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withdrawn his/her asylum application.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withdrawn as well and the Dublin procedure has to be terminated.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.