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WG Asylum-Immigration > Meetings > Ljubljana, 28-29 June 2007 > Dublin regulation or readmission agreements ? (Applicability of Article 16(1(e) of the Dublin Regulation)

Dublin regulation or readmission agreements ? (Applicability of Article 16(1(e) of the Dublin Regulation)

The Council Regulation (EC) no. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member States responsible for examining an asylum application lodges in one of the Member States by a third-country national (hereinafter referred to as the Dublin Regulation)1 contains also provisions on admission or readmission of the asylum seeker.
Concerning the readmission cases (Art. 16 par. (1)(e) of the Dublin Regulation Hungary is facing more and more often with conflicts of Dublin Regulation and interstate readmission agreements. Since the end of 2005 the problem has already been put into agenda but a coherent solution could not be reached among the Dublin Member States.

According to the Hungarian domestic legislation a submission of asylum application in Hungary is a prerequisite to conduct the Dublin procedure - that is to send a request for take charge or take back of the foreigner. Therefore, it is not possible to start Dublin procedure, if a person did not lodge an asylum application in Hungary. Similarly, there is no legal base to render or to give effect to a Dublin transfer decision in case that applicant has withdrawn his/her asylum application.

Thus, asylum seekers often take advantage of this legal situation. They avoid the realisation of their transfer to the responsible Member State, which is prepared to receive them by withdrawing their asylum applications in the stage of the judicial review and later on they apply again for asylum. Upon the withdrawal of the asylum application the Dublin decision has to be withdrawn as well and the Dublin procedure has to be terminated. If the foreigner does not have any legal permission (visa or residence permit) to stay in the territory of the Hungarian Republic, she/he can be expelled on the basis of readmission agreements by the immigration authority, which is a different authority from the authority, which is responsible for Dublin and substantive refugee determination procedure.

The reason that an asylum application in Hungary is a prerequisite to the Dublin transfer is the Hungarian official translation of Article 4 (1) of the Dublin Regulation, which states in its English version that “the process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum is first lodged with a Member State.” However, according to the Hungarian translation it is not /.../“with a Member State”/.../ but /../“with the Member State”/.../ .

Other Member States who accepted the original “with a Member State” version (for example: Czech Republic, Slovak Republic, Austria and Germany) consider that it is sufficient if a foreigner lodged an asylum application in any of the Member States. In that case the Member State can start a Dublin procedure as soon as the responsible authority finds out that such person is in the territory, even  if that person did not file an asylum application in the given Member State and months has been passed since his/her asylum application was lodges in the first Member State.

This view considers that readmission agreements can be applied only where not any application for asylum has been lodged in the territory of any of the Dublin Member States.

In reality this interpretation leads to the following practice: a foreigner enters the territory of MS-A, but not seek asylum and (s)he is caught by the border police. If the hit of the Eurodac system shows that this foreigner already sought asylum in MS-B border police turns to its national Dublin Unit. This unit sends a take back request to MS-B and it will not use the readmission agreement between the two countries, but rather the Dublin Regulation for the practical takeover.

According to the reading of the most Member States – not including Hungary – withdrawal of the asylum application in the requesting country does not have effect on the Dublin transfer. This view is based on the text of Art. 5 (2) of the Dublin Regulation which states that the Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. According to this interpretation, the date for the first application is the fixed moment for determining responsibility. Further changes of the circumstances cannot lead to different outcome. Therefore, in these Member States it is not possible to withdraw an application for asylum, or at least there is no impact of the withdrawal on the realisation of the transfer to the responsible Member State.

Common Asylum system has not been created in the European Union yet and the Hungarian position on the necessity of an asylum application in the requesting country is different from the above mentioned. According the Hungarian interpretation of the Dublin regulations a Dublin procedure could only be started if an application for asylum was lodged within the territory of the Member State who plans to send a request. In our reading the Dublin system presupposes an asylum claim in the requesting Member State, so Dublin Regulation is not applicable if there was not an application lodged there or if an application has been withdrawn.

However Dublin Regulation also contains time limit for the requesting Member state to send a take charge request to another Member State (Art. 17  (1) of the Dublin Regulation). The same time limit does not exist for sending a take back request, but even in this case the “as soon as” criteria set by Art. 4 (1) should be considered.

Accepting the view of the other Member States without preconditions would lead to an alien policy-like interpretation of the Dublin system that could definitely undermine the real concept of the legislators of the Regulation and overrule the system of readmission agreements.
The main question is whether their interpretation – that states neither any time-limit for take back requests, nor presumes an asylum application in the requesting Member State – could be understood and interpreted from the Dublin Regulation?

Harmonisation of interpretations would be of utmost importance in the future uniform application of the Dublin Regulation.