Relevant Implications of Dublin II. Regulation in Slovenian Jurisprudence Boštjan Zalar
In the opinion of the Supreme Court of the Republic of Slovenia from November 2010 the purpose of the Dublin II Regulation is to prevent asylum shopping and to reaffirm the responsibility of a concrete Member States for examination of asylum applications ; the asylum applicants, therefore, have no freedom of choice where to file an asylum application.  This interpretation of the purpose of the Dublin II Regulation has no explicit or strong echo in the recitals of the Dublin Regulation. The main purposes of the Dublin regulation are defined in recitals 4., 6. and 8. These are : to determine rapidly the one Member State responsible, so as to guarantee effective access to the procedures ; preservation of family unity and to strike a balance between responsibility criteria in a spirit of solidarity. So, from the standpoint of the literal interpretation of the recitals of the Dublin Regulation our Supreme Court is not right in its interpretation of the main purpose of the Dublin Regulation. But, if one adds to this other methods of interpretation, especially systemic and logical interpretation, one could easily come to the conclusion that our Supreme Court is actually right that the main purpose is to prevent asylum shopping. This interpretation of our Supreme Court was confirmed by the CJEU in N.S. judgment from December 2011, where the CJEU also adds the mutual confidence between EU Member States in the sense that all Member States observe fundamental rights and Geneva Convention. 
However, that mutual trust and solidarity have a rather strange support in the Dublin II. Regulation. According to Art. 5 of the Dublin Regulation the criteria for determining the Member State responsible shall be applied in the order in which they are set out in this chapter. The first 7 criteria in the Articles from 6. to 9. are very rarely used in practice, because asylum seekers are not coming in Europe with residence permits and visas. Mostly, they are coming illegally ; and, therefore, the criteria that are regulated at the bottom of hierarchy of criteria in the chapter III. (Art. 10(1) and Art. 13 of the Dublin II. Regulation) are most often used in practice. Most often the responsible state is the state where asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country. That is why the Europe has got a humanitarian and human rights problems in relation to asylum seekers in the South and East of Europe.  This is confirmed by judgment of the ECtHR in case of M.S.S. v. Belgium and Greece. Judgment in M.S.S. is also a kind of a proof that Dublin II. Regulation - with its hierarchy of criteria for determination of Member States responsible for examination of asylum application in case of circumstances in Greece - is in breach with the human right to dignity and to asylum from the Charter of Fundamental Rights of the EU and it is also in breach with the Art. 80 of the TFEU, which reiterates the principle of solidarity and fair sharing of responsibility between the Member States. 
So, what was the input of Slovenian administrative judiciary in the respect of this solidarity clause and mutual confidence between Member States ?
In November and December 2010 (that is 3 months before the ECtHR delivered a judgment in M.S.S. v Belgium and Greece) the Administrative Court developed an interpretation of the Dublin II. Regulation in the light of the ECHR, especially the decision in T.I v. U.K., that it is just a presumption – not a conclusive one, but a rebuttal presumption – that all the Member States of the EU respect human right, so that an applicant in procedure under the Dublin II. Regulation must have an opportunity to show that a particular country within the EU (in those cases it was Greece) is not safe for him/her in terms of refugee law protection. Did the Administrative Court conduct an empirical evaluation of the facts concerning human rights situation of asylum seekers in Greece in those cases ? No, it did not. In those judgments the Administrative Court relied on the UNHCR’s report and on state practices in some countries where competent authorities or courts have stopped transfers to Greece.  Therefore, the Administrative Court stopped the transfers to Greece, returned those decisions back to the Ministry as being unlawful and the Administrative Court actually waited for the factual and empirical analyses of the situation in Greece conducted by the ECtHR in M.S.S..  The Supreme Court did not entirely support the position of the Administrative Court concerning the use of sovereignty clause. It upheld the judgments of the Administrative Court, but it stated that the Ministry should in a new procedure evaluate factual situation in Greece concerning the realistic chances of the asylum seeker to have effective access to asylum procedure in case of the transfer to Greece.  After the judgment in M.S.S. was delivered, the Administrative Court reaffirmed that due to sovereignty clause the State is fully responsible and must consider whether direct or indirect removal to an intermediary country within the EU could mean violation of Art. 3 of the ECHR.  Furthermore, our case-law show that sovereignty clause could be also applicable in some cases of humanitarian nature, when the asylum applicant has health problems and the transfer could jeopardize applicant’s health condition, but the Supreme Court is rather restrictive in those matters. 
Although the Dublin Regulation does not impose an obligation to the Member States to guarantee an effective legal remedy against decision on transfer, the Administrative Court based on Art. 13 of the ECHR and on the right to effective judicial protection under the Slovenian Constitution from the very beginning the Administrative Court established the practice that a party has a lawsuit against the Dublin decision and that it must have a suspensive effect. This autonomy of procedural guarantees under domestic law was reaffirmed in the judgment of the CJEU in case of Petrosian from January 2009. 
In relation to Dublin Regulation based on the (Slovenian) International Protection Act it is possible to detain asylum seeker for the purpose of successful transfer of asylum seeker to the responsible State. According to the well-established case-law the Ministry must ground its decision on detention on the principle of proportionality, so that detention is shown to be necessary in order to secure effective application of the Dublin regulation and the Ministry must also explain why detention will take place in Centre for Aliens and not in Asylum Home, where living conditions are better that in the Centre for aliens or why less intensive interference in freedom of movement would not be sufficient to attain the legitimate purpose. 
I believe the problems with Dublin Regulation will remain as long as we would not have a really Common European Asylum System. There are significant differences in interpretation and application of Geneva Convention and EU law on asylum in European States and we know, already from the decision of the ECtHR in case of T.I. v. the U.K. From 2000 (that is 3 years before the adoption of the Dublin regulation), that States are not allowed to adopt only so called formal approach to Dublin cases. In T.I. the British Government advocated against the interpretation of the Court which would impose a policing function of assessing whether another Contracting state is complying with the Convention. In the words of British Government that would undermine the effective working of the Dublin Convention. The ECtHR rejected that argument of the British Government by saying that “indirect removal to an intermediary country, which is also a Contracting state, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Art. 3 of the Convention, nor can the U.K. automatically in that context on the arrangements made in the Dublin Convention” (para. 16).
 Judgment of the Supreme Court in case I Up 284/2010 from 18 November 2010.
 The CJEU as the purposes of the DublinII. Regulation determines the mutual confidence between EU Member states, avoidance of backlogs and avoiding of forum shopping (C-411/10 and C-493710 from 21. December 2011, para. 79.
 In N.S. the CJEU noted that in 2010 90% of all illegal immigrants in EU have crossed the border of the EU in Greece (para. 87).
 See judgment of the CJEU in case N.S. (C-411/10 from 21 December 2011, paras. 10., 12).
 UNHCR Information Note on national practice in the application of Art. 3(2) of the Dublin II Regulation in particular in the context of intended transfers to Greece that States like Netherlands, Sweden, Norway, U.K., Belgium, Malta, Austria, Iceland stopped transfers to greece. We relied on the fact that the ECtHR in 2009 and in the first quarter of 2010 stopped 500 removals to Greece based on Rule 39 ; this was published in ECRE Bulletin Weekly. And we relied also on the judgment of the French Conseil d’Etat from 19 May 2010 (Ordonnannce no. 339478)
 Judgments of the Administrative Court in cases of I U 1591/2010-2 from 8 November 2010 ; I U 1737/2010-13 from 30. November 2010 ; I U 1745/2010-7 from 2. December 2010
 Judgment of the Supreme Court in case I Up 26/2011 from 20 January 2011.
 Judgment of the Administrative Corut in case I U 687/2011-9 from 26. april 2011.
 Judgment of the Supreme Court in case I Up 226/2011 from 25 may 2011.
 Judgment of the CJEu in case C-19/08 from 29. January 2009, paras. 46-50.
 Judgment of the Supreme Court in cases : I Up 46/2010 from 25. February 2010, I Up 680/2011 from 1. December 2011 and I Up 702/2011 from 8. December 2011.