1. Dublin II & III

2. Dublin III und Europarecht
Contents
Overview
Criteria for determining the responsible EU-State
„Selbsteintrittsrecht“
Changes from Dublin II to Dublin III
The Procedure/Options for intervention
Resume
Further Information
Dublin III und Europarecht

3. Dublin III und Europarecht
A. Overview:
What? (What is the Dublin-Regulation?)
Dublin regulation regulates which Dublin Member State is responsible for asylum seekers’ applications. Dublin III regulates applications after
Who? (Who is part of the Dublin-Regulation?)
27 EU member states, Island, Norway, Switzerland (but the EU has no influence on the standards there)
Why? (Why does the Dublin-Regulation exist?)
Criminalisation, insecurity of the asylum seekers
EU-wide competition, which member state can receive less asylum seekers
Who? (Who does it effect?)
Asylum/subsidiary protection seekers which apply for asylum in more than one state which is part of Dublin
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4. Dublin III und Europarecht
A. Overview
Eurodac:
European fingerprint database. Every fingerprint of persons above the age of 14 is saved when this person:
Applies for asylum
Gets caught when “illegally” crossing EU-Borders
Gets caught while “illegally” staying in an EU-State
BAMF:
Bundesamt for migration and refugees (Bundesamt für Migration und Flüchtlinge), responsible for the Dublin procedure
Dublin III und Europarecht

5. Dublin III und Europarecht
A. Overview
ECHR:
European Court of Human Rights (Europäischer Gerichtshof für Menschenrechte):
Location: Strasbourg, France
Established by the European Convention on Human Rights
Applications alleging that one of the 47 contracting states has breached the Convention of the Human Rights
EUCJ:
Court of Justice of the European Union (28 Member States) (Europäischer Gerichtshof):
Location: Luxembourg
Highest Court in the European Union in matters of European Union Law
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6. Dublin III und Europarecht
B. Criteria for determining the responsible state
General principles:
The State who let asylum seekers/subsidiary protection seekers in (Art. 12 DIII) or was not capable of preventing them from coming in (Art. 13 DIII) is responsible for their applications.
The Dublin III procedure starts when a person reaches in an application for asylum/application for subsidiary protection in one of the 27 EU Member states.
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7. Dublin III und Europarecht
B. Criteria for determining the responsible state
I. Minors (<18years, in dubio pro minor) accompanying the asylum seeker (Art. 20 (3))
share the legal fate of their parents
II. Unaccompanied minors (Art. 8)
Possibility to get together with legally present parent or guardian
new Art. 8 Abs. 2, legally present relative: aunt, uncle or grandparent
III. Family membership (Art. 9 and 10)
Family members can claim that the member state in which a family member is already allowed to reside (asylum) is legally responsible for them.
Criteria:
Family member (defined on the following page)
Legal residence (asylum or application for asylum)
Written claim by the asylum applicant
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8. Dublin III und Europarecht
B. Criteria for determining the responsible state
Family Member according to Art. 2 is: - the spouse (Ehegatten) of the applicant or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals, - the minor children of couples referred to in the first indent or of the applicant, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law, - when the applicant is a minor and unmarried, the father, mother or another adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present, - when the beneficiary of international protection is a minor and unmarried, the father, mother or another adult responsible for him or her whether by law or by the practice of the Member State where the beneficiary is present.
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9. Dublin III und Europarecht
B. Criteria for determining the responsible state
IV. Visa or valid residence document
The state that issued the document is responsible
V. „Irregular“ crossing of EU borders (Art. 12)
The state of the crossed border is responsible for 12 months
1. Example:
A refugee crosses the border to Poland “illegally” on Then he stays there for a couple of months “illegally”. Later he goes to Germany and gives in an application on Who is responsible?
 Germany
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10. Dublin III und Europarecht
B. Criteria for determining the responsible state
2. Example:
Same case, but the Refugee gets caught by the polish police. In order not to get deported (abgeschoben) he applies for asylum. Then he goes to Germany and applies there for asylum.
Now Poland is responsible, because the first application was there and it was before the ending of the 12 months.
VI Legale/visumfreie Einreise (Art. 14)
If there is no Visa needed to go to an EU Member State, then this State is responsible.
VII. Crossing border by plane/transit area of airports (Art. 15 DIII)
A Member State is also responsible for applications that are put in by refugees in airport transit areas.
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11. Dublin III und Europarecht
B. Criteria for determining the responsible state
VIII. Dependent persons (Art. 16)
If an applicant is because of
-pregnancy,
-a new-born child,
-serious illness,
-severe disability or
-old age
dependent on the assistance of his or her child, sibling or parent “legally” resident in one of the Member States, or the other way round,
Member States shall keep or bring together these persons.
Additional requirements are:
- that the family ties already existed in the country of origin,
- that the child, sibling or parent or the applicant is able to take care of the dependent person and
- that the persons concerned express their desire in writing .
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12. Dublin III und Europarecht
B. Criteria for determining the responsible state
VIII. Dependent persons (Art. 16)
Where is the difference to the family member articles?
Also siblings are included
The norm shall strengthen the protection of the family even when the family member articles would lead to a seperation of the family
„Legally resident“ seems to be broader than legally resident because of international protection or application for protection. Unfortunately Duldung is formally no title of „legal residence“.
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13. Dublin III und Europarecht
B. Criteria for determining the responsible state
VIII. Dependent persons (Art. 16)
Problematic constraints in the Article
- Constraint that family ties must have existed in the country of origin
ECHR (Hode and Abdi vs. UK): A similar exception in UK law is a violation of Art. 8 EHRC (family life) in connection with Art. 14 EHRC (non discrimination rule). Therefore also the EU regulation could be an EHRC violation.
- The Article is limited to children, siblings and parents of the applicant
EUCJ (Rs. C-245/11, v ): In this judgement the EUCJ also included other relatives (grandchildren and daughter-in-law). In view of this judgement the new article is a step back. In view of the human right on family unit it is highly problematic.
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14. Dublin III und Europarecht
B. Criteria for determining the responsible state
VIII. Dependent Persons (Art. 16)
Problematic constraints in the Article
- “is able to take care”:
If that would mean that the person is able to provide the other persons living it would be very restrictive. There are reasons why in our oppinion this is not the intention of the Article.
the German translation only speaks of “unterstützen” (support)
The Article also means the case that a person that seeks asylum in a Dublin State is able to take care
The Article would otherwise be inefficient.
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15. Dublin III und Europarecht
C. „Selbsteintrittsrecht“ = Discretionary Clause
Article 17 Discretionary clauses 1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation. The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility.
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16. Dublin III und Europarecht
C. Obligation for„Selbsteintritt “
Article 2 (2) DIII Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible. = Obligation to examine asylum application even if the concerned state is not „responsible“ according to Dublin III
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17. Dublin III und Europarecht
C. Obligation for„Selbsteintritt “
Judgements and problematic countries: Greece : („Abschiebestop“ by the Bundesinnenministerium, also judgements by the EUCJ and ECHR), several german courts accepted an individual right on „Selbsteintritt“ Italy: Stop of deportation by VG Frankfurt Hungary: critisised by the UNHCR for lagerconditions, physical abuses and enforced medication. VG Stuttgart: „systematical flaws“ stop of deportation Malta: ECHR judgement makes clear that imprisonment of refugees in Malta is inhuman treatment and a violation of human rights. examples for systematic flaws in the asylum procedure and reception conditions. Cyprus: ECHR judgement (M.A. vs. Cyprus) on a violation against the right on effective legal remedy and unjustified imprisonment. The Judgement only refers to a single case, but in our oppinion it can be argued that it is just an example for the systematic flaws in the asylum procedure there.
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18. Dublin III und Europarecht
D. Changes from Dublin II to Dublin III
Scope: application also on seekers of subsidiary protection:
Subsidiary protection applies in cases where asylum does not apply, but there are severe threats for freedom, limb or life in the country where the refugee shall be deported to.
Right to get information Art. 4 DIII
Personal conversation Art. 5 DIII (In a timely manner and before the transfer decision)
Guarantees for minors Art. 6 DIII
Art. 26 III Delivery (Zustellung) of Zuständigkeitsbescheid
Art. 27 DIII appellate (temporary legal protection = Einstweiliger Rechtsschutz)
Eurodac enlargement
Dublin III und Europarecht

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

20. Petititon to Bundestag
The other Dublinstate gets responsible. Before the Deportation the BAMF has the oppurtunity to do a Selbsteintritt
Selbsteintritt
No Selbsteintritt
Petititon to Bundestag
BAMF creates a draft of the Bescheid and gives the file to the Zentrale Ausländerbehörde which organises deportation
Transfer not possible within the deadline
- Unfit to travel (medical certificate)
6 months (Art. 29 DIII)
1 year when imprisonment of refugee hinders deportation
18 months when the refugee absconds
Einstweiliger Rechtsschutz
Klage
Bundestagspetititon to get the State to do a Selbsteintritt
Landtagspetitition
Transfer to other Dublinstate
Starting the asylum procedure in Germany
Asylumprocedure in other Dublinstate
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21. Dublin III und Europarecht
Further Information
Our material (script and law texts) and this presentation will be available on: Leaflet on Dublin 2 and the changes by Dublin III (only in german) Overview on german court decicions
Dublin III und Europarecht