpassports leads to prolonging the voluntary return

procedure if the asylum seeker decides to applyfor such. While visiting the detention centres du-ring the implementation phase of the project, itturned out the asylum seekers’ period of stay indetention were often being prolonged for monthsbecause of the process of obtaining documentsfrom the transferring country, which were crucialfor responsible actors to organize a voluntary re-turn. The lack of medical documents on the otherhand often made it impossible to provide conti-nuous medical care to the asylum seekers.

4.3. Recommendationsat national level:

Information brochures published within the pro-ject should be widely distributed. The websiteserves a useful purpose in this regard. This wouldallow us to provide asylum seekers with informa-tion on Dublin procedure rules before they decideto leave Poland and go to another country. Forthis reason the brochures should be also distri-buted on border checkpoints, through which asy-lum seekers enter Poland. Full awareness of theconsequences (transferring back, detention)would help to decrease the number of asylumseekers moving through Poland to another coun-try to apply for asylum.

There is a need for further legislation on detentionprovisions in order to create clear rules of deten-tion for illegal border crossing and defining an at-tempt to cross the border illegally.

Being affected by the Dublin Regulation shouldnot constitute a basis to classify an asylum see-ker as an economical migrant. Often leavingPoland without waiting for an asylum procee-dings outcome is motivated by the will to reunitewith other family members abroad so it shouldnot in any case be automatically considered areason for issuing a negative decision in asylumproceedings. On the other hand, leaving Polandafter receiving a negative decision is often moti-vated by a will to seek protection elsewhere, be-cause of the shortages of protection offered byPoland.



Organization: JesuitRefugee Service


Romanian Immigration Office (RIO), within theMinistry of Administration and Interior, is the res-ponsible authority who applies the asylum andaliens legislation in Romania. Dublin Regulation isapplied by the Romanian Immigration Office –the Directorate for Asylum and Integration (ORI-DAI), through its specialized department: the Du-blin and EURODAC department.The Dublin Regulation was transposed into na-tional legislation in 2006, before accessing theEU. The application of the provisions related toDublin Regulation began in 2007.

The Dublin Regulation was not completely trans-posed into national legislation. Even if the Regu-lation can be directly applied, the fact that it wasnot completely transposed makes judges reluc-tant to apply the provisions which were not trans-posed. Moreover, the lawyers and the asylum-seekers do not know all the provisions and cannotmake use of all the rights foreseen by the Regu-lation. Due to all the aspects mentioned above,the national authorities can apply as they considerthe provisions of the Dublin Regulation, especiallythe ones in favour of the asylum-seekers as thecriteria for the determination of the responsiblestate and the humanitarian clause. Even if duringthe first period of application of the procedure, thepersons who had to be transferred were not pla-ced in detention, this practice changed during2009. Since then, persons due for transfer areplaced in detention for different periods (from se-veral days to several weeks) of time in order to betransferred to the responsible state.

In 2009, the Dublin transfers to Greece were sus-pended by the competent court (local Court) inthree cases. No transfer to Greece was decidedby RIO-DAI after that even though no official po-sition was published. In March 2011, RIO-DAI pu-blished the official position of the Romanian Go-vernment who suspended all Dublin transfers toGreece and stated that the Romanian authoritiesgranted access to the Romanian asylum proce-dure in all such cases.

In the cases of persons whose first asylum pro-cedure finished while they absconded withouthaving an interview for the determination of theirrefugee status, if transferred from another stateback to Romania, they are treated as illegal aliensand taken in detention in order to be removedfrom the territory. There is the risk that those per-sons are returned to the country of origin wi-thout having their asylum claim assessed.

In order to convince the authorities to grant ac-cess to a new asylum application, and thechance for an effective asylum procedure, JRSRomania has counselled and assisted in differentways such cases: administrative requests ad-dressed to RIO, advocacy, appointment of la-wyers for legal representation in court, third partyintervention representing the JRS position on ef-fective access to asylum procedure.


JRS Romania has implemented the project withthe help of JRS Romania legal counsellors whoprovided legal assistance in detention centresand at Pedro Arrupe open centre. The identifica-tion and assistance of the cases was made incollaboration with lawyers and NGO’s who assistasylum and migration related cases.

The cases assisted were identified during themonitoring visits, in collaboration with lawyersand partner NGO’s and sometimes at RIO notifi-cation.

The national meetings were organised in threemain locations: Bucharest, Arad and Timisoaradue to the high frequency of cases assisted inthose regions.

A meeting with lawyers, NGO’s and UNHCR wasorganised in Bucharest in order to inform andstrengthen the collaboration with them on theassistance of the cases identified.Many of the asylum-seekers who cross the bor-der to Hungary and are returned under Dublin


procedure pass through Timisoara and are sentback to an open centre or to a detention centre(like the closed centre in Arad).Two separatemeetings were organised in Timisoara and Arad.In Timisoara, the participants were local courtjudges dealing with Dublin cases and RIO – DAIwho runs an open centre for asylum-seekers.

In Arad, JRS organised a national meeting withrepresentatives of the courts dealing with deten-

tion and migration issues (Court of Appeal), pro-secutor, RIO in order to inform them about thepractice developed within the project and in or-der to advocate and promote the effective accessto the asylum procedure.

One of the most efficient tools used within theproject was the collaboration with project part-ners and with other NGO’s assisting asylum-see-kers in the Dublin countries.

3. Analysis of theapplication of Dublinat national level(Case studies)

The Dublin Regulation was not completely trans-posed into national legislation. Amendments ofthe asylum legislation are necessary in order toharmonize it with the EU acquis and in order toguarantee the just application of the Dublin Re-gulation.

The majority of the cases assisted by JRS Ro-mania were asylum-seekers who were transferredto Romania and taken to detention centres be-cause their asylum procedure in Romania endedwhen they absconded. Due to the fact that na-tional asylum legislation requires for asylum-see-kers to be present at each administrative and ju-dicial stage of the procedure, as well as that theycannot be represented but only assisted in Court,it happens that in cases when they abscond thefiles might be closed since they are not presentand the procedural terms are not respected.

In the case of an asylum-seeker from Afghanis-tan, returned from Germany under the DublinRegulation and placed in detention, a request foraccess to a new asylum procedure was draftedand submitted. RIO rejected the request and inaddition did not grant access to the territory.Following an appeal submitted by the claimant

the Local Court granted access to the territoryuntil the end of the asylum procedure.

In the case of an asylum-seeker from Afghanis-tan, returned from Belgium under Dublin Regu-lation, whose age was under 18 (according to acopy of the birth certificate) but was not confir-med by a medico-legal expertise from UnitedKingdom, he was placed in detention despite therecommendation of UNHCR Romania and JRS.After six months of detention he was releasedand accommodated at JRS open centre (PedroArrupe). A request for access to a new asylumprocedure was submitted but RIO did not grantaccess to the territory and to the asylum proce-dure. Appeal was submitted in due time.

Exception: In the case of an asylum-seeker fromAfghanistan, returned from Belgium under Du-blin Regulation, he was taken into detention be-cause his asylum-procedure ended as he didnot follow the procedural terms. Due to the col-laboration with JRS Belgium and his appointedlawyer, the Tribunal reconsidered the recoursesubmitted by the asylum-seeker since he hadwell founded reasons for not being present: hewas placed in detention in Belgium awaiting re-turn. The asylum-seeker was granted a form ofprotection.

The humanitarian clause, the family and com-munity connection are not transposed in the Ro-manian legislation and the asylum-seekers (oftenthe lawyers and the judges too) do not know

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what provisions are favourable and entitle them torejoin their family or community.

In the case of an Afghan asylum-seeker, trans-ferred from France under Dublin Regulation, hewas taken into detention upon return because hisasylum procedure ended when he absconded.JRS Romania collaborated with CIMADE (France)and his appointed lawyer in Romania. The personwas suffering from PTSD attested by the medicalreports in France and by the psychologist at thedetention centre. He was released after 30 daysfollowing the exception of unconstitutionality sub-mitted, which has a suspenseful effect on the de-tention order. He was accommodated at the JRSopen centre (Pedro Arrupe) where he received le-gal and social counselling and medical assis-tance. As he was tolerated on the Romanian ter-ritory, he had to renew his visa on a monthlybasis. He was seized by RIO – Directorate for Mi-gration and taken to the detention centre in orderto be returned to his country of origin. Due to thefact that he was taken into detention on a Fridaylate in the afternoon and had no possibility tocontact anybody in order to contest the detentionorder, he was returned the following Monday wi-thout access to legal counselling and effective re-medy. His brother who was recognised as a re-fugee in the United Kingdom had sent him photosand documents in order to submit a new asylumapplication but it was too late.

Even if at the beginning of the application of theDublin Regulation, the persons who had to betransferred were not placed in detention, thepractice has changed since 2009. In some cases,the asylum-seekers were taken into detention inorder to be transferred to another country.

The fact that the appeal against a transfer deci-sion does not have a suspensive effect may leadto situations in which the persons taken into de-tention are transferred even if they have submit-ted an appeal and their file is pending at the re-levant court. Moreover, the time allowed tosubmit the appeal is 2 days and if the person istaken into detention when the transfer decision iscommunicated, there is no effective possibility tohave access to legal counselling.

According to Romanian asylum legislation, if thetransfer was carried out and the court upholdsthe appeal and cancels the transfer order, the ar-rangements for the readmission of the personhave to be done by RIO.

Effective access to the asylum procedure is notguaranteed for all asylum-seekers and the admi-nistrative and judicial practice is not uniform. Insome cases, the fact that there was no interviewwhen determining the need for refugee statuswas appreciated as a reason for granting accessto a new asylum procedure. In other similar casesthe access to a new asylum procedure was re-jected. There were even cases when persons

were transferred from one country to another wi-thout ever having an interview or access to legalcounselling and were finally transferred from theresponsible state awaiting the return to theircountry of origin.

In the case of an Afghan asylum-seeker, returnedin Romania according to Dublin Regulation, hewas taken into detention because his procedurewas finished. He submitted a request for accessto a new asylum procedure and RIO-DAI grantedhim the access reasoning that he had not had arefugee status interview. He was released fromthe centre and accommodated in a receptioncentre for asylum-seekers and refugees.

The practice was different in the case of anotherAfghan asylum-seeker returned from Denmarkto Romania, under Dublin Regulation, and takeninto detention as his asylum procedure finished.He submitted a request for access to a new asy-lum procedure, as he had not had an interview inthe first procedure, but his request was rejected.

In the case of another Afghan asylum-seekertransferred to Romania, under Dublin Regulation,he stated that he had passed several EU coun-tries where he had been taken into detention wi-thout ever having an interview about the reasonsfor having left his country of origin. After havingasked for asylum in Romania he left the territory,went to Austria via Hungary and asked again forasylum. As he left Romania before having an in-terview and his asylum procedure was suspen-ded in Austria, awaiting the determination of theresponsible state, when he was returned to Ro-mania his asylum procedure had been finishedwithout having a fair and efficient procedure.


There is a great need for information and legalcounselling among asylum-seekers before beingtransferred and even more afterwards.

There is a need for information sessions and trai-ning for judges, lawyers and Immigration Officeofficers.

The Dublin Regulation has been applied since2007 in Romania and the legislative aspects donot always correspond with the practice..



Organization: Comisiónespañola de ayuda al refugiado

1. National context:legislation on asylumand Dublin - Fieldobservations and recentdevelopments

According to asylum law every foreigner (not ci-tizen of an EU country) can apply for asylum, ba-sed on Spanish and international law. The asylumlaw, Law 12/2009 of October 30 rules the Rightto Seek Asylum and the Subsidiary Protection(Substitutes Law 5/1984 of March 26 on theRight of Asylum and the Refugee Status, alsomodified by Law 9/1994 of 19 of May), esta-blishes that the national authority mainly respon-sible for asylum issues is the Office of Asylum andRefuge (OAR is its acronym in Spanish). It de-pends on the General Sub-Direction of Asylum ofthe Interior Ministry and is in charge of registeringthe asylum applications, interviewing asylum see-kers and preparing cases before the “Inter-mi-nisterial Commission” or Eligibility Commission.OAR also refers asylum seekers and refugees torefugee reception centres (CARs is the acronymin Spanish). If the person submits the applicationin the provinces the police authorities registerthe cases, collect the personal information andany documents or pieces of evidence that theperson may have, contact legal assistance for theinterview and submit the cases to the central au-thority on asylum, OAR for the evaluation of thecase.

The regulation that will implement the law is pen-ding approval, thus the previous regulation is stilltemporarily in use, as long as it does not contra-dict the new law and in case of contradiction, thelaw is applied directly. Now is a period of read-justment, while institutions and other stakehol-ders get used to the new law and the new regu-lation is approved.

The different forms of protection existing inSpain are Conventional asylum, Subsidiaryprotection and Special protection for huma-nitarian reasons.The Spanish Government amended thecontent of the Subsidiary protection. Withthe new law the benefits of the subsidiary pro-tection status are similar to those of refugee sta-tus. According to article 4 of the law, it is given

to persons that do not fulfil the requirements forrefugee status, but about whom there are suffi-cient elements to consider that the person is ata real risk of suffering grave damages to his/ herlife, personal integrity or grave threats provokedby an armed conflict or generalized violence.

According to statistical data published by theAsylum & Refuge Office with regard to 2010. InSpain there were 2,738 asylum seekers: 2,155applied for asylum inside the territory, 300 at theBorders, 213 in CIES (Detention Centres for Mi-grants) and 70 in Spanish Embassies.

According to recent changes in legislation, ma-nifestly unfounded asylum claims can now berejected at the preliminary assessment phase ofthe asylum procedure (resulting in a significantlylarger discretion for authorities to reject asylumclaims without any on-merit assessment and withlimited possibilities of seeking legal remedyagainst such decisions.) It means that the rate ofasylum claims admitted rose to 2,174 but unfa-vourable decisions from the Inter-ministerial Eli-gibility Commission on Asylum and Refuge roseto 1,816 granting refugee status to just 260 asy-lum seekers, Subsidiary Protection to 351 and aresidence permit for humanitarian reasons to 20persons.

In 2010 we had 75 sending decisions under Du-blin II Regulation.

� Dublin regulation

In Spain the Dublin II regulation is an admissibi-lity procedure. The OAR functionary or the policeasks identity data and the travel route. If the asy-lum seeker is in the territory they will be docu-mented and then admission to the procedurewill be taken within two months. If the Asylumand Refuge Office deny access to the procedurethe asylum seeker will be asked to leave thecountry. If they don´t comply with this they will re-main illegally but not detained and not returned totheir country.

An asylum seeker under Dublin who submit theapplication at the borther will be usually admittedto enter the country due to the accelerated dead-lines. The asylum seeker will not be detained,even if they are at the border.


The asylum seeker may not be detained duringthe decision-making process. Usually they aresent back to the first European country or ac-cepted to enter into the territory to decide upontheir admissibility to the procedure.

If they are inside the territory when the transfer re-solution is ruled they will be asked to leave thecountry. If they stay, they will live in the country wi-thout permission or a working permit and thepolice can initiate an expulsion procedure whichlasts for 6 months until last decision, which canbe appealed before the Courts. In these casesthey can be detained in an Alien Detention Cen-tre until they can be sent back to their country(maximum time for detention is two months).

Spanish legislation allows for suspendingthe implementation of the decision in an in-dividual case, the National Appeal Court candecide to suspend the transfer until they rule adecision against the transfer, in cases where anappeal has been lodged.

There are no special provisions against the trans-fer of vulnerable persons or persons affected bya psychological or a physical disease but if theperson has dependant relatives in Spain or is inconditions of vulnerability they are usually admit-ted into the procedure.

When the asylum seeker is transferred in Spain(responsible state for examining the asylum ap-plication) the application is dealt with throughOAR Dublin Unit and the person is admitted tothe procedure as any other asylum seeker. Theperson is not detained upon arrival. They aresent to the emergency reception facilities run by

the Red Cross upon arrival to Spain. There theyreceive information about the procedure in Spain(first asylum application or the continuation ofthe asylum procedure). They are identified withthe red card as asylum seekers and have accessto reception facilities.

Take back: the person is not admitted to the asy-lum procedure and he/she is invited to go to theresponsible country of the asylum claim. Some-times the person is given a plane ticket. He/sheis not detained to force them to leave, but re-mains illegal.

When the transferred asylum seeker arrives inSpain he/she is treated in terms of reception asany other asylum seeker. The person is not de-tained. Family unity will be a criteria for the ac-commodation facilities and the province chosen.

The steps to be undertaken by the asylum see-ker depend on the following:

- If he/she has already applied for asylum in thecountry. The process will continue as it started.

- If he/she hasn’t applied yet for asylum in thecountry. The person will decide whether to ap-ply for asylum or not. Otherwise he/she will besubmitted to the regular foreigners’ law. InMadrid they are informed of the asylum pro-cess in Spain, and they will be interviewed ifthey choose to apply. The rest of the procedurecontinues as with any other asylum seeker.

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CEAR had two different contact persons workingon the project. The first from December 2009 toApril 2010 because she left CEAR and the se-cond from April 2010 up to now.Apart from issuing the brochure on asylum pro-cedure and Dublin Regulation implementation inSpain, the main activity of the project was inter-viewing asylum seekers and processing follow-up files on this basis. The lawyers in the differentprovinces in Spain also filled in the follow-up filesand shared all information regarding asylum see-kers under the Dublin regulation with the coordi-nator of the project in Spain.According to the Asylum and Refuge Office inSpain we just have information about sending butnot receiving decisions. Most of the asylum see-kers under the Dublin regulation are not forced toreturn to another country so they stay in Spain asillegal migrants until they can apply for a resi-dence permit (three years living in Spain conti-nuously).

We had just one case in March 2011 where thePolice asked the asylum seeker (Palestinian fromSyria) if we will comply with the Asylum Office re-solution to be sent back to Norway as the flightticket is expensive and they did not want to losethe money.

The asylum seeker did not want to go back toNorway but it was difficult to decide if we shouldtell the truth to the Police as he is living in an ac-commodation flat managed by CEAR so the Po-lice can find him there.

3. Analysis of theapplication of Dublin atnational level (casestudies)

Spain is mainly a receiving country and not asending country.- Spain had already implemented the DublinConvention as well as an evaluation of the sys-tem carried out by the European Commission,the UNHCR, ECRE, Amnesty International andothers.

- In Spain we did not find cases of asylum-see-kers transferred without respecting the right tobe informed on the procedure before removal.

DETENTIONi. Asylum-seekers transferred to Spain under theDublin procedure (from countries such as Belgium,France, Norway) have reported that they have beendetained in the sending countries even when – af-ter a transfer decision had been taken – they ac-tually wanted to go back to Spain. For example, anasylum-seeker waiting to be transferred to Spainwas detained for more than two months in Belgiumafter having declared to the police, prior to histransfer, his desire to go back to Spain.

ii. Good practices: Detention is not used, even tosolve the problem of the absconding of asylum-seekers subject to a transfer decision in Spain. InSpain, detention is never applied, neither prior totransfer nor if a negative answer from the coun-try in question is received.

FAMILY UNITYi. Concerning the concept of “family”, in Spainstable unmarried relationships are recognised,which is good practice. In Spain, it is even suffi-cient to provide – in the absence of a legal do-cument – an official declaration of the concernedpartners to demonstrate their relationship.ii. There is not a procedure or an establishedprotocol for tracing family members in Spain, norin other European countries, and the authoritiesdo not support asylum seekers on this matter ina concrete way. Sometimes NGOs can give theirsupport in tracing family members, but it is not aregular procedure.iii. The Asylum and Refuge Office declares thatit immediately contacts the other Member Statesif a minor or other asylum seekers have declaredthe presence of family members in Europe.

SOVEREIGNITY CLAUSEi. Spain has declared that the sovereignty clauseis applied on rare occasions, for vulnerable peo-ple or to guarantee the family unit. In 2009, theAsylum and Refuge Office (OAR) applied the so-vereignty clause in the case of a pregnant womandependent on her partner with whom she main-tained an unmarried relationship. The partner andfather of the child was a legal resident with regu-lar employment in Spain. This case should beconsidered as a good practice.We do not know another case, nor does theUNHCR in Spain.According to Asylum and Refuge Office infor-mation Spain does not apply the sovereigntyclause as asylum seekers will not be forced to goto the other EU member state as the Police hasthe mandate to notify them the resolution to besent back but they cannot detain or force themto comply with this resolution. In these cases, theasylum seeker will not have access to internatio-nal protection as their asylum application is notadmitted when applying Dublin II Regulation. Af-ter 6 months that can be extended to 18 monthsthe asylum seeker can apply for asylum again inSpain and Dublin II Regulation cannot be appliedagain. During this period, from 6 to 18 monthsthe asylum seeker will be considered as illegal mi-grant in Spain.

HUMANITARIAN CLAUSEi. In Spain, the clause has not been used re-cently. No case has met the relevant criteria. Ar-ticle 15 is applied on the basis of the criteria es-tablished in the Dublin II Regulation. In thesecases the Asylum and Refuge Office apply the


same criteria as for the Sovereignty clause. Theproblem in these cases is that there is not a spe-cial procedure for vulnerable people within theAsylum System in Spain, or if the Dublin II Regu-lation is applied. There are not criteria to definewhether an asylum seeker has to be consideredin a vulnerable situation. For example, Spain ac-cepts to receive or send pregnant women.The Asylum and Refuge Office have explained toCEAR that when they consider the asylum see-ker is in a vulnerable situation they do not startthe Dublin Procedure.According to our data and experience and the in-formation UNHCR in Madrid gave us, the Asylumand Refuge Office applies the Dublin II Regulationautomatically when they register the asylum claimas they have to pass the application through theDublin filter (there´s not a specific application forDublin cases but in each application there arespecific questions regarding Dublin II Regulation,called the Dublin Filter). Within the next 8 daysfrom the registration of the application the Asylumand Refuge Office verifies the information withEurodac. If they apply Dublin II Regulation the ap-plication is not admitted and they must notify it tothe asylum seeker within 1 month.

VULNERABLE ASYLUM-SEEKERSi. UNACCOMPANIED MINORS. In Spain, theAsylum and Refuge Office (OAR) declares that theage assessment is provided by the prosecutors’office. In reality practices vary in the different au-tonomous communities, but the “Greulich andPyle” studies, sexual characteristics and dentalexamination are frequently used. Nevertheless,the refusal to submit to a medical examinationdoes not prevent the authorities taking a decisionon the application for international protection.1. Bad Practices: In Spain there is no parti-cular procedure for vulnerable Dubliners, evenif Dublin Units declare that they receive the as-sistance needed. According to the new Law onasylum and subsidiary protection – Law12/2009 of 30th October 2009 – there is a spe-cific rule for minors and for other vulnerablegroups but no particular procedure for vulne-rable Dubliners is included.2. According to the information provided by theAsylum and Refuge Office, Spain doesn´t applyDublin II Regulation to Minors so Spain refusessending decisions from other EU members.

TRANSFERSi. Bad Practices:1. In Spain, the admissibility procedure is ex-tended by one month for Dublin cases. This isnotified to the applicant but notification doesnot include information about the reasons whythe extension is made. This means that only ifthe asylum-seeker is assisted by a lawyer or bya specialized NGO will he/she be able to un-derstand that the extension has to do with aDublin hit.

2. In Spain, the average time taken to carry outa transfer after responsibility is taken by ano-ther Member State is 3 to 6 months (with a mi-nimum of a month and a maximum of a year).3. Often, the receiving country is not informedof the ongoing transfer or is not provided withthe necessary details (for example if the personconcerned is a minor) in a timely manner.4. In Spain, on some occasions asylum-see-kers have arrived unaccompanied, while inothers, authorities have been notified of thetransfer with only one day’s notice. Finally, therehave been few cases of families transferredwith children who were not included in the ac-ceptance request.

ii. Good practices:1. With regard to receiving asylum-seekers af-ter transfer, in Spain, it is the Red Cross that re-ceives asylum-seekers at Barajas airport andprovides them with useful information regardingthe Dublin procedure.2. In Spain, after an inadmissibility decision istaken, information on travel arrangements is gi-ven to the applicant during an interview carriedout by the Police Unit in the Asylum Office incharge of the transfer.3. In Spain, asylum-seekers who have pre-viously asked for asylum normally have directaccess to the procedure upon transfer. If theprocedure was discontinued, it is reopenedand the applicant is documented as an asylum-seeker as soon as he or she presents him/her-self at the asylum office. If the procedure is ins-tead pending, the procedure is continued andthe person is automatically considered an asy-lum-seeker. Therefore, it is only in the cases inwhich the person had not asked for asylum orin which he/she had his claim rejected thatthere is not an automatic or facilitated accessto procedure: nevertheless the person has inany case the possibility to lodge a new claim assoon as he arrives in Spain.4. Providing applicants with laissez-passers fa-cilitates the taking back procedure after trans-fer. States applying this measure are Spain,Germany, Sweden and Italy.

TIME LIMITS FOR TAKING CHARGE ANDTAKING BACK PROCEDURESi. Good practices:1. In Spain, asylum-seekers whose cases trig-ger the submission of a take back request toanother Member State are documented asasylum-seekers until a positive response fromthe concerned Member State allows the Spa-nish Authorities to reject the case at the ad-missibility procedure. If the rejection is not for-malized before the timeframe for reaching adecision at the admissibility stage (2 months),asylum-seekers are automatically admitted tothe on-merits procedure and continue to bedocumented as asylum-seekers until the caseis closed. However, in order to avoid automa-


tic admission of the cases which are awaitinga response from the Requested Member State,the 2 month time limit of the admissibility pro-cedure is extended by one month: this is noti-fied to the applicant.2. As a matter of fact, most Spanish jurispru-dence is based on the application of the “po-sitive silence” principle by virtue of which casesshould be automatically admitted to the on-merit procedure. Jurisprudence also focuseson relations between Dublin and National ti-meframes.

� Case studies

1.- Mr. Rami, from Syria, came to Europe throughNorway with a Spanish Visa issued in Syria. Nor-way sent him to Spain despite the fact he hasmental health problems. In Norway he was impri-soned for two weeks. Once in Spain he applied forasylum but the OAR ruled the application inad-missible as he applied first in Norway. As he is li-ving in a CEAR accommodation flat the Policespoke to our social worker there. They boughtthe flight ticket to Norway but wanted to know if hewill take the plane to avoid the expenditure if wewere going to stay in Madrid.He wanted to go to Romania by bus but we ex-plained to him the problems he will face if the Po-lice in other EU country find him.He does not want to go back to Norway as hethinks they will deport him back to Syria where heis under persecution from the authorities.Now, he is still living in Spain without any kind ofpermit. After six months, he can apply for asylumagain if persecution is still ongoing in Syria.

2.- Mr. Abuh, a Palestinian from Bethlehem, WestBank, came to Spain directly from Bangkok in2010. He did notwant to stay in Spain becausetwo of his brothers live here and they do not havea good relationship. We assisted him in the first in-terview in the office and went with him to apply forasylum in the Asylum and Refugee Office (OAR).The OAR didn´t admit the application as they ap-plied Dublin procedure ruling to send him toLuxemburg as he had a visa issued by The Ne-therlands (Embassy in Bangkok).We submitted an admission report as he has twobrothers living in Spain with their family. His bro-thers have had Spanish nationality for more than20 years.They rejected the admission and didn´t take intoconsideration his family links with Spain. He hasnot been deported.


HUMANITARIAN CLAUSEi. Spain does not use the clause to prevent trans-fers to Greece. Article 15 has to be applied evenif transfer is not executed by force.

VULNERABLE ASYLUM-SEEKERS1. There should be a particular procedure forvulnerable Dubliners, even if Dublin Units de-clare that they receive the assistance needed.According to the new Law on asylum and sub-sidiary protection – Law 12/2009 of 30th Oc-tober 2009 – there is a specific rule for minorsand for other vulnerable groups but no parti-cular procedure for vulnerable Dubliners is in-cluded.

TRANSFERS1. In Spain, the admissibility procedure is ex-tended by one month for Dublin cases. This isnotified to the applicant but notification doesnot include information about the reasons whythe extension is made. This means that only ifthe asylum-seeker is assisted by a lawyer or bya specialized NGO will he/she be able to un-derstand that the extension has to do with aDublin hit.2. Legal assistance should be ensured toDubliners upon arrival as social assistance is.3. In Spain, the average time taken to carry outa transfer after responsibility is taken by ano-ther Member State is 3 to 6 months (with a mi-nimum of a month and a maximum of a year).4. Often, the receiving country is not informedof the ongoing transfer or is not provided withthe necessary details (for example if the personconcerned is a minor) in a timely manner.5. In Spain, on some occasions asylum-see-kers have arrived unaccompanied, while inothers, authorities have been notified of thetransfer with only one day’s notice. Finally, therehave been few cases of families transferredwith children who were not included in the ac-ceptance request.


48 - Both laws areavailable in English online:www.admin.ch/ch/e/rs/1.html.

49 - Federal AdministrativeCourt, decision of 2 February2010, E-5841/2009, in German,http://www.bvger.ch/publiws/download?decisionId=333f883e-a589-4754-bd8e-3a4f8257a868.

Organization: Swiss RefugeeCouncil

1. National context:legislation on asylum andDublin - Field observationsand recent developments

The asylum procedure is regulated in the SwissAsylum Act of 16 June 1998. Detention is regu-lated in the Federal Act on Foreign Nationals ofDecember 16, 200548.

1.1. Inadmissibility decision

According to Art. 34 al. 2 lit. d of the Swiss Asy-lum Act, in accordance with the Dublin regulation,normally Swiss authorities do not examine themerits of the case if another state is responsiblefor the asylum procedure. In cases such as this,the Federal Office for Migration takes an inad-missibility decision. The asylum seeker has theright to be heard on the planned transfer to theresponsible Dublin member state (art. 36 para. 2Asylum Act).

1.2. Appeal

According to Art. 107a of the Swiss Asylum Act,an appeal against a Dublin-inadmissibility deci-sion does not automatically have suspensive ef-fect. However, it is possible for the asylum see-ker to ask for suspensive effect within the appealdeadline (5 working days). The Federal Adminis-trative Court decides within another 5 days whe-ther or not to grant suspensive effect. This meansthat during these time periods, the asylum seekercannot be returned to the other Dublin memberstate. This specific provision has been included inthe Asylum Act, enacted on January 1, 2011. Ittransforms the findings of the Federal Adminis-trative Court’s leading case in February 2010 intolegal obligation.Until February 2010 asylum seekers were usuallytransferred to the responsible European countryimmediately after receiving the decision from theFederal Office for Migration. Therefore it was of-ten impossible to contact a legal advisory office,lodge an appeal and receive a decision from thecourt granting suspensive effect in time. But on2 February 2010, in the case of an Afghan asy-lum seeker represented by OSAR, the FederalAdministrative Court issued a landmark case de-

cision that this practice is unlawful49. The courtheld that the asylum seeker must have the op-portunity to lodge an appeal and ask for sus-pensive effect; and the court must have the op-portunity to decide whether or not to grant thesuspensive effect before the asylum seeker is tobe transferred.

1.3. Summary of the landmarkcase decision of the FederalAdministrative Court (TAF)of 2 February 2010

The landmark case is about an appeal the SwissRefugee Council filled in on September 15, 2009in a case where an 18 year old Afghan man wassent back to Greece after receiving a negative“Dublin-decision” by the Federal Office for Mi-gration (first instance body).

The day the notification of the decision was deli-vered, the lawyer applied to the TAF requestingthe suspensive effect for the appeal and appliedfor interim measures to immediately stop the re-moval. It was granted by the TAF the followingday with the reasons that it would be questiona-ble whether or not asylum seekers would haveaccess to a fair asylum procedure in Greece (afact that could lead to refoulement), that Greecewould be under a considerable strain of receivingasylum seekers and therefore asylum seekersare at risk of living in overcrowded camps underinhumane conditions without medical and socialprovisions or they could be confronted by the riskof being homeless due to lack of accommodationwhich would be a well-founded indication of abreach of article 3 of ECHR. The problem wasthat the Federal Office for Migration removed theasylum seeker immediately after the notification ofthe decision (and during the time granted for anappeal). When the TAF was informed about thesituation it ordered the first instance body to im-mediately take back the asylum seeker. Unfortu-nately the person concerned was untraceable.

The TAF judged now that the client has still a le-gitimate interest in a judgment from the SwissCourt even though he was now abroad becausethis would be foreseen by the Dublin Regulation.(The fact that the client could no longer becontacted shows the difficulties involved in ac-cessing an asylum procedure in Greece).

The TAF judged that the Federal Office for Mi-gration’s notification of the Dublin decision byfax to the lawyer while the decision was disclosedpersonally to the client was inadmissible. There-fore they did not consider the countdown againstthe time allotted before the appeal deadline hadbegun. A decision must be notified by registeredmail to the lawyer. There is no legal ground for«orally» notifying a decision to an asylum seekerwho is represented by a lawyer.

The TAF judges that the Federal Office for Mi-gration’s practice of removing asylum seekersimmediately after the opening of the decisionbreaches the right to an effective remedy as writ-ten in the Swiss Constitution (article 29a) andthe ECHR (article 13 in combination with article3). According to Swiss Asylum Law, an appealagainst a Dublin-decision has no suspensive ef-fect. However, a suspensive effect can be appliedfor before the TAF if there is well-founded evi-dence of a breach of fundamental rights as sta-ted in the ECHR committed by the responsibleDublin-state (article 107a Swiss Asylum Law).According to the judgment, not only a well-foun-ded fear that a breach of the ECHR will occur butalso a breach of other fundamental rights as sta-ted in other international conventions such asarticle 3 of the convention against torture or arti-cle 33 of the Refugee Convention (risk of chainrefoulement) can be reasons for applying sus-pensive effect.

The TAF adds that in the due process of such anapplication, the asylum seeker has to be in Swit-zerland when the appeal and request for sup-sensive effect are filled and judged by the TAF.This can only be guaranteed if the Federal Officefor Migration does not issue an immediate remo-val. As a result, the Federal Office for Migrationmust wait until the asylum seeker and/or the la-wyer has had the possibility to make an appealand the Court has made a decision about gran-ting a suspensive effect to the appeal.

The TAF does not define how long the Federal Of-fice must wait until it can remove an asylum see-ker to the responsible Dublin-State. They proposethat this waiting time should be as long as the timeallotted for Dublin-appeals which would be 5 wor-king days (article 108 Swiss Asylum Law).

In its judgment the TAF analyses the jurispru-dence of the ECtHR (Conka, Saadi, T.I., Gebre-medhin, Kudla, K.R.S) and recommendations ofthe Council of Europe, as well as the proposal ofthe European Commission to recast the Dublinregulation.

Although the practice has improved, it must beadded that currently asylum seekers are often de-tained between the notification of the decisionand the transfer. In detention, access to legaladvisory services can be difficult (see below un-der Detention).

Art. 3.2 Dublin RegulationOn January 26, 2011, the Federal Office for Mi-gration publicly announced that with immediateeffect it will “largely” refrain from sending asylumseekers to Greece. If an asylum seeker had thepossibility to access the asylum procedure inGreece, and if they had accommodation there,there will still be a Dublin procedure. This decisionfollows the ECHR judgment of MSS v. Belgiumand Greece, however, the Federal Office for Mi-gration did not mention this decision in its an-nouncement. OSAR basically welcomes theFOM’s decision but does not see any room forexceptions as stated by the FOM, given theECHR’s clear ruling in MSS.Otherwise, there are no general rules as to howart. 3.2 is implemented. The FOM is reluctant totransparently show its criteria for using the sove-reignty clause. In OSAR’s view, it is problematicthat even vulnerable persons like unaccompaniedminors or families with small children are trans-ferred to Dublin states with insufficient receptionconditions, e.g. Italy and Malta. It is often onlystated in a very general manner that the other Du-blin member state has ratified all the relevant hu-man rights conventions and therefore respects itsobligations. Especially with unaccompanied mi-nors it is problematic that the Swiss authorities donot systematically and individually ascertain thatthey will be accommodated in adequate struc-tures in the responsible Dublin state.

Art. 15 Dublin RegulationOSAR does not know of any general criteria forthe humanitarian clause to be implemented bythe Swiss authorities. In some cases, the Fede-ral Office for Migration has only considered familyrelatives in accordance with the narrow definitionin Art. 2 lit. i Dublin Regulation in deciding whichmember state is responsible. In some of thesecases, the Federal Administrative Court then sta-ted that the authorities should also have takeninto consideration the presence of other relativessuch as siblings in Switzerland.

1.4. Notification

As of January 1, 2011, Dublin inadmissibility de-cisions can be notified directly to the asylum see-ker, even if he/she has a legal representative (art.13 para. 5 Asylum Act). Notification shall be madeto the legal representative “immediately”. It is sofar unclear how this measure will be put intopractice. The direct notification to the asylumseeker can be problematic especially if the asy-lum seeker is in detention and the legal repre-sentative is not informed or cannot get in touchwith that person in time to discuss and submit anappeal.

1.5. Detention

Up until 2011, the regular legal grounds for ex-tradition detention have also been applied to Du-blin cases. On January 1, 2011 specific legal


provisions on detention for Dublin cases havecome into effect:- Preparatory detention before the decision forup to 6 months if the asylum seeker has deniedpassing through a Dublin member state, havinga right to stay or a visa, or having made an asy-lum application in one of those states, art. 75para. 1bis Federal Act on Foreign Nationals(FNA).

- Detention pending deportation after a Dublininadmissibility decision for up to 30 days if theexecution of the transfer is foreseeable, art.76 para. 1 litera b number 6 and para. 2 FNA

In addition, if other grounds for detention are ful-filled, they can also be applicable to Dublin cases.In practice, asylum seekers are often detainedbetween the notification of the decision and thetransfer. Access to legal advisory services can bedifficult for asylum seekers in detention. This isproblematic especially in cases where the recep-tion conditions in the responsible Dublin stateare not sufficient (e.g. in Greece, Italy, Malta) or ifthere is a risk of indirect refoulement by the Du-blin state to the country of origin without exami-nation the merits of the asylum application (e.g.Greece).

1.6. Transfer

Cases have been reported where the executionof Dublin transfers by cantonal police authoritieswere not appropriate. The asylum seekers, in-cluding families, are often picked up at their resi-dence very early in the morning, accompanied bya whole team of police officers. Thus far it is notknown whether the mental and physical conditionof the person to be transferred is sufficiently ta-ken into account.

Direct applicability ofDublin Regulation provisions,especially 6 month transferdeadline: Leading casedecision of the FederalAdministrative Courtof 29 June 201050

In this very long decision (44 pages), the courtstates that an asylum seeker can invoke a provi-sion of the Dublin Regulation directly if that provi-sion is self-executing. A provision is self-executingif it is sufficiently precise and clear, if it is aimed atthe authorities applying the law and if its purposeis the protection of the asylum seekers’ rights. Ac-cording to the court, art. 19.3 and 19.4 as well asart. 20.1 d) and 20.2 of the Dublin Regulation aresufficiently precise and clear and aimed at theauthorities applying the law. Furthermore, theirpurpose is to protect the asylum seekers’ rights:specifically, the right to an examination of the asy-lum claim within a reasonable time limit. Therefore,

the asylum seeker can invoke these provisions ofthe Dublin Regulation. If the transfer deadline haselapsed and the asylum seeker is still in Switzer-land, basically the asylum seeker can demandthat the authorities assert that Switzerland has be-come responsible for the asylum procedure underthe Dublin Regulation (except in cases of abuse ofrights). However, if the person has already beentransferred to the other Dublin state despite thelapse of the transfer period of six months, and ac-cording to the circumstances if it appears that thestate in question still accepts its responsibility forexamining the asylum application, there is the (re-futable) assumption that the state will also live upto this responsibility. In this particular case, Italystill considered itself responsible, even thoughthe transfer deadline of six months had elapsed.According to the court, the applicant has notbrought forward anything to refute the mentionedassumption. Therefore, the Federal Office for Mi-gration was correct in denying the application forreconsideration.

1.7. Statistics51

There were a total of 15,567 new asylum appli-cations in Switzerland in 2010. There were 7,321Dublin procedures of which there were 5,994out- and 1,327 in-procedures.Of the out-procedures, in 5,095 cases the re-quested member state agreed to take charge ortake back the asylum seeker, 853 declined. 2,722persons were transferred. The vast majority ofasylum seekers in the Dublin procedure weretransferred to Italy: 2,782 out-procedures, 1,368transfers. Other significant out-procedures wereAustria, Greece, Germany, France, Poland andSpain.Of the in-procedures, in 797 cases Switzerlandagreed to take charge or to take back the asylumseeker and 514 cases were declined. In total, 481persons were transferred to Switzerland.

2. Assessment of theproject implementation bythe partner organization

General comment: As an umbrella organization,the Swiss Refugee Council normally does notprovide individual legal advice or take over re-presentations in individual cases, only in excep-tional, landmark cases. Generally, we coordinateand support our member organizations, who pro-vide legal advice to asylum seekers and take in-dividual cases. There are no numbers available asto how many asylum seekers were assisted byour member organizations.

In several cases, information and contacts ofpartner organizations were given out to personsasking for advice; even if not in all the cases theindividual follow-up file was used.


50 - Federal AdministrativeCourt, decision of 29 June 2010,E-6525/2009, in French,http://www.bvger.ch/publiws/download?decisionId=ec43d3b2-5e47-4efe-bbb2-88dabee8bac6.

51 - Annual asylum statisticsof the Federal Office forMigration, 2010,p. 18 and 58-63,http://www.bfm.admin.ch/content/dam/data/migration/statistik/asylstatistik/jahr/2010/stat-jahr-2010-f.pdf.


3. Analysis of theapplication of Dublinat national level

3.1. Main problematicaspects:

- It is problematic that even vulnerable personssuch as unaccompanied minors or familieswith small children are transferred to Dublinstates with insufficient reception conditions,e.g. Italy and Malta. Especially with unaccom-panied minors it is problematic that the Swissauthorities do not systematically ascertain thatthey will be accommodated in adequate struc-tures in the responsible Dublin state. Example:a young, illiterate Roma woman with a smallchild who was abused by her husband and hisfamily will be transferred to Hungary, eventhough she fears retribution by her husband’srelatives in Hungary. The Swiss authorities areof the opinion that she can get protection inHungary. The legal representative connectedthe Hungarian Helsinki Committee with thiscase by the individual follow-up file.

- For asylum seekers in detention, access to le-gal advisory services can be difficult. This isproblematic especially in cases where the re-ception conditions in the responsible Dublinstate are not sufficient (e.g. in Greece, Italy,Malta) or if there is a risk of indirect refoulementby the Dublin state to the country of origin wi-thout examination of the merits of the asylumapplication (e.g. Greece). In this regard, it isalso problematic that decisions can be notifiedto asylum seekers directly, even if they have alegal representative (see above 2. on notifica-tion). Example: In March 2011, a Nigerian asy-

lum seeker received his decision in detentionand could not contact the legal advisory ser-vice in time to make an appeal during thedeadline of 5 working days. Subsequently, hewas transferred to Greece. This is especiallyproblematic as it happened after the ECHRjudgment in MSS.


4.1. Implementationof the project:

� Benefits:- Creation of a brochure to inform asylum see-kers about the asylum and Dublin procedure

- Network and contacts in other Dublin memberstates facilitated by the project

- Possibility of individual follow-ups in certaincases, especially for vulnerable persons

� Shortfalls:- For OSAR the participation in the Dublin-Pro-ject is a pilot experience as it is the first EU-Project that OSAR has participated in. Untilnow we have not taken part in activities thatinclude so many different players.

- At the beginning of the project period many is-sues remained unclear. This lead to the entireprocess being delayed. The first step – the de-velopment of tools for dissemination withinthe network took a long time.

- OSAR also faced some difficulties as an as-sociated partner. Many issues needing specialregulations, proposals or additional coordina-tion had to be discussed with the coordinator.In some aspects it was not clear whether

48 - Cour FédéraleAdministrative, décision

du 29 Juin 2010, E-6525/2009,en français,

http://www.bvger.ch/publiws/download?decisionId=ec43d3b2-5e47-4efe-bbb2-88dabee8bac6.

49 - Statistiques annuellessur l’asile de l’Office Fédérale

pour les Migration,2010, p. 18 et 58-63,

http://www.bfm.admin.ch/content/dam/data/migration/

statistik/asylstatistik/jahr/2010/stat-jahr-2010-f.pdf.

CATEGORY






NUMBER

General information and contact addressesgiven to several persons during our legalinformation phone hours, 2 afternoonsper week

2 out-cases by our partner organizations; 1 in-casefrom Luxemburg

At least 5 (2 out-cases and 1 in-casewith follow-up file)

No numbers available. Information and adviceprovided to several asylum seekers by our memberorganizations in the course of their daily work.

Information given to organizations in Luxemburg,Belgium and Germany regarding asylum seekersto be transferred to Switzerland. One case referredby Greece after the transfer from Switzerland,one case of an asylum seeker in detentionin Switzerland referred by partner organizationin Belgium and directed to a legal advisory service(but without follow-up file).


costs and expenses would be covered by Eu-ropean Refugee Fund or whether OSAR hadto finance it. Production of the brochures wasespecially affected by this. These uncertaintiesled to further delays.

- As OSAR does not handle individual cases,OSAR needs to involve the network of legalaid offices. These offices are very interested inthe project, but as with every new system, at-tentive care and assistance are needed onOSAR’s behalf in order to implement the pro-ject on the Swiss national level.

- Rather than maintaining only a limited numberof partners, OSAR would like to see morepartners in additional countries be included inthe second project (application under ERF ha-ving been submitted in December 2010). Thereadiness of the Swiss authorities to dissemi-nate the brochures depends on the provisionof leaflets regarding all member states (inter-nal guidelines of the Swiss Federal Office forMigration).

4.2. Implementationof the Dublin Regulation:

� Positive developments:The Federal Administrative Court has issued se-veral decisions on the Dublin procedure that im-proved and clarified Swiss practice.

� Recommendations for improvement:− The FOM should refrain from transferring per-sons, especially vulnerable persons, to coun-tries where adequate reception and access toa fair and efficient asylum procedure are notguaranteed. In these cases, it should makeuse of the sovereignty clause.

− The FOM should pay more attention to the cir-cumstances of individual cases rather thangenerally stating that there are no reasonsthat speak against the transfer to certaincountries. They should more often make useof the sovereignty clause and the humanita-rian clause when appropriate, e.g. if familymembers are present in Switzerland. In thiscontext, the notion of family should be appliedmore widely.

− The opportunity for voluntary departure shouldbe given more often; detention should only beapplied as a measure of last resort.

− No “chain transfers”: Switzerland should onlyask the state responsible under the Dublin Re-gulation to take into custody or to take backthe asylum seeker. If return to that country isnot reasonable, it would be easier for Switzer-land to apply the sovereignty clause ratherthan ask another state where the asylum see-ker has passed through. This contravenes theDublin system's idea that only one stateshould be responsible for an asylum procedureand that asylum seekers should not be conti-nually pushed around.

− The gaps in the legal aid system are proble-matic: in asylum cases, free legal aid financedby the state is hardly ever granted, especiallynot in the first instance procedure. Therefore,asylum seekers depend on the services of le-gal advisory offices run by NGOs. These re-sources are limited and therefore legal supportcannot be granted to every person in need.Considering the short deadlines for filing anappeal within the Dublin procedure, this is es-pecially pertinent for persons in detentionwhere access to legal advice is often impossi-ble. The Swiss state should therefore takemore responsibility in order to guarantee thatproper legal support is available to all asylumseekers who need it.



Conclusion

Considering the objectives of the project,the expected results have been achieved:the tools have been created and imple-mented (the tools are available on the pro-ject website).

The information booklets concerning theasylum procedure (including, among otherthings, the application of the Dublin regula-tion) in each partner organizations’ MemberState have been translated into differentlanguages : Arabic, Russian, English, Farsi,Somali and French.

The individual follow-up file for asylum see-kers under a Dublin procedure, specificallycreated for the project, is now systematicallyused by the partner organizations for the fol-low-up of persons under the Dublin proce-dure.

Thanks to this project, a shared workingmethod within the organizations’ has beencreated at both national and European level.In this way, a closer monitoring of Dublincases has been set up on the European le-vel. This assures a continuous follow-up forasylum seekers under a Dublin proceduretransferred to another European country.

One major value of the network is that itsimplifies the research for up-to-date infor-mation on the national asylum systems.Consequently, the organizations’ capacity tobetter provide for asylum seekers’ needsand better defend their rights is increased.The network benefits from regular ex-changes between partners about nationallegislations and practices.

As a result, some associations, on a natio-nal and European level, have expressedtheir interest in participating in this networkin order to assure support and care of thetransferred persons. Partnerships agree-ments have been signed with some organi-zations. This expands the existing partners’network. Some newly joined associationsare : Aitima (Greece), The Hessen RefugeeCouncil (Germany), PIC (Slovenia) and theUK Refugee Council (United Kingdom).

The natural expansion of the network canbe regarded as evidence that the resourcesdeveloped and the working methods enac-ted can be adapted to all European coun-tries by implementing a real systematiza-tion of their use.

Some observations

Certain partner organizations signaled thatthey were confronted with a difficulty in iden-tifying persons under Dublin, this was eitherbecause they were not informed about arri-ving transfered persons or because theyfound it difficult to gain access to asylumseekers in detention centers. It is importantto note that, for example, persons under aDublin Regulation are placed in detentioncenters and transferred within very short ti-meframes, this prevents the organizationsfrom fully accompanying these asylum see-kers. Once the transfer is executed, it can beextremely difficult for organizations to ac-cess asylum seekers in detention centersbecause of issues regarding authorization orother logistic reasons (remote centres forexample).

The lack of cooperation with State authori-ties could, in certain countries, present pro-blems. Some non-governmental organiza-tions have displayed reticence regarding theproject, in that they consider participation inthe project is a form of acceptance of theDublin Regulation. However, once again, it isclear that the project does not support or va-lidate the Dublin system. On one hand, wework to compensate the dysfunctionmentsand its negative impact for asylum seekers,on the other hand, we are working to defendthe rights of asylum seekers.

Certain practical difficulties have also beenobserved related to the use of the individualfollow-up form. Unfortunately, due to a lackof time and possibility of having an interpe-reter, occasionally it is difficult for some part-ner organizations to fill out the form in acomplete and thorough fashion.


Follow-up table of asylum seekers -project period

CATEGORY






TOTAL(NUMBERS COMMUNICATED BY THE PARTNERORGANIZATIONS FOR THE PROJECT )

924

717

45

1 355

44


Recommendationsto improve projectimplementation

This project has enabled the creation of a ge-nuine European network, which moreover is nowgrowing, to ensure suitable support for asylumseekers under the Dublin procedure and effec-tive, efficient follow-up of transferred people.This project, which involves a large number ofpartners, proves that tools can be used in all Eu-ropean countries and that their use could there-fore be truly systematic throughout Europe.

1. A brief information brochure explaining theproject and its goals may suffice to convince anasylum seeker to join the project and authorisethe use of the individual follow-up sheet and itstransmission to a partner organisation in theevent of transfer. The follow-up sheet enablesbetter communication between the associationand the asylum seeker, providing more detailedinformation on the various procedures. It alsohelps the asylum seeker to identify a trust-wor-thy NGO in the State responsible for his appli-cation or in any other State to which he may betransferred.

2. To improve the efficiency of the brochures,it is possible that national brochures may be se-parated into two. One “You are under the Dublinprocedure in country X” brochure, correspondingto part 1 of the current brochure and one “Youare being readmitted to country X” brochure,corresponding to parts 2 and 3 of the currentbrochure. This separation would make the infor-mation easier to read and provide the asylumseeker with information directly relevant to his si-tuation.

3. The extension of national brochures to otherMember States, particularly those who receive orreadmit significant numbers of Dublin asylumseekers (UK, Germany), would provide assis-tance for the majority of cases. The translation ofthese information brochures into other languageswould also enable a larger number of asylumseekers to be properly informed. The brochurescurrently exist in six languages. These brochuresmust be promoted as broadly as possible, par-ticularly in the points of entry into the country (air-port, port, station, etc.). National brochure infor-mation must be updated regularly.

4. The creation of the network to counsel andassist asylum seekers under the Dublin proce-dure improves the support provided to readmit-ted asylum seekers. It also offers a guarantee for

asylum seekers concerning access to the pro-cedure in the responsible State. By nature, theefficiency of a network depends on its size anddensity and this is true on a European as well asnational scale. It is therefore important to extendthe network throughout Europe to other Mem-ber States. Nationally, the network can be ex-tended to include the largest possible number ofreception structures providing support for asy-lum seekers.

Recommendationsconcerning theDublin Regulationand its application

1. The hierarchy of the Regulation’s implementa-tion criteria must be reviewed as a priority. TheDublin system criteria are unfair in that they imposean additional charge upon EU States with externalborders. We must depart from a purely adminis-trative interpretation of the Regulation and favourlinks of any kind whatsoever (family ties, linguisticabilities, cultural ties, etc.) between an asylum see-ker and a State.

2. The States must respect the principle of familyunit, without limiting the definition of family mem-bers to those already present in the country of ori-gin. A broader definition of family members mustbe adopted in order to ensure the respect of eachindividual to family life. The principle of family unitymust be applied in all situations in which an asy-lum seeker can be considered as being dependent(emotional or material dependency).

3. Effective identification mechanisms based oncommon criteria must be set up to enable theidentification of asylum seekers and the subse-quent provision of a suitable solution. We mustprovide for better consideration of the specificneeds of certain asylum seekers, whose vulnera-bility is incompatible with transfer conditions andthe difficulties of actual implementation of the Re-gulation.

4. Full information must be provided in a languageunderstood by the asylum seeker. He must haveaccess to information on the operation and impli-cations of the Regulation and his rights. This in-formation should also include information on thetransfer country. Furthermore, asylum seekersmust be informed of the reasons behind theStates’ decisions on their procedures to ensurethat their situations are properly understood.

5. The coordination and exchange of informationon Dublin cases and the national asylum systemsbetween Member States must be improved toenable transfers to be anticipated (suitable assis-tance provided upon arrival in the responsiblecountry) and to ensure continuity in the legal, so-cial and medical follow-up of asylum seekers.When a transfer is enforced, the States musttransmit all documents concerning the asylumseekers (passports, medical documents, etc.) tothe authorities of the transfer State.

6. Detention must be used as a last resort mea-sure. Alternative measures that do not deprive offreedom must be favoured. In practice, it appearsthat the notion of escape is abusively interpretedby the States. The organisation of voluntary returns

must be favoured and minors and vulnerable per-sons must not be placed in detention under anycircumstances.

7. Asylum seekers under the Dublin proceduremust be considered as fully fledged asylum see-kers and therefore benefit from the same receptionconditions (social welfare, medical care, accom-modation, etc.). This also includes the presence ofa lawyer at the interview with the authorities, or atthe very least, a written report of the hearing forpresentation to a lawyer.

8. In compliance with the ruling of the EuropeanCourt of Human Rights in the MSS case, applica-tion of the Dublin Regulation must never be sys-tematic. Conditions in the transfer State must betaken into account by the returning State beforeany transfer decision is made. A transfer suspen-sion mechanism must be provided for caseswhere the level of protection provided to applicantsis deemed insufficient and/or a large influx of asy-lum seekers into a State has seriously deterioratedthe said State’s reception and protection system.

9. The right to effective remedy must be providedagainst transfer decisions. This effective remedy in-cludes the systematic, suspensive effect of ap-peals. The appeal must be considered as an inte-gral part of the asylum procedure. Furthermore, inorder to assert their rights, asylum seekers musthave access to free legal assistance.

10. A personal interview must be organised by theauthorities when the Dublin procedure is launchedto inform the asylum seeker of the procedure andits consequences and what can be done to notifyof a situation that would prevent readmission toanother European State. The conflicts that existbetween the procedural deadlines applied underDublin and those applied by the Member Statemust also be resolved to be favourable to the asy-lum seeker in every case.

11. The humanitarian clause in article 15.1 of theDublin Regulation must be applied as broadly aspossible.

12. Access to free, effective healthcare and touniversal health cover must be guaranteed throughall phases of the procedure and in all MemberStates.

13. The Regulation must not be applied to unac-companied minors and their transfer must only beauthorised for the purposes of family unity and onlythen in the child’s best interests.

14. Effective access to an asylum procedure mustbe guaranteed to all asylum seekers. Applicationof the Dublin Regulation must not represent anobstacle to the right to asylum.




Asyl in NotAUSTRIAAsyl in Not fights for the maintenance of humanrights and for the reestablishment of the basicright of political asylum and combines both legaland political work. The main tasks in the field oflegal advice for our clients are- legal actions against negative adjudications- preparation and support for interrogations andfor trials at the asylum court

- legal actions and prison visits in cases of de-tention and arrest through alien´s police

- Securing of psychotherapy places- Help with accommodation- Consultation for rejected or refused refugeesand

- Legal support for accepted refugees

As asylum law is changed frequently, further com-plicating the situation of refugees and asylumseekers, legal advice in asylum cases became adifficult and complex concern. Only through indi-vidual, and engaged consultation will refugeeshave a chance of accessing justice.

Asyl in Not holds about 3000 legal consultationsand conducts about 600 to 700 legal actions.The team is small, but successful. About 50 to 70proceedings have come to a positive conclusion;the clients receive political asylum or another sta-tus in Austria.

Since the Dublin Regulation became part of Eu-ropean legislation, Asyl in Not has fought againstthis breach of the Geneva Convention because itmeans for many refugees that they cannot takeadvantage of the rights they are entitled to.

Practice in Austria also seems to violate the prin-ciples of human rights, especially Art 2, 3 and 8of ECHR and even grave violations of the Dublinregulation itself, for instance with regard to theunity of the families.

So for Asyl in Not the project was from a politicalpoint of view a good chance to point out theinhumane practices of Austrian asylum authoritiesin the use of the Dublin regulation and a hope toimprove the general situation for asylum seekersin a Dublin procedure.

With regard to work for individual clients it wasalso a chance to improve the situation for thoseclients who were deported to the responsibleDublin state. On the one hand the clients knewthat there was another NGO which would takecare of them – so they were less afraid of beingdeported; on the other hand the general recep-tion conditions and the legal support in cases ofdeportation were improved.

Finally the general networking between the NGOstaking part turned out to be very helpful too, es-pecially concerning the exchange of judicature,which helped us in our every day work for ourclients.

Flemish Refugee ActionBELGIUMFlemish Refugee Action (FRA) is an indepen-dent, non-governmental organization that de-fends the rights and interests of refugees andasylum seekers. FRA works with over 40 mem-ber organizations and relies on the support ofnumerous enthusiastic volunteers. Its main goalis to raise awareness about the situation of refu-gees and their protection needs.

The Refugee Convention, the Universal Declara-tion of Human Rights and the European Conven-tion on Human Rights are its guiding principles.In practice this work is based on four pillars, na-mely: influencing public opinion, pressuring po-licy makers, supporting everyone who assistsrefugees (professionals and volunteers) - andstimulating the cooperation among these orga-nisations and volunteers. This happens throughmedia campaigns, creative actions and lobbywork, along with the provision of expert infor-mation, training and publications to everyonewho, professionally and voluntarily, works with,assists or counsels asylum seekers and refu-gees. Through its projects FRA tries to coverthe different stages of what it means to be a re-fugee: social and legal support upon arrival andduring the asylum procedure, shelter, integra-tion and return. Finally, FRA mobilizes organisa-tions and individuals to cooperate and to im-prove the quality of the assistance offered toasylum seekers and refugees.

Partner organizations(and relevance of the project for the organizations)

The Dublin project gave FRA the opportunity tofocus on a different stage, namely the first mo-ments of arrival and the request for protection.The application of the Dublin convention alwaysraised many questions, a feeling shared amongother Belgian NGOs and the partners in the Du-blin-project. This project allowed the needed in-formation sharing to be more structured and al-lowed us to explore new ways of assistingrefugees.

On the policy and public opinion level, the infor-mation sharing between the partners of the pro-ject is an important source for being able to de-tect and signal certain issues. The project alsoallowed FRA to a certain extent to consult the re-levant Belgian officials and to get more clarity onthe application of the Dublin Convention.

On the level of assistance for professionals andvolunteers who work with refugees, the infor-mation sheets on the asylum procedures and ap-plication of the Dublin convention are a newsource of information that was not easy to findbefore. FRA believes that instruments made fora follow-up of individual Dublin cases could be-come an important aspect of the assistance ofeach refugee for whom the Dublin conventionapplies.

Irish Refugee CouncilIRELANDEstablished in 1992, the Irish Refugee Council(IRC) is the longest established NGO in Ireland’srefugee and migrant sector. The organisation isthe most authoritative and credible voice in thefield of asylum in Ireland. It has demonstrated ex-pertise and commitment, particularly in relation toseparated children, direct provision and asylumpolicy. The matters that the IRC has focused onhave become causes for concern and attentionboth within the NGO sector and by the State. In-deed, the Council has played a crucial role in ef-fecting important improvements in all its areas ofoperation for many thousands of people in theIrish asylum process.

Much of the Irish Refugee Council’s work centreson the area of advocacy and capacity building.Capacity building focuses on civil servants andother key personnel in refugee policy or practiceareas, refugee legal practitioners and NGOswhich specialise in this field. The IRC’s advocacyconcentrates on a number of distinct yet inter-related groups: civil servants, politicians, mediaand the public. The IRC also undertakes a limi-ted amount of casework. The cases are drawnfrom people at various stages of their protectionclaim, as well as people with issues related to thesystem of support and accommodation for pro-tection applicants (known generally as ‘Direct

Provision’). In addition, we have staff that spe-cialise in children’s work, communications andEuropean asylum case law.

The Irish Refugee Council and the Transna-tional Advisory and Assistant Network forAsylum Seekers under a Dublin Process

Since its entry into force, the Dublin II Regulationhas become a significant instrument in the Irishasylum process. Ireland’s very location – an is-land on the western edge of Europe – means thatwe are very rarely the first European country thata person seeking international protection enters.Therefore, many asylum seekers have previouslyheld visas of some description in other EU mem-ber states or may in some cases have previouslysought asylum in another member State and maythus be subject to transfer under the Dublin II Re-gulation.

Consequently, the Transnational Advisory andAssistant Network for Asylum Seekers under aDublin Process has the potential to be a valuablenetwork for ensuring a continuity of care for asy-lum seekers transferred from Ireland to anotherEU state under the Dublin II Regulation.

Italian Councilfor RefugeesITALYThe Italian Council for Refugees (CIR) is an inde-pendent, humanitarian and non profit-making or-ganisation, founded in 1990 under the patronageof the United Nations High Commissioner for Re-fugees (UNHCR). CIR works with the aim of em-powering and co-ordinating actions in defence ofrefugees and asylum seekers' rights in Italy, inparticular in favour of vulnerable groups of peo-ple such as women, victims of gender basedviolence, unaccompanied minors and victims oftorture. Among its members CIR counts impor-tant humanitarian associations and organisations,the three main Italian trade unions and nationaland international research institutes. CIR is amember of the European Council on Refugeesand Exiles (ECRE), as well as of the Euro-Medi-terranean Human Rights Network (EMHRN). CIRhas been carrying out extensive lobbying activitywith Parliament and the Government to pass anational comprehensive law on asylum.

Its main office is located in Rome. The organiza-tion runs several projects funded mostly by theEuropean Commission, the Italian Government,and the private sector, in favour of asylum see-kers and refugees during all stages of the asylumprocedure as well as integration in the Italian ter-ritory. CIR also co-ordinates various sub-offices indifferent cities across Italy, particularly at nevral-gic entrance borders.


The Dublin project is particularly important in theItalian context as Italy is an EU Member State withmany unofficial external borders and thereforeone of the countries more affected by the arrivalof boat people. Due in particular to Italy being areceiving country, CIR is assigned many cases:consequently, this project is significant because itprovides the opportunity to be informed and mo-nitor the phenomenon at a European level also.

Forum réfugiésFRANCEForum réfugiés is a non-profit-making association(established under the 1901 law) working to wel-come refugees and defend the right to asylum. Ba-sed in Lyon, it was founded in 1982 when severalassociations (Secours Catholique, SSAE, Climade,Entraide protestante, Centre Pierre Valdo, Sona-cotra) came together to create an organisationspecifically intended for the protection of refugees.

Forum réfugiés is a recognised and privile-ged player in the asylum field, and works incooperation with both public and privatepartners, at national, European and interna-tional level.

Accommodating asylum seekers in recep-tion centresThe association, which runs a transit centre, andtwo Reception Centres for Asylum Seekers(CADA) located in the Rhône, l’Allier and Puy-de-Dôme, and a Temporary Accommodation Centre(CPH) for statutory refugees, can accommodate843 people at a time and provides 300,000nights of accommodation per year. The asylumseekers placed in our reception centres receivelegal support and social assistance throughoutthe entire asylum procedure. On several occa-sions, Forum réfugiés has participated in emer-gency reception operations, such as the Koso-van refugee operation in 1999 and the action forKurdish refugees aboard the ‘East Sea’ in 2001.

La maison du réfugiéIn Lyon, Forum réfugiés has integrated all itsservices for asylum seekers and refugees in onelocation in order to simplify the process and pro-vide better access to assistance. The centre of-fers support at every step of the asylum proce-dure (reception and accommodation, assistanceoutside of the reception centre, support for indi-viduals whose asylum claims are refused). Since22nd February 2011 Forum réfugiés runs also areception platform in Nice.

Integration of statutory refugeesIn 2002, Forum réfugiés launched the Accelairprogramme which aims to improve the condi-tions of, and the capacity for, the integration ofstatutory refugees. Accelair helps refugees toaccess and retain work and accommodation.

The programme is approaching the end of its se-venth year and has rehoused 3,500 people todate in the Rhone département.

HealthIn 2007, Forum réfugiés joined forces with Par-cours d’Exil to put in place a European projectentitled ESSOR (Extension and reinforcement ofParisian and regional health care systems). Oneof the outcomes of this project has been thecreation of the first health centre in the Rhone-Alps region specialised in the care of traumaand torture victims.

Law – ExpertiseThrough its active monitoring of asylum policy, itsuse of legal action, and its participation in re-search projects, Forum réfugiés works to en-sure the efficiency of the right to asylum.Specialist groups, which meet once a monthand are made up of experts from different ser-vices of the organisation, continuously examinea wide range of issues including European mat-ters, regulation at national level, social and healthmatters, and accommodation and employment.

Actions undertakenby Forum Réfugiés for asylum seekersunder a Dublin procedure

The association runs a reception platform and atransit center in Lyon.Persons under a Dublin procedure receive ac-commodations and are monitored at the Maisondu Réfugié (“Refugee House”) and at the transitcenter.Forum réfugié decided to launch the Transnatio-nal Dublin Project in response to our continuedefforts to deal with the many problems encoun-tered during the assistance of asylum seekers.The project aims to provide the association'sasylum officers and jurists with tools to improveasylum seeker counseling services. Also, asylumofficers and jurists can rely on the network of Eu-ropean NGOs which was created as a system ofsupport.The Dublin Project is consistent with Forum ré-fugié's efforts to strengthen our ability to takeinto custody asylum seekers under Dublin pro-cedures.

France terre d’asileFRANCEFrance terre d’asile is a secular and independentcharity association based on the French law1901. Since 1971, France terre d’asile has beenworking to maintain and develop one of the ol-dest French traditions, asylum, as well as gua-ranteeing that all relevant international conven-tions are applied within French territory.By changing their status in 2007, France terred’asile extended its field of action. The association


now aims to help all the persons within the fra-mework of migration law, in particular those per-sons defined as “refugees” and “stateless” ac-cording to the Geneva Convention of July 28,1951, the New York Protocol’s first article of Ja-nuary 31, 1967 and the New York Convention ofAugust 30, 1961, along with all persons not defi-ned under the “refugee” or “stateless” legal status.

Actions undertakenby France terre d’asile for asylumseekers under a Dublin procedure:France terre d’asile supports asylum seekers un-der Dublin regulations at different stages of theprocedure.

a) Reception platformfor asylum seekers :Asylum seekers under a Dublin Procedure donot have access to the Reception Centre for asy-lum seekers. The reception platforms made avai-lable to asylum seekers under a Dublin Procedureconstitute the primary assistance offered byFrance terre d’asile.

France terre d’asile operates four reception plat-forms in Paris, Créteil, Rouen and Caen. Thecentres in Paris and Créteil are the largest plat-forms on French territory with 10,000 and 4,000asylum seekers respectively.

As for asylum seekers under a normal proce-dure, France terre d’asile also provides Dublinasylum seekers with administrative accommo-dations as well as legal and social support.Asylum seekers receive assistance from the be-ginning of their procedure when they are placedunder a Dublin regulation until their questioningfor the execution of their return procedure.Reception platforms also receive asylum seekerswho are readmitted to France from another Mem-ber State.

b) Actions in administrativedetention centres :Since December of 2009, France terre d’asilehas also been working in four administrative de-tention centres in Calais, Rouen, Plaisir and Pa-laiseau. They offer assistance and inform detai-nees about legal issues. In this context, the teamsaid certain asylum seekers who are under a Du-blin procedure and who have been placed in adetention centre while the administrative processfor their return procedure is being processed. Insome cases, asylum seekers may benefit from le-gal support and are assisted in the filing of an ap-peal against their return procedure.

Transnational Dublin Project : an action consistentwith the effort to improve support of asylum see-kers under a Dublin regulation.France terre d’asile has been worried for manyyears about the situation of asylum seekers undera Dublin Procedure. The application of this regu-lation brings about many problems, in fact, the

Dublin Procedure induces so many problems thatthe access to the right to asylum is weakened.France terre d’asile therefore constantly alertsauthorities and works with the public opinionabout this problem.At the same time, because of these very pro-blems, associations defending the right to asylumare constantly pushed to reflect on ways to im-prove their support in this field.On one hand, legal and material support seemsto be essential considering the insecure situationof asylum seekers under a Dublin Procedure. Onthe other hand, the complexity of the Dublin pro-cedure, the many differences in its applicationand the well-known differences between the Du-blin Procedure and normal asylum proceduremake this a highly demanding task for asylum lawprofessionals.

Asylum seekers under a Dublin procedure re-ceive assistance in reception platforms, however,these platforms are often overloaded with workand can not assure that all asylum seekers re-ceive the same quality of services as in standardReception Centres.Considering this, one of our association's priori-ties became the improvement of support for asy-lum seekers under a Dublin procedure.For this reason, France terre d’asile in collabora-tion with the Emmaüs association, opened a re-ception centre in 2008 for Dublin Procedure orpriority procedure asylum seekers who were re-fused accommodations in Paris. France terred’asile manages the administrative and legal sup-port for asylum seekers while Emmaüs providessocial assistance.

France terre d’asile participates in and is involvedin the Transnational Dublin Project in this context.The association is confronted by the veryconcrete problems of a lack of information avai-lable to Dublin asylum seekers and the difficultiesrelated to follow-up procedures in transfer cases.This project aims to improve the quality of supportservices for Dublin asylum seekers in France bystrengthening the association's ability to provideinformation and by assuring continuity in asylumseekers’ legal, social and material assistancethrough a network of European organizations.

HungarianHelsinki CommitteeHUNGARYThe Hungarian Helsinki Committee (HHC) is anNGO founded in 1989. It monitors the enforce-ment in Hungary of human rights enshrined in in-ternational human rights instruments, provides le-gal defence to victims of human rights abuses bystate authorities and informs the public aboutrights violations. The HHC strives to ensure thatdomestic legislation guarantee the consistent im-plementation of human rights norms. The HHC


promotes legal education and training in fields re-levant to its activities, both in Hungary andabroad. The HHC's main areas of activities arecentred on non-discrimination, protecting therights of asylum seekers and foreigners in need ofinternational protection, as well as monitoring thehuman rights performance of law enforcementagencies and the judicial system. It particularly fo-cuses on access to justice, the conditions of de-tention and the effective enforcement of the rightto defence and equality before the law. Experts ofthe HHC regularly train governmental and NGOstaff on various human rights-related issues in se-veral European countries.

The Hungarian Helsinki Committee (HHC) – asimplementing partner of the UNHCR since 1998– coordinates a national network of asylum la-wyers who provide free legal assistance to asy-lum-seekers in Hungary. An HHC lawyer is pre-sent in the refugee camp in Debrecen (the onlyopen reception centre in the country) on a per-manent basis. In addition to legal representationprovided to asylum-seekers at the court, HHC at-torneys visit immigration jails on a weekly basisand perform border monitoring at the borderswith Ukraine and Serbia. The HHC also com-ments regularly on draft legislation in the field ofasylum and immigration on a regular basis andmake continuous efforts to lobby for higher stan-dards in international protection.

The Dublin project is particularly important in theHungarian context, as it is an EU member statewith a long extra-Schengen border section andtherefore the first entry point to the EU for manyasylum seekers. Being a member of the Dublinnetwork, created under this project, enables theHHC to actively engage in the exchange of infor-mation on asylum procedures and practices inother EU Member States and enables the HHC toprovide more effective counselling to asylum see-kers placed under the Dublin procedure. The HHCis regularly approached by several NGOs fromdifferent Member States, seeking information onasylum practices in Hungary, in order to be ableto advice their clients who were awaiting theirtransfer to Hungary.

The project has also enabled us to create a newbrochure on asylum procedure, which was very ti-mely, since the previous brochure needed to beupdated due to the recent changes in the legisla-tion and practice. The network created under theproject proved to be a valuable support in theHHC’s daily work, since it facilitated the exchangeof information on events and news related to Du-blin, but also to share legal advices and opinionson application of Dublin Regulation. Finally, theproject gave an opportunity to conduct several vi-sits to the immigration jails around the country,which proved to be essential because the majo-rity of asylum seekers are now detained (indicatinga policy shift).

Helsinki Foundationfor Human RightsPOLANDThe Helsinki Foundation for Human Rights, basedin Warsaw, was established in 1989 and is one ofthe most experienced non-governmental organi-zations active in the field of human rights in Cen-tral Eastern Europe.

The Legal Assistance to Refugees and MigrantsProgram was established in 1992. The Program'sfundamental activity is to provide direct cost-freelegal assistance to asylum seekers, recognizedrefugees, persons granted complementary formof protection, and immigrants, as well as to un-dertake litigation actions.

The scope of the Program's activity also includesmonitoring and research activities. Lawyers wor-king within the Program prepare expert opinionson draft legal acts and perform training activitiesregarding asylum issues. Their work includesdrafting appeals and other official letters, legal re-presentation in the administrative stages of asy-lum procedure, interventions in individual cases,as well as undertaking litigation in the Regionaland Supreme Administrative Court in caseswhich can set a precedent in asylum cases.

The project “Transnational advisory and assis-tance network for asylum seekers under a Dublinprocedure” (Dublin project) is of high importancefor the Foundation. As was mentioned above, la-wyers working in the Legal Assistance to Refu-gees and Migrants Program have been grantingdirect cost-free legal assistance to foreignerssince 1992. Until now, the most numerous groupof the foreigners are asylum seekers. The majo-rity of the activities of the Program have alwaysconcerned asylum seekers and their main pur-pose was to ensure better protection of the rightsof these persons. The Dublin project is comple-mentary to other international projects and ac-tions, that the Foundation was involved in.

It is crucial to stress, that Poland is strongly af-fected by the Dublin Regulation. According tothe statistics of the Office for Aliens, from the be-ginning of the year 2011 until mid-March 2011there were already 845 applications directed toPoland to take responsibility for the examinationof the asylum claim, 805 positive decisions hasbeen made in this regard and 335 persons weretransferred. Poland is a country responsible fortaking back the asylum seekers coming from theEast, who went to another European countrythrough its territory.

As the experience of the lawyers of the Programshows, the majority of these asylum seekers areunaware that they cannot move freely within Eu-rope and have no information about the groundson which they are transferred to a particular


country. An information brochure for asylum see-ker turned out to be a very useful tool in our dailywork. Translated to several languages, it allowedus to inform asylum seekers about the main as-pects of the Dublin Regulation, also before theydecided to leave the territory of Poland.

In conclusion, the project is relevant to the Foun-dation because it involves strengthening the pro-tection of the rights of asylum seekers, which isa main purpose of numerous activities that theLegal Assistance to Refugees and Migrants Pro-gram undertakes. It also provides for a possibilityto monitor and evaluate the implementation of theDublin Regulation, by which Poland is strongly af-fected and allows for clarifying common miscon-ceptions held by asylum seekers regarding themain aspects of the Regulation.

JesuitRefugee ServiceROMANIAJesuit Refugee Service Romania (JRS) is an in-dependent, humanitarian non-governmental or-ganisation, supported by contributions from pri-vate individuals and foundations worldwide. Itforms part of JRS International, whose office is inRome and JRS Europe, whose Regional office isin Brussels. JRS Romania was founded in Bu-charest, in 1996, in response to the increasingnumber of refugees and the needs with whichthey were and are continually confronted.

The Mission of JRS is to accompany, serve anddefend the rights of refugees, forced migrantsand asylum seekers, advocating on their behalffrom their first arrival in Romania until they are sa-tisfactorily settled. This mission embraces all per-sons who are driven from their homes by conflict,humanitarian disaster or violation of human rights.JRS’ priority is to give particular attention to thosewhose needs are most urgent and unattended byothers or simply forgotten – generally called “des-titute persons”. In spite of the obstacles we en-counter in our work with this category of persons,from a social, legal and financial point of view,JRS considers that destitute persons deserveour focused attention, deprived, as they are, ofbasic human rights, social policies and often ofNGO assistance.

“Destitution” describes a situation of total lack ofmeans to meet one’s basic needs such as shel-ter, food, health or education as a consequenceof the State’s policy which excludes groups of mi-grants from enjoying basic rights and receiving of-ficial assistance or severely limits their access tosuch assistance. Simultaneously, it deprives themof any opportunity to improve their situation in theforeseeable future, thus resulting in a continuingdenial of the dignity of the person.

JRS is also focused on forced migrants and per-sons kept in detention centers, mostly, rejectedrefugees.Forced migrant: A “forced migrant” is a personwho is living in a country without holding thiscountry’s citizenship and cannot return to thecountry of origin in safety and dignity because ofreasons such as danger of political persecution orother human rights violations, danger for life orhealth, lack of travel documents, or lack of trans-port possibilities.Migrants who have applied for asylum and hadtheir application rejected receive an order to leaveRomanian territory. However, the majority, for ob-jective reasons, cannot return to their country oforigin and they apply for tolerance in Romania orsubmit a new asylum application.

Those who do not apply for status become un-documented persons and, when found, are takeninto public custody by the State i.e. into PublicCustody Centers. In addition, not all personswho apply for tolerance are granted this tempo-rary stay permit.In this context, JRS Romania is working to ensurethat failed migrants can access the basic socialrights including accommodation, that persons inneed of protection or forced to return can bene-fit of free legal counseling and that their voices areheard.Thus, JRS Romania is still the only NGO involvedin providing accommodation, social and legal as-sistance for destitute persons – rejected refu-gees ( in public custody or on Romanian territory).

JRS Romania is runningthe following activities:- Legal and social assistance in public custodycenters and at Pedro Arrupe Centre for detai-nees and destitute refugees

- Providing Country of Return Information to la-wyers, judges and not only in cases of detai-nees and destitute refugees

- Advocacy and research on detention and des-titution

- Providing temporary accommodation at PedroArrupe Centre for destitute refugees

- Social assistance and counseling for destituterefugees

- Medical assistance and emergency aid for des-titute refugees

- Cultural and leisure activities for destitute refu-gees and detainees (including the internetroom)

- Educational courses for destitute refugees (Ro-manian classes, PC courses, etc.)

- Integration assistance for the resettled refu-gees and persons with a form of protection

Relevance of the projectfor JRS activities:Asylum-seekers with file pending in the Dublinprocedure, awaiting the transfer in another coun-try, are taken in public custody in order to rein-force their return.


Former asylum-seekers, whose asylum proce-dure in Romania ended while they abscondedand were returned to Romania under Dublin pro-cedure, were taken in public custody.Most of the cases assisted by JRS Romania underthis project were foreigners in public custody cen-tre, whose asylum procedure has ended whilebeing out of the territory. As they were taken in pu-blic custody in order to be removed from the terri-tory, and usually had nomeans to hire a lawyer, JRSassistance was the only one available, for free.

Comisión españolade ayuda al refugiadoSPAINCEAR’s starting point took place during the tran-sition to democracy, but it had started operatingin 1973. CEAR’s activities basically aimed to de-fend and help people coming mainly from Chile,Argentina and Uruguay who were forced to leavetheir countries after instauration of dictatorships;and also to encourage policies to consolidateasylum rights which at the time in Spain wherenot even regulated.

In 1978 Spain became party to the GenevaConvention and the New York protocol on theRefugee Statute, International agreements of uni-versal extent on this issue.In 1979 CEAR was formally constituted.In May that year the first regulation concerning asy-lum was brought in, a decree regulating refugees’conditions in Spain; but this regulation is veryconcise and with no real contents. During these firstyears it survived thanks to the efforts of its memberstogether with the international support from orga-nizations like the ACNUR, Amnesty Internationaland the WUS (World University Service).In 1983 CEAR entered Spain’s General Budgetsfor the first time through agreements with thePublic Administration, and was in charge of ma-naging different governmental programs to assistasylum seekers and refugees as well as personswho had asylum granted.In 1984 CEAR carried out an essential task (pro-posals were forwarded with the ACNUR’s co-operation) in establishing the first Asylum Law,something that was acknowledged in the Law’sdescription of objectives. In 1984 CEAR acquireda structure similar to the present one.

From the beginning, CEAR’s work has been fo-cused on the need to defend the Right to Asylum.This was its original main aim and continues to beso in the present day. This protection implies, firstof all, acquiring a stable legal statute and se-condly, to acknowledge these persons’ socialrights in our country.

There is an essential feature to CEAR from its ini-tial moments: its plurality. From its very beginning,

CEAR has intended to represent all the social or-ganizations that believe the right of Asylum to bea fundamental right in all democracies.CEAR’s goals are essentially those of the 1951Geneva Convention and the 1967 New York Pro-tocol, as well as those of the various internationalagreements for the protection of human rights to-gether with the Spanish juridical ordinance in ac-cordance with these.

Regarding refugees, a first step to re-esta-blish their rights and to guarantee their di-gnity as human beings is to acknowledgethe need of international protection and of alegal statute.

PROJECT´S RELEVANCE TO CEARSpain is the first entry point to the EU for manyasylum seekers. The fact that the Dublin II Regu-lation is in itself problematic as it often leaves theregulation of issues to the different national le-gislations raises the relevance of this project toCEAR in order to inform asylum seekers underthe Dublin procedure concerning the asylum sys-tem in Spain, ensure access to the procedure, re-ception, material assistance, support servicesand ensure protection to asylum seekers.

We believe that until the Dublin II Regulation’s ne-gative effects disappear the associations in thecountry concerned can be really useful to ensurea food flow of information concerning the speci-fic situation of the vulnerable asylum seekerstransferred under the Dublin procedure, in orderto ensure continuity of assistance and follow-upfor these transferred individuals between thetransferring country and the receiving country.The website created within the framework of theproject is a very important tool to create a net-work of national contact points in charge of thefollow up of asylum seekers transferred under theDublin regulation and to develop several infor-mation and follow-up assistance.

SwissRefugee CouncilSWITZERLANDThe Swiss Refugee Council, established in 1936,is a non-governmental association that is politi-cally and religiously independent and serves asan umbrella association for all the importantSwiss relief organizations working for refugeesand asylum seekers. Its member organizationsare Caritas (Catholic Aid Org.), HEKS (EvangelicAid Org.), SAH (Labour Aid), VSJF (Jewish AidOrg.), and Amnesty International, Swiss Section.The Swiss Refugee Council is committed to theprotection and rights of refugees in Switzerland,it calls and lobbies for fair refugee status deter-mination procedures, refugee integration and areturn in conditions of safety and dignity.


The protection department coordinates ap-proximately 40 legal aid offices for asylum see-kers throughout the country. The legal sectionprovides information, advice and support to legalrepresentatives through training and guidanceon best practices. They draft analytical papers ondifferent legal topics and asylum issues and ad-vocate asylum issues before authorities and po-litical or public stakeholders. They also coordinatethe presence of neutral observers who participatein asylum hearings. The country of origin analysisunit researches individual query requests, pu-blishes country reports, and thematic and policypapers in order to foster objective and fair trialsfor asylum seekers in Switzerland.

Relevance of the TransnationalDublin Project to OSARSince being enacted on December 2008 in Swit-zerland, the Dublin Regulation has become a si-gnificant factor in Swiss asylum practice. GivenSwitzerland’s geographic location, a large part ofasylum seekers receive a negative Dublin-deci-sion because they have passed through otherEuropean countries before arriving at the Swissborder. Consequently, questions arising from theapplication of the Dublin regulation have becomevery important for our member organizations whooperate legal advisory offices for asylum seekersclose to reception centers and in different can-tons. As an umbrella organization, OSAR’s role isto provide these legal advisory groups with ac-curate information and support. In order to gatherthe necessary information and expertise on thesituation in other Dublin member states as well asthe application of the Dublin Regulation, it is cru-cial for OSAR to exchange with other NGOs inEurope. This is especially true considering thatSwitzerland has been part of the Dublin systemfor only a relatively short period of time. Also, sha-ring jurisprudence and potential legal argumentsis helpful for OSAR’s advocacy work concerningthe implementation of the Dublin Regulation atthe national level. The network of NGOs set up bythe Transnational Dublin Project has facilitated anactive transnational exchange on legal questionsregarding the Dublin Regulation, practical pro-blems, and individual cases. The information andcontacts obtained through this project have beenvery helpful in OSAR’s routine work.

Furthermore, the informational brochures are auseful tool for the legal advisors of our memberorganizations in their daily consultation work, aswell as to OSAR’s legal staff when asked for ad-vice in Dublin cases. If the legal advisors deemthat the continuous support of especially vulne-rable asylum seekers is necessary, the individualfollow-up file can be a helpful means to commu-nicate the most important facts directly to theproject partner in the destination state.



EUROPEAN REFUGEE FUND

Project JLS/2008/ERFX/CA/1021Transnational advisory and assistance network

for asylum seekersunder a Dublin process

Follow-up fileAsylum seeker under the Dublin regulation

(and accompanying family members)

The individual follow-up file(automatic form/ available in english only)

Confidentiality requirement

This file contains confidential information which is intended only for useby the individual and organizations named in this file. You are hereby no-tified that any disclosure, copying, distribution of this file is strictly prohi-bited.

As an exception, this file shall be disclosed and transmitted by email to the coor-dinator, Forum réfugiés, who is in charge of centralizing this file within the pro-ject implementation framework. The same confidentiality requirement applies tothe coordinator. Nevertheless, the coordinator may use the data contained in thisfile in order to produce analytical reports, articles and statements provided thatthe coordinator does not disclose personal information such as the name andsurname of asylum seekers and family members.


FOR THE ADMINISTRATION OF THE CASE

File Reference: transferring country code Organization acronym file number

Referees

In the transferring state:

Member State:

Name and address of the organization assisting the asylum seeker:

Name/Surname (project worker involved in the case within this organization): /

Email:

Phone:

In the responsible state:

Member State:

Name and address of the organization assisting the asylum seeker:

Name/Surname (project worker involved in the case within this organization): /

Email:

Phone:

Was this file filled out during an interview with the asylum seeker?

Yes Date:

No

During the interview(s), was the asylum seeker assisted by an interpreter?

Yes No

Language used during the interview:


PERSONAL DATA OF THE ASYLUM SEEKER

Mother tongue:

Other languages (if appropriate specify the level of understanding for each language):

1.

2.

3.

IDENTIFICATION OF THE ASYLUM SEEKER

NAME/Surname: /

Gender:

Date of birth:

Place of birth:

Nationality:

Ethnic origin:

Religion:

Place of usual residence (specify if it is different from the country of origin):

Registration/recognition by refugee agency:

Any further information:

MEDICAL INFORMATION

Does he/she have immediate medical needs? Yes No

Details and current medication50 :

Doctor’s details:

INFORMATION ON HUMANITARIAN ASPECTS

Any specific vulnerability51 :

50 - Does he/she suffer from anymedical problems? If so, what is

the medical problem? Hashe/she received medical

treatment for this problem?Does he/she require ongoing

treatment for this medicalcondition? Has he/she received

a medical report on his/hercondition? Is there a copy

available? Has he/she receivedmedical assistance in the

transferring and or responsiblestate? Any information about

vaccines etc…

51 - For example (age (minor orelderly), disabled people,

pregnant women, single parentswith minor children, persons

who have been subjected totorture, rape or other serious

forms of psychological, physicalor sexual violence) which mayprevent the transfer or require

the presence of a family membereither in the requiring state or

in the required state.


SPECIAL LINK WITH (fill in the nameof a country): language, history…

ACCOMPANYING FAMILY MEMBERS

Name and Family link Location Immigration Dependent Educationsurname status 52 on ASE

/

/

/

/

/


OTHER FAMILY MEMBERS IN EUROPE

Name and Family link Location Immigration Dependent Educationsurname status 53 on ASE

/

/

/

/

/


OTHER RELEVANT INFORMATION:

52 - For example, in aprocedure, refugee status,subsidiary protection,naturalized, illegal migrant

53 - For example, in aprocedure, refugee status,subsidiary protection,naturalized, illegal migrant


PART I. Transferring state:situation assessment

Dates and locations of the interviews:

Reasons for leaving his/her country:

I. Reasons for application of the Dublin regulation

Route of the asylum seeker in Europe

1. Date when he/she left his/her country:

2. List of the countries crossed:

Country Length of time Detention Immigration fingerprinted Voluntarily/forcedStatus

Other relevant information/ outcome of applications/cases pending:

3. If it is a family, were they together all along the journey?

Yes

No Explain:

4. Did the asylum seeker return to his/her country of origin between his/her stays in Europe?

Yes If so, for how long?

No



II.Administrative situation of the asylum seeker in(Fill in the name of your country)

Status of asylum application

5. Place and Date of arrival

6. Formal date of asylum application to the competent authority:

Dublin procedure steps

7. Starting date of the Dublin procedure:

8. Obligation to report to the authorities:

9. Date of the request to take charge or take back:

10. Date of acceptance of the transfer by the required state:

11. Date of the notification of the transfer decision:

12. At the time of the decision of transfer, was he/she detained or imprisoned? Yes No


13. At the time of the decision of transfer, was he/she with his/her family? Yes No


14. Did he/she contest/appeal the announcement /decision of transfer? Yes No


15. Place and date when the transfer will take place (if known).

Information on the Dublin procedure

16. The information on the Dublin procedure was provided:

in written form

orally

17.When was the information given:

18. The information was provided in what language:

19. Did he/she understand the information: Yes No

20. Did the information include:

How the Dublin system works

The deadlines and effects foreseen

The responsible Member State for examining their claim

21. Did the asylum seeker receive appropriate information about the decision of transfer?

The grounds for the decision

Announcement of the decision of transfer

Information about the date of the transfer

Compliance with the deadline of transfer

22. Any other relevant information:


PART II. Responsible state: Follow-up

Dates and locations of the interviews:

I. Conditions of transfer

23. Method of the transfer:

Voluntary

Forced

24. How did he/she travel?

By himself/herself

Under escort

25. Did the authorities take his/her official documents?

Yes Which authority:

No

26. Was he/she allowed to bring personal property?

27. His/her experiences during the transfer:

II.Conditions of reception of the asylum seekerin (Fill in the name of your country)

28. First person or organization met upon arrival in the responsible state:

29. Was he/she detained?

Yes Where and how long?

No

30. Was he/she in contact with an NGO?

Yes Which one:

No

31. Any further information

III. Administrative follow-up

32. Did he/she apply for asylum?

Yes when

No

Details of application/reactivation:


33. Was the asylum application examined under a prioritized or accelerated procedure?

Yes If so, on what grounds:

No

34. What is the final decision on the asylum application?

Protection granted

refugee status

subsidiary protection

protection on humanitarian grounds

Others Explain:

Not granted Explain:

IV. Social, medical, psychological support(for the asylum seeker awaiting a pending claim)

35. Accommodation (type & location):

36. Are his or her social rights guaranteed in practice? Yes No


37. Practical difficulties in obtaining social benefits:

38. Does he/she benefit from medical and psychological care services if required?

Yes No


39. Does he/she have any comments about the services provided?

40. Does he/she have work or/and attend a (professional) training session?

Yes specify

No

41. Do his/her children have access to school? Yes No


COMMENTS:

By the partner organization in the transferring state:

By the partner organization in the responsible state:


Project JLS/2008/ERFX/CA/1021Transnational advisory and assistance networkfor asylum seekers under a Dublin process

Authorization to use personal data

I, …………………………………………………, declare that the information contained in the follow-up

form reference …………………………..has been provided by me. I understand the purpose of this form

and I accept it to be transmitted to …………………………….…..and to the project coordinator Forum

réfugiés.

Place: ……………………………………………………..

Date: ……………………………………………..………..

Signature: ……………………………………………….

Context:

Your personal data are used in the context of the Transnational Dublin project “Transnational network forcounseling and assisting asylum seekers under a Dublin process”, financed by the European Refugee Fundand coordinated by Forum réfugiés in partnership with 12 NGOs around Europe.The objective of this project is to ensure continuity in the legal, social and practical support provided toasylum seekers being transferred to another member state according to the European Union Dublin re-gulation.The individual follow-up form shall enable NGOs assisting the asylum seekers under a Dublin process toassess the legal, social and medical situation of an individual asylum seeker and his/her family. Using theinformation provided by the network member in the transferring state, the network member in the recei-ving state will be able to evaluate the asylum seeker’s situation and prepare his/her arrival, thus avoidingany break in the legal, medical and social care.

Conditions:

The personal data are given on a confidential basis and are intended only for the use of the asylum see-ker, Forum réfugiés and organizations assisting the asylum seeker in both the receiving and the transferringstate.

Autorization to be signedby the asylum seeker(available in english only)


Dublin system

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms fordetermining the Member State responsible for examining an asylum application lodged in one of the Mem-ber States by a third-country national [Official Journal L 050 , 25/02/2003 P. 0001 – 0010]

Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the ap-plication of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determi-ning the Member State responsible for examining an asylum application lodged in one of the MemberStates by a third-country national [Official Journal L 222 of 5.9.2003].

Council Regulation (EC)No 2725/2000 of 11 December 2000 concerning the establishment of “Eurodac”for the comparison of fingerprints for the effective application of the Dublin Convention. [Official JournalL 316 of 15.12.2000]

Général documents

“Dublin cases” fact sheet, ECHR, http://www.echr.coe.int/NR/rdonlyres/26C5B519-9186-47C1-AB9B-F16299924AE4/0/FICHES_Dublin_Cases_EN.pdf

Comments on the European Commission Proposal to recast the Dublin Regulation, ECRE, 29 April 2009http://www.ecre.org/files/ECRE_Response_to_Recast_Dublin_Regulation_2009.pdf

Reflection note on the evaluation of the Dublin system and on the Dublin III proposal, March 2009,http://www.ulb.ac.be/assoc/odysseus/CEAS/PE410.690.pdf

UNHCR comments on the European Commission's Proposal for a recast of the Dublin Regulation,18March 2009, http://www.unhcr.org/refworld/docid/49c0ca922.html

Meijers Committee, Note on the proposals to amend the Dublin Regulation, COM(2008) 820 final of3.12.2008 and the Reception Conditions Directive, COM(2008) 815, 18 March 2009 http://www.sta-tewatch.org/news/2009/mar/eu0dublin-reception-meijers-cttee.pdf

Proposal for a recast of Dublin Regulation, 3 December 2008,http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0820:FIN:EN:PDF

Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered, ECRE, March 2008,http://www.asyl.at/fakten_1/ECRE_Dublin_Reconsidered_Mar2008.pdf

Dublin mechanism obstacle to future European Asylum System, ECRE, 31 March 2008,http://www.ecre.org/files/Dublin%20mechanism%20obstacle%20to%20EAS.pdf

Report on the evaluation of the Dublin system , 6 June 2007, http://europa.eu/rapid/pressRelease-sAction.do?reference=MEMO/07/227

The Dublin Regulation: Twenty Voices - Twenty Reasons for Change, ECRE, 20 March 2007,http://www.ecre.org/files/Dublin_20_voices.pdf

Selection of documentsrelated to the Dublin regulationand its application

The situation in Greece

European Committee for the Prevention of Tortureand inhuman or degrading treatment or punish-ment (CPT) report on the visit to Greece 17November 2010

UNHCR Submission for the Office of the HighCommissioner for Human Rights' Compila-tion Report - Universal Periodic Review:Greece November 2010

UN Special Rapporteur on Torture preliminaryfindings on his mission to Greece 20 October2010

UNHCR oral intervention at the EuropeanCourt of Human Rights Hearing of the caseM.S.S. v. Belgium and Greece 1 September2010

Amnesty International, Greece: Irregular mi-grants and asylum-seekers routinely detainedin substandard conditions July 2010

European Court of Human Rights, A.A. v. Greece,Application No. 12186/08 22 July 2010

Greek Council for Refugees The bad practices ofthe asylum process as recorded in a fax fromGCR to the competent authorities of the Greekstate July 2010

Council of Europe Commissioner for HumanRights, Thomas Hammarberg, Third Party Inter-vention, M.S.S. v. Belgium and Greece 31 May2010

Council of Europe Commissioner for HumanRights, Thomas Hammarberg Third Party Inter-vention, Ali & Ors v the Netherlands andGreece 10 March 2010

Amnesty International, The Dublin II Trap, trans-fers of asylum-seekers to Greece March 2010

UNHCR submission in the case of Ali & Ors vthe Netherlands and Greece February 2010

UNHCR Observations on Greece as a countryof asylum December 2009

Greek non-governmental organizations Report tothe European Commission by Greek NGOs oninfringement of EC Directive on minimumstandards for granting and withdrawing refu-gee status16 November 2009

Dutch Council for Refugees et al Joint complaintto the Commission concerning failure to com-ply with community law: FailingMember State:Greece 10 November 2009

Human Rights Watch no Refuge: Migrants inGreece 1 November 2009

NOAS, Norwegian Helsinki Committee & AITIMAOut the Back Door: The Dublin II egulationand illegal deportations from Greece October2009

European Court of Human Rights S.D. v. Greece,Application No. 53541/07 11 June 2009

Austrian Red Cross & Caritas Austria The situa-tion of persons returned by Austria to Greeceunder the Dublin Regulation May 2009

The Greek Council for Refugees The Dublin Di-lemma in Greece – “Burden shifting” and put-ting asylum seekers at risk 15 February 2009

Human Rights Watch Left to Survive: Systema-tic Failure to Protect Unaccompanied MigrantChildren in Greece December 2008

Council of Europe Commissioner for HumanRights, Thomas Hammarberg report followinghis visit to Greece, 8-10 December 2008 De-cember 2008

Human Rights Watch Stuck in a Revolving Door:Iraqis and Other Asylum Seekers andMigrantsat the Greece/Turkey Entrance to the Euro-pean Union November 2008

ProAsyl “The situation in Greece is out ofcontrol” October 2008

NOAS, Norwegian Helsinki Committee & GreekHelsinki Monitor A gamble with the right to asy-lum in Europe - Greek asylum policy and theDublin II Regulation April 2008

UNHCR Position On The Return Of Asylum-Seekers To Greece Under The "Dublin Regu-lation" April 2008

UNHCR Unaccompanied minors seeking asy-lum in Greece April 2008

ECRE Spotlight on Greece - EU asylum lotteryunder fire April 2008

Council of Europe Report to the Government ofGreece on the visit to Greece carried out bythe European Committee for the Prevention ofTorture and Inhuman or Degrading Treatmentor Punishment (CPT) February 2008

ProAsyl The truth might be bitter, but it must betold - The Situation of Refugees in the Ae-gean and the Practices of the Greek CoastGuard October 2007

EU Parliament Report from the LIBE CommitteeDelegation on the Visit to Greece (Samos andAthens) July 2007


TRANSNATIONALDUBLIN PROJECTTransnational advisory and assistance networkfor asylum seekers under a Dublin processIn order to overcome the shortcomings of the Dublin II Regulation, theFrench association Forum réfugiés coordinates a 18-month projectwhich aims to develop tools for comprehensive and reliable informa-tion on the procedure of the Dublin Regulation and the asylum natio-nal systems and monitoring tools for asylum seekers placed under theDublin procedure.

The main objective of this project is to create a european network ofassociations providing follow-up and assistance to asylum seekers intheir charge, finding themselves under the Dublin procedure.

Dublin II Regulation: Council Regulation No. 343/2003 of 18 February2003 establishing the criteria and mechanisms for determining theMember States responsible for examining an asylum applicationlodged in one of the Member States by a third-country national.

European partner organizations:

Asyl in Not (Austria), Italian Refugee Council (Italy), Comisión Españolade Ayuda al Refugiado (Spain), Danish Refugee Council (Denmark),Dutch Council for Refugees (Netherlands), Forum réfugiés (France),France Terre d’Asile (France), Helsinki Foundation for Human Rights(Poland), Hungarian Helsinki Commitee (Hungary), Irish RefugeeCouncil (Ireland), Jesuit Refugee Service (Romania), Organisation Suissed’Aide aux Réfugiés (Switzerland), Flemish Refugee Action (Belgium).

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Project website � http://www.dublin-project.eu