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Summary of the legal frameworks and cases of European Law: Justice and Home Affairs
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Summary of the legal frameworks and cases of the course European Law: Justice and Home Affairs
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Eurodac Regulation (603/2013/EU)Eurodac = a central data unit in which fingerprints of asylum seekers are stored and
compared, in order to detect asylum seekers residing in another Member State than the
Member State responsible.
General provisions:
Art. 1 ER: the purpose of Eurodac is to assist in determining which Member State is to be
responsible pursuant to the Dublin Regulation and to lay down the conditions under which
fingerprints can be compared.
Art. 2 ER: definitions.
Art. 9 ER: the Eurodac Regulation obliges Member States to take fingerprints from two
categories of persons: all persons who apply for asylum and all third-country nationals
who illegally cross their borders (art. 14 ER).
Art. 17 ER: Member States may, further, collect fingerprint data from third-country
nationals who are found illegally staying on their territories.
A new (and controversial) feature of the recast of the Eurodac Regulation is the access to
Eurodac data for law enforcement purposes (art. 1(2), 5-7 and 19-22 ER). National law
enforcement authorities and Europol may compare fingerprint data with the data stored
in Eurodac if such comparison is necessary for combatting terrorism or serious crime (art.
20 ER).
Are there EU rules that determine which Member State is responsible regarding
applications for international protection?
Boeles et al. (2014). European Migration Law
The transfer of asylum seekers pursuant to the Dublin Regulation is one of the most
controversial aspects of EU asylum law. This is mainly due to the divergent standards of
reception in the Member States.
Key aims:
The key aim of the Dublin Regulation is to reduce secondary movements of asylum
seekers within the EU. It serves to prevent the phenomenon of ‘asylum shopping’: asylum
seekers lodging (= staying with) multiple or subsequent applications in more than one
Member State. It also addresses the potential problem of ‘refugees in orbit’: persons who
claim, or are entitled to, protection without any Member State acknowledging
responsibility for examining or accepting the claim.
Countries in the Dublin Regulation:
The United Kingdom and Ireland have opted in to the Regulation and Denmark does not
take part in it. Non-EU members, Norway, Iceland, Switzerland and Liechtenstein took
part in the existing Dublin acquis by virtue of separate international agreements, and
must, under these agreements, accept its development without exception.
Dublin III Regulation (604/2013/EU)
Two basic obligations of the Member State responsible:
1. Art. 18(1) DR: to either take charge of an asylum seeker who lodged his application in
a different Member State or to take back an asylum seeker who lodged his application in
the Member State responsible, but who subsequently left for another Member State,
regardless of whether the application is still under consideration or has been withdrawn
or rejected.
, 2. Art. 18(2) DR: the responsible Member State must complete the examination of the
application or, in case the application had already been rejected, provide effective
remedies against the rejection.
Rules on the cooperation between Member States for effectuating transfers:
Art. 21-22, 29 DR: the procedure on taking charge.
Art. 23-25, 29 DR: the procedure on taking back.
Art. 27(3) DR: appeals must suspend the transfer, either automatically or upon request.
Art. 28(1) DR: the principle that persons may not be detained for the sole reason that
they are subject to a Dublin procedure. Detention is only allowed if four conditions are
fulfilled (art. 28(2) DR):
There must be a significant risk of absconding (= onderduiken)
Detention may only occur on the basis of an individual assessment
Detention must be proportional
No other less coercive alternative must be available
Art. 28(3) DR: this article sets limits for the duration of detention.
Drawbacks in the Dublin system:
The criteria do not distribute asylum seekers evenly among the Member States:
they have some effect of shifting the burden to countries at the EU southern and
eastern external borders. This is primarily a result of art. 13 ER
The allocation criteria do not reflect the guiding principle established by UNHCR in
1979 that the identification of the country responsible for examining an asylum
request should, as far as possible, be informed by the intentions of the asylum
seeker as regards the country in which he wishes to request asylum
The recast of the Dublin Regulation has only partially addressed the fundamental
issue of Member States that are too unsafe to receive Dublin transfers, as has
been the case with Greece since 2011
The evaluation report on the functioning of the Dublin mechanism published by
the European Commission in 2007 shows that the Dublin Regulation does not work
as effectively as envisaged. A relatively low rate of transfers is actually effected.
The main reason for this is that asylum seekers often abscond after they have
been informed that they will be transferred to another Member State
Procedural safeguards for the asylum seeker:
Art. 4 DR: the right to be informed about the Dublin procedure
Art. 5 DR: the right to a personal interview
Art. 6 DR: special guarantees for minors
Art. 27 DR: the right to appeal a transfer decision
Art. 28 DR: detention is only possible under four conditions
Can a transfer under Dublin III Regulation be stopped due to human rights violations?
The obligation to be a safe state:
One of the premises of the Dublin mechanism is that all Member States are safe countries
in which transferred asylum applicants will be granted appropriate protection according
to international agrees standards.
Art. 3 ECHR: the prohibition of refoulement when a Member State carries out the
Dublin mechanism and transfers an applicant to another state, it is not relieved from the
duty to ensure that the transfer does not result in exposure to a real risk of ill-treatment.
Human rights considerations may oblige Member States to set aside the Dublin criteria.
Art. 4 CFR: this article lays down the prohibition on torture or inhuman or degrading
treatment. This precludes the transfer of an asylum seeker from one Member State to
another Member State if there are systemic deficiencies in the asylum procedure and
reception conditions in the receiving Member State that give rise to a real risk of the
asylum seeker being subjected to inhuman or degrading treatment.
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