<EntPE>EUROPEAN PARLIAMENT</EntPE>
|
2004 |
|
2009 |
Session document
<NoDocSe>A6-0287/2008</NoDocSe>
<Date>{02/07/2008}2.7.2008</Date>
<TitreType>REPORT</TitreType>
<Titre>on the evaluation of the Dublin
system</Titre>
<DocRef>(2007/2262(INI))</DocRef>
<Commission>{LIBE}Committee on Civil Liberties,
Justice and Home Affairs</Commission>
Rapporteur: <Depute>Jean Lambert</Depute>
PR_INI
CONTENTS
Page
MOTION FOR A EUROPEAN PARLIAMENT
RESOLUTION........................................... 3
EXPLANATORY STATEMENT........................................................................................... 10
RESULT OF FINAL VOTE IN COMMITTEE...................................................................... 15
MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
on the
evaluation of the Dublin system
(2007/2262(INI))
The
European Parliament,
– having regard to Council
Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and
mechanisms for determining the Member State responsible for examining an asylum
application lodged in one of the Member States by a third-country national
('the Dublin Regulation')[1],
– having regard to Council
Regulation (EC) No 2725/2000 of 11 December 2000 concerning the
establishment of 'Eurodac' for the comparison of fingerprints for the effective
application of the Dublin Convention[2],
– having regard to Council Directive
2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the
protection granted[3],
– having regard to Council
Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the
reception of asylum seekers[4] ('the Reception Directive'),
– having regard to Regulation
(EC) No 862/2007 of the European Parliament and of the Council of 11 July
2007 on Community statistics on migration and international protection and
repealing Council Regulation (EEC) No 311/76 on the compilation of
statistics on foreign workers[5],
– having regard to the Council
Conclusions on access to Eurodac by Member States police and law enforcement
authorities as well as Europol[6],
– having regard to Decision
No 573/2007/EC of the European Parliament and of the Council of
23 May 2007 establishing the European Refugee Fund for the period 2008 to
2013 as part of the General programme Solidarity and Management of Migration
Flows and repealing Council Decision 2004/904/EC[7],
– having regard to its
resolution of 6 April 2006 on the situation with refugee camps in Malta[8],
– having regard to its reports
on the visits by its Committee on Civil Liberties, Justice and Home Affairs to
detention centres in several Member States,
– having regard to its
resolution of 21 June 2007 on asylum: practical cooperation, quality of
decision-making in the common European asylum system[9],
– having regard to its resolution of 16 January 2008: Towards an EU strategy on the
rights of the child[10],
– having
regard to its resolution of 13 March 2008 on the case of the Iranian citizen
Seyed Mehdi Kazemi[11],
– having regard to Rule 45 of
its Rules of Procedure,
– having regard to the report
of the Committee on Civil Liberties, Justice and Home Affairs (A6‑0287/2008),
A. considrant
que tout demandeur d'asile a droit ce que sa demande fasse l'objet d'un
examen individuel et approfondi,
B. whereas asylum legislation and practice
still vary widely from country to country and that, as a result, asylum-seekers
receive different treatment from one Dublin State to another,
C. whereas the Dublin system is rooted in
such premises as mutual trust and reliability and that if these prerequisites
are not fulfilled, i.e. if there are serious gaps in data collection or
inconsistencies in the decision-making process in certain Member States, the
whole system suffers,
D. whereas there is evidence that some
Member States do not guarantee effective access to a procedure for determining
refugee status,
E. whereas some Member States do not
apply the Reception Directive effectively, either to asylum applicants awaiting
transfer to another Member State under the Dublin Regulation, or at the point
of return to the Member State responsible,
F. whereas some Member States
systematically place persons subject to the Dublin system in detention,
G.
whereas the high level of multiple requests and the low level of effected
transfers are indicators of the deficiencies of the Dublin system and of the
need to establish a common European asylum system,
H. whereas a correct implementation of the
Dublin Regulation may well result in the unequal distribution of responsibility
for persons seeking protection, to the detriment of some Member States
particularly exposed to migration flows simply on the grounds of their
geographical location,
I. whereas the Commission's
evaluation reveals that, in 2005, the thirteen Member States at the borders of
the Union had to deal with increasing challenges raised by the Dublin system,
J. whereas southern Member States are
having to accept asylum applications from irregular immigrants who are rescued
when in distress whilst they are on their way to Europe,
K. whereas southern Member States are having
to accept asylum applications from irregular immigrants who are not assisted by
third countries which are obliged to provide such assistance under
international law,
L. whereas Member States may have no
interest in complying with the obligation of registering illegal entrants in
the Eurodac database, as this may result in increasing the number of
applications for asylum which they will have to deal with,
M. whereas the Dublin Regulation establishes a
system which is designed to determine the Member State responsible for dealing
with a claim, but it was not originally put in place
for, and therefore fails to serve as, a burden sharing mechanism,
N. whereas it is essential that any
evaluation of the Dublin system is accompanied by a concrete, permanent, fair
and functional burden sharing mechanism,
O. whereas the Dublin system's first country
of entry criteria put a lot of pressure on the border Member States,
P. whereas recognition rates of
candidates for refugee status vary for certain third-country nationals from
approximately 0% to 90% within Member States,
Q. whereas it is essential that individuals
lodging claims are fully apprised of the Dublin process, in a language which
they understand, and its possible consequences,
R. whereas Article 24 of the Charter of
Fundamental Rights of the European Union states that in all actions relating to
children, whether taken by public authorities or private institutions, the
child's best interests must be a primary consideration,
S. whereas although family unity is
mentioned first in the hierarchy of criteria applied in the Dublin Regulation,
that provision is not often applied,
T. whereas there is an obvious lack of
accuracy in statistical data on transfers, as they do not indicate, for
instance, the rate of requests for taking charge of an asylum applicant based
on an irregular crossing of the border, or the proportion of 'taking charge'
versus 'taking back' requests,
U. whereas in 2005, nine of the new Member
States stated that they were registering more incoming transfers under the
Dublin Regulation, and Member States with no external land border of the Union
stated that they were registering more outgoing transfers,
V. whereas the Commission has been unable to
evaluate the cost of the system and whereas that information is important to be
able to assess its effectiveness,
W. whereas the Justice and Home
Affairs Council meeting in Luxembourg on 12 and 13 June 2007 invited the
Commission to present as soon as possible an amendment to the Eurodac
Regulation with the aim of enabling Member States' police and law-enforcement
authorities, as well as Europol, to have access under certain conditions to
Eurodac, a database which was conceived originally as a tool for implementing
the Dublin Regulation,
Efficiency
of the system and responsibility sharing
1. Strongly believes that unless a
satisfactory and consistent level of protection is achieved across the European
Union, the Dublin System will always produce unsatisfactory results from both
the technical and the human viewpoints, and asylum seekers will continue to
have valid reasons for wishing to lodge their application in a specific Member
State to take advantage of the most favourable national decision-making;
2. Strongly believes that in the
absence of a genuine common European asylum system and a single procedure, the
Dublin system will continue to be unfair both to asylum seekers and to certain
Member States;
3. Reaffirms the urgent need for the
improvement of both the quality and the consistency of the decision-making
process; is convinced that a European Asylum Support Office could play a
valuable role in this respect, for example in providing training to high common
standards and through the provision of expert support teams;
4. Asks the Commission to consider
ways of providing UNHCR with direct financing to complement project-based
funding in order to enable it to enhance its monitoring and advisory work in
the EU and continue developing methods intended to support national authorities
in their efforts to improve the quality of their decision-making;
5. Asks the Commission to bring
forward proposals for burden-sharing mechanisms which could be put in place in
order to help alleviate the disproportionate load which could fall on certain
Member States, in particular the border Member States, but do not fit into the Dublin
system;
6. demande
la Commission, dans l'attente de la mise en place de mcanismes europens de
partage des charges, d'envisager de prvoir des mcanismes autres que
financiers au sein du rglement de Dublin, afin de corriger les consquences
nfastes de son application pour les petits tats membres aux frontires
extrieures de l'Union;
7. Asks the Commission to provide for
a binding mechanism to stop transfers of asylum applicants to Member States
that do not guarantee full and fair treatment of their claims and to take systematic measures
against those States;
8. Calls on the Commission to
establish meaningful bilateral working relations with third countries such as
Libya, in order to facilitate cooperation and ensure that such third countries
meet their international legal obligations;
Rights
of the claimants
9. Asks the Commission to introduce
into the new Regulation clearer and more stringent provisions concerning the
means by which the persons seeking protection are informed of the implications
of the Dublin Regulation, and to consider drafting a standard leaflet which
could be translated into a certain number of languages and be distributed to
all Member States; it should also take into account individual levels of
literacy;
10. Asks the Commission to amend Articles 19 and 20
of the Dublin Regulation on 'taking charge and taking back', so as to provide
applicants with an automatic suspensory right of appeal against a decision to
transfer responsibility to another Member State under the Dublin Regulation;
11. Reaffirms that the principle of non-refoulement should remain one of the
cornerstones of any common asylum system at European Union level, and insists
that the implementation of the Dublin Regulation should never lead to a claim
being closed for procedural reasons and not reopened for a full and fair
examination of the original claim after a transfer via the Dublin process;
considers that this should be made clear in the Regulation;
12. Considers that information-sharing on transfers
between Member States should be improved, especially with respect to special
medical care needed for the transferees;
13. Calls on the Commission to assess the
possibility for individuals concerned by a transfer to another Member State
under the Dublin system to be transferred to their country of origin, solely at
their express request and on the basis of full compliance with procedural
rights;
Family
reunification and the principle of the best interests of the child
14. Recommends that a set of common guidelines on
age assessment be adopted at European Union level and that in the event of
uncertainty, the benefit of the doubt be given to the child;
15. Recalls that in all decisions relating to
children, the best interests of the child must be paramount; insists that
unaccompanied minors should never be detained or transferred to another Member
State, except for the sake of family reunification, and that if such a transfer
proves necessary, the child must be duly represented and accompanied throughout
the procedure; welcomes, therefore, the Commission's intention to further
clarify the applicability of Dublin rules to unaccompanied minors;
16. Regrets that the definition of a family member
under the current Regulation is too restrictive and asks the Commission to
extend the present definition to include all close relatives and long-term
partners, particularly those who have no other family support, and adult
children unable to care for themselves;
17. Welcomes the Commission's intention to extend
the scope of the Dublin Regulation to include subsidiary protection, as this
should enable applicants for subsidiary protection to be reunited with family
members who were granted this type of protection or are asking for it in
another Member State;
Detention
18. Asks the Commission to add a provision
restricting the detention of Dublin claimants to a measure of last resort,
thereby specifying the grounds on which detention may be employed and the
procedural safeguards which should be provided for;
19. Asks the Commission to state explicitly in the
Dublin Regulation that Dublin claimants are entitled to the same reception
conditions as other asylum seekers, in accordance with the Reception Directive,
Article 3(1) of which lays down general rules, notably on material reception
conditions, health care, freedom of movement and the schooling of minors;
Humanitarian
and Sovereignty Clauses
20. Considers that the humanitarian clause
contained in Article 15 of the Dublin Regulation gives considerable flexibility
to the Dublin system, but that it should be applied more widely, so as to avoid
undue hardship to families as a result of separation;
21. Considers that where an asylum seeker is in a
particularly vulnerable state owing to a serious illness, a severe disability,
old age or pregnancy, and he or she is therefore dependent on the assistance of
a relative present in the territory of a Member State other than the one in
charge of the examination of the application, he or she should, as far as
possible, be reunited with that relative; asks the Commission to consider
making compulsory the relevant provisions of the humanitarian clause in Article
15(2);
22. Considers that a proactive duty to trace family
members should be introduced for organisations such as the Red Cross and Red
Crescent;
23. Welcomes the Commission's intention to better
specify the circumstances and procedures for applying the Sovereignty clause,
notably in order to introduce the condition of the asylum seeker's consent;
Data-collection
and Eurodac
24. Expresses its concern at the discrepancies and
deficiencies in the collection of data revealed by the Commission's evaluation
of the Dublin system, especially in relation to the registering of fingerprints
of illegal entrants at the borders of the Union, which casts serious doubts on
the validity of the system; trusts that the new Regulation on Community
statistics on migration and international protection will give the stakeholders
a more accurate picture of the functioning of the Dublin system and other
Community instruments on international protection;
25. Expresses its concern that no cost assessment
of the Dublin system is currently available; calls on the Commission to remedy
this as it is an important aspect of the evaluation of the system;
26. Notes with interest the concerns expressed by
the Commission regarding the collection and the quality of data sent to the
Eurodac Central Unit, as well as regarding non-compliance with the obligation
to delete certain data and with the rules relating to the protection of
personal data; considers that these failings, which call into question the
reliability of Eurodac, should be addressed properly before any other use of
this database be envisaged;
27. Considers that each Member State should
clarify, on a closed list, the agencies and authorities that have access to the
Eurodac database, and for what purpose, in order to prevent any illegal use of
data;
28. Stresses
that extending access to the Eurodac database to Member States' police and
law-enforcement authorities as well as Europol entails the risk that
information may pass to third countries, which could have negative
repercussions for asylum seekers and their families; is convinced that this would
also increase the risk of asylum seekers being stigmatised;
o
o o
29. Instructs
its President to forward this resolution to the Council and the Commission.
Reminder
of the main provisions laid down in the Dublin II Regulation
On 18
February 2003 the Council adopted Regulation (EC) No 343/2003 establishing the
criteria and mechanisms for determining the Member State responsible for
examining an asylum application, which – together with its implementing
regulation[12] and the Eurodac regulation[13] – constitutes the 'Dublin
system'. This system currently applies to the 27 Member States and to Norway
and Iceland, and it is soon to be extended to Switzerland and Liechtenstein.
The system
(which is supposed to ensure that there is always one Member State – and
one only – responsible for considering any given application) is designed
in particular to curb the phenomenon of 'refugees in orbit', secondary
migration and multiple applications (what is commonly known as 'asylum-shopping').
It is based upon the following hierarchy of criteria (Chapter III):
1. Criteria
relating to the principle of family reunification
2. Criteria
relating to the issue of residence permits or visas
3. Criteria
relating to illegal entry on to, or illegal residence within, the territory of
a Member State
4. Criteria
relating to legal entry on to the territory of a Member State.
The Dublin
Regulation also includes two discretionary provisions which ensure that the
system has the requisite degree of flexibility. These are the 'sovereignty
clause' - which enables a Member State to examine an application for asylum
even if such examination is not its responsibility under the criteria laid down
in the Regulation (Article 3(2)) - and the humanitarian clause, which enables a
Member State (even if it is not responsible for dealing with an application
pursuant to the criteria set out in the Regulation) to examine that application
at the request of another Member State on the basis of family or cultural
considerations (Article 15).
The Dublin
Regulation establishes mechanisms for the taking charge and the taking back of
asylum-seekers (Chapter V) and it includes provisions relating to
administrative cooperation (Chapter VI).
Pursuant to
Article 28 of the Regulation, the Commission shall report - at the latest three
years after the entry into force of the Regulation - to the European Parliament
and the Council on the application of the Regulation and, where appropriate,
shall propose any necessary amendments. This own-initiative report is in
response to the Commission's evaluation.
Methodology
problems
In reading
the Commission's evaluation, your rapporteur came up against a variety of
problems which made her task an arduous one. Not even an assiduous reading of
the evaluation report and of the annex thereto enabled her at all times to follow the line of argument pursued
by the Commission in its conclusions (which are in any case fairly
insubstantial, since they comprise merely ten or so lines from the report which
have been extracted from the Commission's evaluation. In this connection it is
interesting to note that the annex - which comprises over 50 pages - contains
an introduction (in which the four criteria taken as a basis by the Commission
for 'measur[ing]' the performance' of the Dublin system[14] are set out) but no systematic
analysis of those criteria and in particular no conclusion. In these
circumstances your rapporteur has herself had to try to evaluate the
Commission's criteria in order to gauge the effectiveness of the system.
The
first criterion involved
considering 'whether the application of the Dublin system has fulfilled its
objectives, which are clearly indicated in the preamble of the Dublin
Regulation.' In its report the Commission announces
in its conclusions that 'overall, the objectives of the Dublin system, notably to
establish a clear and workable mechanism for determining responsibility for asylum
applications, have, to a large extent, been achieved[15].' Given the number of shortcomings
which the Commission very judiciously highlights in its evaluation and the
number of clarifications which it rightly intends to incorporate into the
provisions of the Regulation, such a statement (which, incidentally, is too
vague to be easily challenged) is nonetheless surprising. With regard to action
to combat the phenomena of 'refugees in orbit' and 'asylum-shopping' (which are
regarded in another part of the annex as one of the main objectives of the
Dublin system), this does not appear in all cases to have been successful,
since the percentage of multiple applications increased from 7% in 2003 to 16%
in 2005, which leads the Commission itself to conclude that the Dublin system
has not had the expected deterrent effect[16]. Therefore there is a need for
further consideration as to why the system is not working.
The
second criterion
adopted by the Commission was concerned with establishing whether the
Dublin Regulation has addressed some of the particular problems noted in the
application of the Dublin Convention ... namely, time limits for request-processing,
family unification and the systems overall efficiency, in particular the
implementation of transfers. In its report the Commission points out that the problem of transfers
(of which only about one-third actually take place) constitutes one of the main
obstacles to the effective implementation of the system[17]. As regards family reunification
(which is listed as the first criterion in the Regulation), this would appear
to be more theoretical than real, since the Commission states in the Annex that
the relevant provisions of the Regulation are only very rarely applied[18]. Where these two points are
concerned it would thus appear that the second criterion has not been entirely
met.
The third criterion was specifically concerned with the
number of effective transfers, the surprisingly low rate of which is indicative of the shortcomings
in the system and should be explained more clearly.
The
fourth criterion
was concerned with the influence of the Dublin system on the individual
asylum systems of Member States, the purpose
of the analysis being to determine whether the Dublin system benefited certain
Member States or put them at a disadvantage.
In the
rapporteurs view the Commissions analysis of the Dublin flows (which
relates to this fourth criterion) is to be questioned on various grounds.
Firstly (as the Commission itself states in the Annex), there are disparities
in the statistical data provided by the Member States[19]: for example, certain Member States
count an entire family as a single case, whereas others count each individual
member of the family. Secondly, the Commission bases its evaluation of Dublin
flows on actual transfers and not on transfers accepted but not carried out -
yet as the Commission itself admits, proper operation of the transfer mechanism
would lead to a significant increase in the number of applicants in certain
border countries. Lastly, as the Commission makes clear in its evaluation, it
would appear - in view of the surprisingly low number of illegal entrants
registered in the Eurodac database[20] - that the obligation to
fingerprint all illegal entrants at the EUs external borders is not complied
with by all the Member States. However, the data registered on Eurodac are
essential not only to the application of one of the Dublin criteria but also to
any critical, objective evaluation of the functioning and the repercussions of
the system.
In these
circumstances the rapporteur takes the view that the statement made by the
Commission in its evaluation to the effect that contrary to a widely shared
supposition that the majority of transfers are directed towards the Member
States located at an external border, it appears that the overall allocation
between border and non-border Member States is actually rather balanced is based on somewhat shaky
foundations, especially since the distinction made by the Commission between
the States located on an external border and the others is based (as your
rapporteur has ascertained) on criteria which contradict basic geography, since
Finland in particular (whose border with Russia is nearly 1300 kilometres long)
is included amongst the countries with no external border[21].
To
summarise, it would appear that the optimistic conclusion drawn by the Commission
from its evaluation (namely, that the objectives of the Dublin system ...
have, to a large extent, been achieved) is based more on a favourable bias
towards the system (which one may or may not share) than on a rigorous analysis
(which would in any case be difficult to carry out on account of the gaps and
the disparities in the data available).
Proposed
amendments to the Regulation
On the
basis in particular of the problems unearthed by the Commission, your
rapporteur suggests that the following aspects of the system should be
clarified or modified:
1.
Observance of the basic principle of non-refoulement: all requests must be examined in
detail and no file may be closed for 'procedural' reasons unless such an
examination has been carried out.
2. Applicants
must receive all relevant information concerning the Dublin system in a
language which they understand and they must have access to legal aid
throughout the procedure; they must also have the right to a suspensory appeal
against any transfer decision.
3. The
criteria for determining the age of minors should be harmonised and minors
should not be transferred other than in exceptional cases, if doing so is in
their interest; they should be duly accompanied and represented during
transfer, in order to ensure that they do not go missing.
4. The
definition of the family should be broadened, so that greater account can be
taken of applicants' legitimate interests; the provisions relating to family
reunification should be extended to the applicants for (or the beneficiaries
of) subsidiary protection.
5.
Consideration should be given to making certain provisions of the humanitarian
clause mandatory, particularly in the case of especially vulnerable people.
6. The
sovereignty clause should not be activated without the applicant's consent.
7.
Detention should not be applied other than in cases of duly justified absolute
necessity and applicants awaiting transfer should be accommodated under the
same conditions as any other applicant.
8.
Mechanisms should be devised for blocking transfers to countries which plainly
do not uphold applicants' rights or to ones which are required to cope with
strong migratory pressures at certain periods.
9. Before
any consideration is given to extending access to the Eurodac database to the
forces of order and to Europol, existing problems should be resolved and the
necessary safeguards concerning the protection of personal data should be put
in place.
Conclusions
Your
Rapporteur considers that we must bring into question whether the Dublin system
is really 'fit for purpose'. It would appear that the system is assigning a
disproportionate amount of responsibility towards Member States at the borders
of the EU, and whilst this clarifies which Member State is responsible for
examining the asylum claim, there are no real mechanisms for providing these
States' support. Furthermore, considering the importance of integration, more
account should be taken of existing links between asylum seekers and specific
Member States where a relevant community has already settled, or with which the
asylum seeker has a language or culture in common.
However,
one fundamental problem still remains, which is that until all the Member
States offer all applicants a level and a quality of protection which are, if
not identical, then at least equivalent and of high quality, applicants will
continue to have a legitimate interest in submitting their application in one
Member State rather than another, or they will be tempted to submit multiple
applications and thus to circumvent the provisions of the Dublin system. This
is a trend which restrictive application of the family-reunification criterion
would only accentuate. The problem cannot be solved through revision of the
Dublin Regulation but it should be tackled when the forthcoming instruments of
the common European asylum system are revised. As regards the Dublin
Regulation, one of the main aims of the revision should be to take the greatest
possible account of applicants' legitimate wishes, to provide them with
information and to ensure that their application is dealt with under optimum
conditions and in full accordance with the Geneva Convention.
RESULT
OF FINAL VOTE IN COMMITTEE
|
Date
adopted |
25.6.2008 |
|
|
|
|
|
Result
of final vote |
+: –: 0: |
49 1 1 |
|||
|
Members present for the final vote |
Alexander Alvaro, Mario Borghezio, Emine Bozkurt,
Philip Bradbourn, Mihael Brejc, Kathalijne Maria Buitenweg, Giusto Catania,
Jean-Marie Cavada, Elly de Groen-Kouwenhoven, Panayiotis Demetriou, Grard
Deprez, Agustn Daz de Mera Garca Consuegra, Brbara Dhrkop Dhrkop,
Claudio Fava, Armando Frana, Urszula Gacek, Kinga Gl, Patrick Gaubert,
Roland Gewalt, Lilli Gruber, Jeanine Hennis-Plasschaert, Lvia Jrka, Ewa
Klamt, Magda Ksn Kovcs, Wolfgang Kreissl-Drfler, Stavros Lambrinidis,
Roselyne Lefranois, Baroness Sarah Ludford, Claude Moraes, Javier Moreno
Snchez, Rareş-Lucian Niculescu, Martine Roure, Inger Segelstrm, Csaba
Sgor, Vladimir Urutchev, Ioannis Varvitsiotis, Manfred Weber, Tatjana
Ždanoka |
||||
|
Substitute(s) present for the final vote |
Anne Ferreira, Ignasi Guardans Camb, Sophia in t
Veld, Sylvia-Yvonne Kaufmann, Metin Kazak, Marian-Jean Marinescu, Antonio
Masip Hidalgo, Bill Newton Dunn, Nicolae Vlad Popa, Rainer Wieland |
||||
|
Substitute(s) under Rule 178(2) present for the
final vote |
Iles Braghetto, Michl Ebner, Syed Kamall |
||||