The objective of Council Regulation (EC) No 343/2003 of 18th February 2003 (Dublin II regulation) is to establish the criteria and mechanisms to determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third - country national. The aims of this regulation are to identify only one member State responsible, to establish time limit for determination it and to prevent “asylum shopping”.
The criteria for determining the Member State responsible are to be applied in the order in which they are presented in the Regulation and on the basis of the situation existing when the asylum seeker first lodged his/her application with a Member State.
They are the following:
1) criteria related to the principle of family unity.
Where the asylum seeker is an unaccompanied minor, the Member State responsible for examining his/her application is the Member State where a member of his/her family is legally present. In the absence of a family member, the Member State responsible is that where the minor has lodged his/her application for asylum.
2) criteria related to the issuance of residence permits or visas.
Where the asylum seeker is in possession of a valid residence document or visa, the Member State that issued it will be responsible for examining the asylum application.
3) criteria related to illegal entry or stay in a Member State.
Where the asylum seeker has irregularly crossed the border into a Member State, that Member State will be responsible for examining the asylum application.
4) criteria related to legal entry in a Member State.
Where a third - country national applies for asylum in a Member State where he/she is not subject to a visa requirement, that Member State will be responsible for examining the asylum application.
5) application in an international transit area of an airport.
Where a third-country national applies for asylum in an international transit area of an airport of a Member State, that Member State shall be responsible for examining the application.
6) default criteria.
If no Member State can be designated as responsible for examining the asylum application, the first Member State with which the asylum application was lodged will be responsible for examining it.
In addition, the Dublin II regulation contains an humanitarian clause, specific rules to take charge or take back asylum seekers and to exchange personal data concerning them.
In conclusion, it must be remembered the Council Decision 2001/258/EC of 15th March 2001 concerning the conclusion of an Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for determining the State responsible for examining a request for asylum lodged. Council Decision 2006/188/EC of 21 February 2006 and Council Decision 2008/147/EC of 28 January 2008 regarding similar agreeement between European Community, the Kingdom of Denmark and the Swiss Confederation.
Jurisprudence of the ECHR
of the more important decision of the Court of Justice of the European
Union regards the judgement in joined case C – 411/10 N.S. versus
Secretary of State for the home department and C – 493/10 M.E. and
others versus refugee application Commissioner, Minister for Justice,
Equality and law Reform.
In the context of those cases, both the Court of Appeal of England and Wales (United Kingdom) and the High Court (Ireland) ask the Court of Justice whether the authorities of a Member State which should transfer the applicants to Greece (the Member State responsible for the examination of the asylum application under the Regulation) must first check whether that State actually observes fundamental rights. They also ask whether if that State does not observe fundamental rights those authorities are bound to assume responsibility for examining the application themselves.
On 21 December 2011, the Court holds that the Member States may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.
The Court adds that the Member State which should transfer the applicant to the Member State responsible under the Regulation and which finds it is impossible to do so, must examine the other criteria set out in the Regulation, in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application. In that regard, it must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application.
Jurisprudence of the ECJ
The more important decisions of the European Court of human rights are the following.
1) T.I. versus the United Kingdom: the applicant, a Sri - Lankan national, left Germany and applied for asylum in the United Kingdom, since he feared that in the case of his expulsion, the German authorities would simply send him back to Sri Lanka. In the decision of 7th March 2000 the Court considered the application inadmissible, because the risk that Germany would return the applicant to Sri Lanka in violation of Article 3 had not been established.
2) K.R.S versus the United Kingdom: an Iranian national made his way to the United Kingdom after passing through Greece. In compliance with the Dublin II Regulation, the applicant alleged that his expulsion from the United Kingdom to Greece would be contrary to Article 3, because of the situation of asylum seekers in Greece. In the decision of 2nd December 2008 the Court considered the application inadmissible, because it must be presumed that Greece will comply with its obligations in respect of returnees. The Court also noted that Greece did not remove people to Iran.
3) M.S.S. versus Belgium and Greece: The case concerns an Afghan asylum seeker who lodged an asylum application in Belgium. Based on the Dublin II Regulation Belgium sent him back to Greece, the country through which he had irregularly entered the EU. In Greece he was placed in detention twice, during which he was subjected to degrading detention circumstances. After his release, he was abandoned to live on the streets without any support by the Greek authorities. The question was whether or not Belgium was allowed to transfer the applicant, being aware of the structural shortcomings in the asylum procedure and of the systematic problems in the detention and reception of asylum seekers in Greece.
On 2nd July 2009 the Court decided to apply Rule 39 against Greece,
to the effect that he would not be deported to Afghanistan pending the
outcome of the proceedings before the Court.
The court also adds the violations of article 3 (prohibition of inhuman or degrading treatment or punishment) by Greece; article 13 (right to an effective remedy) taken together with Article 3 by Greece because of the deficiencies in the asylum procedure followed in the applicant’s case; of article 3 by Belgium both because of having exposed the applicant to risks linked to the deficiencies in the asylum procedure in Greece and because of having exposed him to detention and living conditions in Greece that were in breach of Article 3; article 13 taken together with Article 3 by Belgium because of the lack of an effective remedy against the applicant’s expulsion order; article 46 (Binding force and execution of judgments): It was incumbent on Greece, without delay, to proceed with an examination of the merits of the applicant’s asylum request that met the requirements of the European Convention on Human Rights and, pending the outcome of that examination, to refrain from deporting the applicant.
In conclusion, it must be remembered that there are currently about 960 cases pending before the Court concerning the application of the “Dublin” Community law system to asylum seekers. They are mostly applications lodged against the Netherlands, Finland, Belgium, the UK and France.
 By Aurora Lento