A brief guide to Dublin II
Posted On: 29 September 2010
Author: Kenneth H Forrest
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Kenneth Forrest, Advocate, specialises in various aspects of discrimination law, particularly immigration and asylum, as well as employment law.
He is a member of SILPA - the Scottish Immigration Law Practitioners Association - which meets monthly and consists of immigration lawyers (both solicitors and advocates) in Scotland. The group exists to promote better knowledge and understanding of asylum & immigration law and practice in Scotland and as this is an area which is constantly changing one of the biggest concerns of the group is to keep up with these changes.
The paper below was presented at SILPA's meeting in August 2010.
COUNCIL REGULATION (EC) No 343/2003 (Dublin II)
1. Introduction: the Regulation was signed on 18th February and came into effect on 1st September 2003. It is binding on all EC Members States and also on Norway and Iceland. According to the Preamble, it was enacted as part of an ongoing attempt to establish a Common European Asylum System, based on a consistent application by every signatory of the Geneva Convention and other relevant provisions. The problem it tries to address is the state responsible for dealing with an asylum claim in which an asylum seeker has entered and claimed asylum in more than one member state. Its main provisions concern identifying the Member State responsible for examining and dealing with an application for asylum, considering the circumstances in which an application is to be transferred and examining the evidence on the basis of which responsibility is determined.
2. Provisions: divided into seven parts (or Chapters), the Regulation consists of:-
• Chapter 1 – Definitions (Articles 1,2): the idea of a Third Country is introduced early. A Third Country national is someone who is not a national of a member state. Note that family member does not include a brother/sister, only spouse, child, or parent.
• Chapter 2 – General Principles (Articles 3,4): member states are entitled to deal with any application themselves although they may not be the member state formally (per the Regulation) responsible. (Article 3). The process of determining the member state responsible begins as soon as the asylum seeker/Third Country national has applied for asylum (Article 4).
• Chapter 3 – Hierarchy of Criteria (Articles 5-14): the Member State responsible is the one in which a family member of the asylum seeker has been allowed to reside, or in which (s)he has lodged a claim to be allowed to reside (Articles 6-8), failing which the responsible state is the one which has issued some form of visa/equivalent documentation to the asylum seeker (Articles 9,11,12). Article 10 sets out the sort of evidence (a common finger – print base – the “EURODAC” system) which states are permitted to use in establishing which, if any, criteria exist. Article 14 provides that if strict application of these criteria would result in the separation of members of the same family who are all claiming asylum, the member state responsible will be the one responsible for dealing with the largest number of family members, failing which the state responsible for dealing with the claim for the oldest member of the family. If none of the criteria referred to are present, then the Member state responsible for examining and dealing with the claim is the one which the applicant first entered. (Article 13).
• Chapter 4 – Humanitarian Clause (Article 15): continuing to acknowledge the importance of family, this clause encourages states to keep families together if the asylum seeker is dependant on the assistance of another family member (e.g., on account of pregnancy, old age, serious illness).
• Chapter 5 – Taking Charge and Taking Back (Articles 16-20): the state in which the asylum application was initially lodged (the sending state)has three months within which to formally request another member state (the receiving state) to take the asylum seeker back, while the receiving state has one month (or two weeks if the sending state’s request is based on EURODAC information) in which to acknowledge the “taking back and taking charge” request, failing which it will be deemed to have accepted the sending state’s request (Articles 16, 20). The sending state has six months to send the asylum seeker to the receiving state. The evidence on the basis of which the sending state reaches its decision is described in Article 18, referring to proof and circumstantial evidence.
• Chapter 6 – Administrative: provides for oversight of the arrangements and the establishment of some form of committee structure.
• Chapter 7 – Final: mentions the importance of cooperation between Member States and the sharing of relevant “proof and circumstantial evidence”, referring again to EURODAC (see Article 18).
(Continued... For full article please click on the link at the top of the page.)