Danish Refugee Council
Borgergade 10, P.O. Box 53, DK-1002 Copenhagen K, Denmark
Implementation of the Dublin Convention
in the 15 EU Member States
Questionnaire
Presentation
1— Due to the large number of issues touched by the Dublin Convention and the fact that detailed information is needed, this questionnaire is relatively long. For clarity purpose, it is divided into the following 10 sections:
1 — National legislation and guidelines/bilateral agreements
2 — Rejection to third countries
3 — Determining the State responsible
4 — "Opt-out" and humanitarian clauses
5 — Procedure
6 — Information, legal aid and interpretation
7 — Social rights
8 — Treatment of transferred applicants
9 — Processing time
10 — Statistics
In case you wish to involve several persons in the completion of this questionnaire, we would be grateful if you could mention the name of the person responsible for each section. This will facilitate any later request for details or clarifications.
2— We have in general used the same terminology as that of the Dublin Convention. In particular, the expressions "take charge" and "send over" refer to the situation where an asylum seeker is returned from Member State A, where he/she has lodged an application for asylum, to Member State B, where he/she had not previously submitted an application. The expressions "take back" and "send back" cover the situation where the applicant is returned from Member State A to Member State B, where he/she had applied for asylum previously.
The Dublin Convention is mentioned as "the Convention" or "the DC". The expression "Member States" refer to the EU Member States and includes thus all 15 States party to the DC.
3— The questionnaire is sent, in each country, to a refugee-assisting agency, a refugee lawyer dealing with Dublin cases and to the authority responsible for dealing with the Dublin procedure.
In view of the problems which have already been raised regarding the implementation of the DC — for instance the fact that family members in some cases may find themselves separated with no hope of rapid reunion due to long processing times —, the authors of the questionnaire attach particular importance to the questions regarding the application of Articles 3.4 and 9 (Section on "Opt-out and humanitarian clauses"). The questionnaire includes covers some more technical questions, which might be answered more easily by the authorities.
4— Each question is followed by a triple space for the answer. However, since the text is sent by electronic mail, you may modify this at your convenience in order to have the necessary spacing.
1— National legislation and guidelines
/bilateral agreements
1.1 Incorporation of the DC into national legislation
1.1.1 When and how (specific law, amendments to the existing Aliens Law, etc.) was the DC incorporated into national legislation?
1.1.3 Additional comments, including on any noticeable discrepancies between the text of the DC and the national provisions?
2 —Administrative regulations/guidelines
1.2.1 Are there any administrative regulations and/or internal guidelines related to the application of the DC? Please describe.
1.2.2 Are these administrative regulations and/or guidelines binding for the authorities?
1.2.3 Are the guidelines accessible to actors outside the administration, in particular to refugee organisations?
1.2.4 Additional comments.
1.3 Bilateral Agreements
It is possible under the framework of the DC to conclude bilateral agreements related to the implementation of the Convention with other Member States. Denmark has, for instance, concluded bilateral agreements with Germany and Sweden, which tend to simplify and accelerate the procedure.
1.3.1 Has your country entered bilateral agreements with other EU countries concerning the implementation of the Dublin Convention?
1.3.2 If yes, when (date of conclusion/entry into force) and with which countries?
1.3.3 What are the main provisions included in these agreements (for instance concerning the procedure for sending requests, the time limits, the physical transfers, the standard of proof, the police co-operation, etc.)?
1.3.4 Additional comments.
2— Rejection to third countries
(Article 3.5 of the DC)
Article 3.5 of the Convention allows Member States to return an asylum seeker to a third State — i.e. a State outside the EU — in compliance with the provisions of the Geneva Convention.
2.1 Is there in your country’s legislation an obligation for the authorities to investigate first the existence of a possible "safe third country" outside the EU, where the applicant could be returned, before considering the possible responsibility of another Member State under the DC?
2.2 If there is no such legal obligation, what is the practice? Do the authorities systematically start by investigating the "safe third country" option or is there no defined priority?
Some countries experience difficulties due to time limits set in their internal legislation for the removal of an applicant to a "safe third country"; if a request for taking charge under the DC is first sent to another Member State, the time limit to remove the applicant to a "safe third country" may well have expired when that Member State replies negatively to the request.
2.3 Does your country’s legislation include such a time limit to remove an applicant to a "safe third country"? If yes, does this time limit create specific problems in conjunction with the DC?
2.4 What is the practice of the authorities to avoid such difficulties?
2.5 Additional comments, concerning in particular any other problems related to the application of the "safe third country" principle in conjunction with the DC
3 — Determining State responsibility
(Articles 4— 8 of the DC)
3.1 Family Member (Article 4)
According to Article 4, if an asylum seeker has a family member in a Member State, that State is responsible for examining his/her application for asylum. Family member is defined under this Article as the applicant’s spouse or unmarried child under 18, or the father or mother of an unmarried minor applicant. In addition, the family member must be a recognised refugee under the 1951 Geneva Convention.
3.1.1 If an extended definition of family (unmarried couples, homosexuals, etc.) is usually applied in your country, what is the practice regarding Article 4: do the authorities keep strictly to the Convention definition, or do they apply the extended definition (by interpreting Article 4 extensively or, for instance, by invoking Article 3.4)?
3.1.2 When the family member living in your country has another status than Convention status (de facto, humanitarian, temporary, etc.), what is the practice regarding Article 4? Do the authorities extend the scope of Article 4 to other types of status than only Convention status? If yes, which types of status are concerned?
3.1.3 What is the practice when the family member living in the country is undergoing asylum determination procedure and, therefore, has yet no legal status?
For instance: — is the Dublin procedure suspended awaiting the outcome of the family member’s determination procedure?
— is the Dublin procedure applied, but the physical transfer to another Member State suspended awaiting the outcome of the family member’s determination procedure?
is the Dublin procedure and the physical transfer carried out without consideration for the family member’s procedure?
3.1.4 Additional comments.
3.2 Residence permits and visas (Article 5)
According to Article 5, the Member State who has issued the applicant with a valid residence permit or visa is responsible for examining his/her application. Article 5 provides for detailed rules applying in case of several visas/residence permits or visas/residence permits, which have expired, as well as for exceptions (visa granted on the written authorisation of another Member State, etc.)
3.2.1 Do the authorities consider as being "valid" a visa, which has been issued in a regular way but on the basis of a counterfeit travel document (i.e. a real visa given on a forged passport)?
3.2.2 Additional comments, in particular concerning any other problems resulting from the residence permit and visa criterion?
3.3 Irregular crossing of the border (Article 6)
According to Article 6, if the applicant has crossed the external border of a Member State, that State is responsible for the examination of the application for asylum. This essentially comes down to a question of proof. Decision No. 1/97 of 9 September 1997 of the Committee set up by Article 18 of the DC provides for principles regarding the collection and the use of evidence as well as for lists of means of proof, which include probative and indicative evidence.
3.3.1 Has Decision 1/97 been implemented through an administrative regulation/guideline?
3.3.2 Are the provisions of Decision 1/97 regarding the means of proof followed by the authorities in practice? Are both probative (stamps in passports) and indicative (hotel bills, train or airport tickets etc.) evidence accepted as provided in the Decision?
3.3.3 If no, what is the practice in relation to the level- and assessment of proof?
According to Decision no. 1/98 of 30 June 1998 (Article 2) it is possible for Member States to request fingerprint information under Article 15.2 of the Convention.
3.3.4 Are all asylum seekers arriving in your country automatically fingerprinted? If not all, which categories?
3.3.5 What is the practice of your country’s authority regarding sending request for information in connection with fingerprinting? Please describe.
3.3.6 Is the asylum seeker informed as to the use of fingerprints?
3.3.7 Additional comments.
3.4 Control of entry and airport transit zones (Article 7)
3.4.1 Are you aware of any specific problems related to applications submitted in airport transit zone?
3.4.2 Additional comments.
4 — The "opt-out" and humanitarian clauses
(Articles 3.4 and 9 of the DC)
4.1 The "opt-out" clause (Article 3.4)
Article 3.4 provides for the possibility for a Member State to examine an application for asylum even though it is not responsible under the DC. This requires the agreement of the asylum seeker.
4.1.1 Is Article 3.4 incorporated in to your country’s national asylum legislation? If yes, is it indicated in which particular situations Article 3.4 should be applied?
4.1.2 Are there any administrative regulations or guidelines, which apply specifically to Article 3.4 (see section 1.2 above)? If yes, do they specify to which cases Article 3.4 applies?
In several countries, specified categories of cases — in general, manifestly unfounded ones — are processed under the asylum determination procedure without investigating if another State is responsible under the DC. This constitutes a systematic application of Article 3.4 of the DC.
4.1.3 Are there categories of applications (for instance manifestly unfounded applications) or specific nationalities to which Article 3.4 is systematically applied?
4.1.4 If yes, is this application of Article 3.4 to these cases explicit?
4.1.5 In which (other) cases do the authorities apply Article 3.4?
For instance: — the applicant’s family member living in the country does not fulfil the Article 4 definition (nuclear family and/or Convention status);
— to avoid separating families: 2 (or more) members of the same family have arrived separately by different travel routes; the application of the criteria of the DC would lead to the situation where one of them is sent over to another Member State while the other stays in your country; or the situation where both applicants are sent over to different Member States;
— health conditions of the asylum seeker or a family member , for instance pregnancy, illness, etc. (please describe);
— unaccompanied minors;
lack of answer from the requested State after a certain period of time; in such case, after which period?
physical transfer not feasible;
— other cases (please exemplify).
4.1.6 Is there any formal procedure to secure the agreement of the asylum seeker when Article 3.4 is applied, or is the submission of the application considered as sufficient?
4.1.7 Additional comments.
4.2 The humanitarian clause (Article 9)
Article 9 makes it possible for a Member State, which is not responsible under the DC, "for humanitarian reasons, based in particular on family or cultural grounds", to examine an application at the request of another State. This requires the agreement of the applicant.
4.2.1 Has Article 9 been incorporated into your national asylum law? If yes, does the law indicate in which particular cases it should apply?
4.2.2 Are there any administrative regulation/administrative guidelines related to the application of Article 9 (see section 1.2 above)? If yes, please describe.
4.2.3 Additional comments.
4.2.3 Requests under Article 9 sent by your country to other Member States
In some countries, the authorities have the legal obligation to investigate in each case if there are humanitarian circumstances related to any specific Member State.
4.2.3.1 Is there a legal obligation for the authorities in your country to investigate any humanitarian circumstances in relation to any specific Member State? If yes, is such investigation conducted in practice?
4.2.3.2 What is the general policy of your country’s authorities regarding sending requests under Article 9? Is this provision applied frequently? Is it done only if requested by the applicant or also on the authorities’ initiative?
4.2.3.3 In which cases do the authorities in your country send request under Article 9? Please describe the practice:
For instance — a family member is residing in another Member State, but he/she does not fulfil the requirements of Article 4 (nuclear family or Convention status);
— a family member has applied for asylum in another Member State and your country would like to avoid separating the family;
— illness, pregnancy, etc. (please describe);
unaccompanied minors with family member (not nuclear family) in another country;
— cultural or religious grounds (please describe);
other cases (please specify).
4.2.3.4 Is there any formal procedure to ensure the applicant’s agreement for a request under Article 9 to be sent to another Member State?
4.2.3.5 Is there any obligation for the authorities to inform the asylum seekers about the possibility of having a request sent to another Member State under Article 9?
4.2.3.6 Additional comments.
4.2.4 Requests under Article 9 received by your country
4.2.4.1 What is the general policy of your country’s authorities regarding the requests under Article 9 sent by other Member States?
4.2.4.2 In practice, in which cases are such requests accepted?
For instance: — there is a family member residing in your country, but he/she does not fulfil the requirements of Article 4 (nuclear family or Convention status);
— a family member has applied for asylum in your country and your country would like to reunite the family;
an unaccompanied minor has a family member (not nuclear) living in your country;
— Illness, pregnancy, etc.
— cultural or religious grounds;
Other cases (please specify).
4.2.4.3 Additional comments.
5 — Procedure
5.1 Initial Decision
5.1.1 Responsible body
5.1.1.1 Who is the responsible body for taking first instance decisions under Dublin procedure?
5.1.1.2 If the responsible body is an already existing body (Ministry, Immigration Service, etc.), has a specific unit been established to deal with Dublin cases? Please describe.
5.1.1.3 Additional comments.
5.1.2 Transfer of the case to the responsible body
5.1.2.1 When and how is the case transferred from the police to the responsible body? Please describe the procedure.
5.1.2.2 Additional comments.
5.1.3 Applicants’ legal situation
5.1.3.1 What kind of document do applicants dealt with under the Dublin procedure receive? Is this similar to other asylum seekers? How often does it have to be renewed?
5.1.3.2 Additional comments
5.1.4 Notification of the decisions
5.1.4.1 Are all decisions made under the Dublin procedure notified to the applicants?
5.1.4.2 Are all decisions notified in writing?
5.1.4.3 Are all decisions reasoned?
5.1.4.4 Additional comments.
5.2 Appeal rights
5.2.1 Lodging of the appeal
5.2.1.1 Is it possible to appeal against a decision taken by the above-mentioned responsible body? If yes, to which authority?
5.2.1.2 Does the first instance decision include written information on the possibility of lodging an appeal?
5.2.1.3 What is the time limit to lodge the appeal?
5.2.1.4 Does such an appeal have suspensive effect?
5.2.1.5 If suspensive effect is not automatically granted, is it possible to submit a specific request? What are the conditions required to be granted suspensive effect?
5.2.1.6 If the appeal has no suspensive effect, what is the practice of the authorities? Do they generally wait the outcome of the appeal procedure before enforcing the decision?
5.2.1.7 Additional comments.
5.2.2 Appeal procedure
5.2.2.1 Is the appeal procedure a written procedure, or does it include a hearing with the applicant?
5.2.2.2 What is the average processing time before the appeal body?
5.2.3 Grounds for appeal
In a decision of July 1999, the Court of Appeal in England has stated that Germany and France were not "safe third countries" regarding 3 asylum seekers, who were due to be sent over to them based on the DC. The reason for this decision is the restrictive interpretation of Article 1 of the Geneva Convention by the French and German authorities, who do not recognise persecution by non State agents and the risk, according to the court, of a breach of Article 33 of the Refugee Convention (non-refoulement) in case of removal from France or Germany to the applicant’s home countries.
5.3.3.1 Are you aware of successful appeal cases in your country based on the same argumentation — i.e. a restrictive interpretation of the Refugee Convention in the other Member State and thus risk of refoulement?
In a later decision, the Court of Appeal has stated that Denmark was not a "safe third country" regarding an applicant, who was supposed to be sent back to Denmark, where his previous application had been rejected. According to the Court, the British authorities must refuse the transfer if it appears that the procedure for examining the request in the other country has not operated fairly and if there is a risk of persecution upon return in the home country. Article 33 of the Refugee Convention (non-refoulement) must be considered in all cases.
5.2.3.2 Are you aware of any successful cases in your country based on a similar argumentation — i.e. the procedure has not operated fairly in the other Member State and there is a risk of refoulement?
5.2.3.3 Additional comments.
5.2.4 Further appeals
5.2.4.1 Is it possible to lodge a further appeal?
5.2.4.2 If yes, could you describe the procedure (time limit, suspensive effect, hearing, processing time, etc.)
5.2.4.3 If such an institution exists, may the Ombudsman be involved in the procedure?
5.2.4.4 Additional comments.
5.3 Physical transfers
5.3.1 Physical transfers from your country
5.3.1.1 Are asylum seekers always notified of the date of the transfer in advance?
5.3.1.2 Are the transfers from your country organised in conjunction with the authorities of the Member State of destination? Is there always a prior agreement between authorities regarding the transfers?
5.3.1.3 Are applicants usually asked to join the responsible Member State by their own means or are they usually escorted?
5.3.1.4 If escorted, does the escort stop at the border (if there is one), at the airport or at a specific place in the Member State of destination?
5.3.1.5 Additional comments.
5.3.2 Physical transfer to your country
5.3.2.1 To which institutions applicants transferred to your country must report on arrival? Please describe, if there are several.
5.3.2.2 Additional comments.
5.3.3 General
5.3.3.1 Does your country experience particular difficulties in carrying out transfers to or from specific Member States? If yes, please specify the countries and the reasons.
5.3.3.2 Additional comments.
5.4 Article 12 of the DC
According to Article 12, if an application is lodged with the authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the State responsible for examining the asylum application (the Dublin procedure) is carried out by the Member State where the applicant is staying and not by the Member State to which the application has been submitted. In practice, this provision applies predominantly to the applicants who submit their asylum claim at a land border between 2 Member States.
In addition, several countries have concluded bilateral agreements under which Article 12 has been extended to include, for instance, ports (Danish-Swedish agreement).
5.4.2 Is Article 12 systematically applied at your country’s land borders?
5.4.3 Has Article 12 been extended to include other borders than land borders (ports or airports)? If yes, under which agreement and with which countries?
5.4.4 Additional comments.
6 — Information, legal aid and interpretation
6.1 Information and counselling
6.1.1 Do asylum seekers receive general information on the Dublin procedure? Please describe both the legal requirements and the practice.
6.1.2 If yes, at what stage is this information provided?
6.1.3 Is such information provided by the authorities or by non-governmental refugee organisations?
6.1.4 Do asylum seekers processed under the DC have the possibility to contact refugee organisations and to receive individual counselling? Does this apply in practice?
6.1.5 Do refugee-assisting organisations have the possibility to monitor the situation of applicants sent over or sent back to your country by the other Member States?
6.1.6 In general, do you consider that refugee-assisting organisations are sufficiently involved in the monitoring of the Convention in your country?
6.1.7 If not, what are the reasons (relations with the authorities, lack of resources, other constraints, etc.)?
6.1.8 Additional comments.
6.2 Legal aid
6.2.1 Is legal aid available at first the instance level? Is it automatically provided?
6.2.2 Is legal aid available at the appeals level? Is it automatically provided?
6.2.3 If there is no legal aid system, or if it is not available to applicants processed under the Dublin procedure, what happens in practice?
6.2.4 Additional comments.
6.3 Interpretation
6.3.1 Is the information on the Dublin procedure (see 6.1.1 above) provided in the applicants’ own languages?
6.3.2 Is there a legal obligation to translate the decisions made under the Dublin procedure to the applicants’ own languages?
6.3.3 Is interpretation systematically provided during the appeal procedure?
6.3.4 Additional comments.
7 — Social rights
7.1 Accommodation
7.1.1 Is accommodation provided by the authorities to the applicants dealt with under the Dublin procedure?
7.1.2 If yes, is it provided under the same terms/in the same premises as "normal" asylum seekers?
7.1.3 Is such accommodation also provided during the appeal procedure?
7.1.4 If no accommodation is provided by the authorities, where do asylum seekers processed under the DC stay?
7.1.5 Additional comments.
7.2 Financial assistance
7.2.1 Do the authorities provide financial assistance to applicants processed under the DC? If yes, how much?
7.2.2 Is this financial assistance different to that granted to "normal" asylum seekers?
7.2.3 Additional comments.
7.3 Work
7.3.1 Are applicants processed under the DC allowed to work?
7.3.2 Is this different to what applies to "normal" asylum seekers?
7.3.3 Additional comments.
7.4 Health
7.4.1 Do applicants processed under the DC have access to health services?
7.4.2 Is this different to what applies to "normal" asylum seekers?
7.4.3 Additional comments.
7.5 Education
7.5.1 Do children of applicants processed under the DC have access to education?
7.5.2 Is this different to what applies to "normal" asylum seekers?
7.5.3 Additional comments.
8 — Situation of transferred asylum seekers
8.1 Asylum seekers sent over to your country
8.1.1 Are applicants sent over to your country considered automatically as asylum seekers or do they have to submit a formal application for asylum upon arrival?
8.1.2 Additional comments.
8.1 Asylum seekers sent back to your country
8.1.1. Is it possible for applicants sent back to your country to lodge a second application for asylum upon arrival or to have their case re-opened?
In practice, a protection gap may occur for the asylum seekers who apply in one Member State and then leave for another Member State without substantiating their initial claims. In most cases, when they are sent back to the first Member State on the basis of the DC, their application in that country has already been rejected in their absence.
8.1.3 Do specific rules (or practice) apply to the applicants who had left your country without substantiating their claims and whose application was rejected in their absence?
8.1.4 Additional comments.
8 — Processing times
(Articles 11 and 13 of the DC
and 4 and 6 of Decision no. 1/97)
Time limits for submitting and replying to requests to take charge are set out in Article 11 of the Convention. Article 13 sets out the time limit in relation to replying to a request to take back. These time limits have been developed further in Articles 4 (taking charge) and 6 (taking back) of Decision No. 1/97.
9.1 Sending requests to take charge (Article 11)
Article 11 provides for a 6-month time limit to send a request to take charge to another Member State.
9.1.1 Is the 6-month time limit always upheld by the authorities?
9.1.2 What is the average time taken by the authorities to make a request to take charge?
9.2 Sending requests to take back
No time limit has been set regarding the submission of requests to take back.
9.2.1 Has a time limit been fixed in national legislation/internal guidelines for making requests to take back?
9.2.2 What is the average time taken by the authorities in your country for submitting a request to take back?
9.3 Replying to requests to take charge
(Article 11 of the DC and 4 of Decision No.1/97)
Article 11 provides for a 3-month time limit to answer a request to take charge. According to the Decision 1/97, the Member States must make every effort to reply within 1 month. During this period, they may also give a temporary reply indicating when they will give the definitive one. The 3-month period may never be exceeded.
9.3.1 Do the authorities comply, in practice, with 1-month period set in the Decision 1/97?
9.3.2 Do they always comply with the 3-month time limit of Article 11 of the Convention?
9.3.6 What is the average time taken by the authorities in your country for replying to requests to take charge?
9.4 — Replying to requests to take back
(Article 13.1b of the DC and 6 of Decision No. 1/97)
According to Article 13.1.b of the DC, Member States must reply to requests to take back within 8 days. In exceptional cases, as sated in the Decision 1/97, they may give a temporary reply within these 8 days and provide the definitive reply within 1 month.
9.4.1 Do the authorities meet, in practice, the 8-days time limit?
9.4.4 What is the average time for replying to requests to take back?
9.5 — Physical transfers
(Articles 11.5 and 13.1b of the DC)
According to Article 11.5 of the DC, the physical transfer must take place within 1 month after the responsible State has agreed to the take charge or 1 month after the end of the appeal proceedings. The same 1-month time limit applies to applicants sent back to another Member State.
9.5.1 What is the average time taken to carry out physical transfers from your country?
10 — Statistics
If possible, figures should be provided for 1998 and 1999.
8.1 General statistics
8.1.1 Total number of asylum seekers in your country dealt with under Dublin procedure.
8.1.2 Percentage of applicants processed under the Dublin Convention compared to the total number of asylum seekers.
8.1.3 Average number of asylum seekers who, at any time, are under Dublin procedure.
8.2 Requests to take charge sent by your country
8.2.1 Number of requests to take charge sent by your country with country distribution.
8.2.2 Number of positive/negative replies received with country distribution.
8.3 Requests to take back sent by your country
8.3.1 Number of requests to take back sent by your country with country distribution.
8.3.2 Number of positive/negative responses received with country distribution.
8.4 Requests to take charge received by your country
8.4.1 Number of requests to take charge received by your country with country distribution.
8.4.2 Number of positive/negative responses given with country distribution.
8.5 Requests to take back received by your country
8.5.1 Number of requests to take back received by your country with country distribution.
8.5.2 Number of positive/negative responses given with distribution by country.
8.6 Other relevant statistics
8.6.1 Number of decisions made under Article 3.4.
8.6.2 Number of requests under Article 9 sent by your country to other Member States — with distribution by country — and number of positive/negative answers received.
8.6.3 Number of requests under Article 9 received by your country from other Member States — with distribution by country — and number of positive/negative answers given.