Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Lecturer, School of Legal Studies, CUSAT, Kochi)).
The basic right when we talk about the concept of rights of asylum seekers is the right of non-refoulement which is a part of right not to return. The right of non-refoulement is a right closely associated with right against torture and degrading treatment. The right can be found impliedly mentioned under article 3 of the ECHR which has been clarified to be having wide ambit when compared with the provisions of the Refugee Convention, 1951 as has been held in the case of Chahal v. UK. The European Convention seems to the best international document which protects the rights of refugees in the sense that it provides for an effective enforcement mechanism when compared to the other protections at the international level ((Helene Lambert, ‘Protection against Refoulement from Europe: Human Rights Law comes to the Rescue’ (1999) 48 Int’l & Comp. L.Q. 515, 516)).
Dublin Convention
The Dublin Convention is considered as the first attempt at the international level to maintain a cooperative system of interactive action which has tried to solve to a certain extent, the question of state responsibility in regard to asylum seekers ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 9)). The member state responsible for considering the asylum application is dealt with under articles 4 to 8 of the convention and it should be noted that the basic reason for its enactment, as stipulated in the Preamble, “is to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum.” According to the convention, the Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State, in compliance with the provisions of the Geneva Convention as per article 3(5). It is submitted that from a legal point of view there should be an evaluation of the exact contacts and connections which the applicant has with the third country or else the adequacy of his protection in that country cannot be guaranteed ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 11)).
The Dublin Convention is often stated to be a burden sharing mechanism on the basis that only one member state can be made responsible for determining asylum claims but it seems to be lacking in clarity because of the fact that there exist uncertain as well as lengthy procedures in case of applicants illegally crossing borders ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 18)). At the same time, it has also been stated that the Dublin Convention is not an efficient system and there should be a reassessment of responsibility sharing arrangements within the EU as there is no genuine cooperation between the states and also due to the complex procedure involved in the transfer of asylum seekers ((Agnes Hurwitz, ‘The 1990 Dublin Convention: A Comprehensive Assessment’ (1999) 1 Int’l J. Refugee L. 646)).
Objectives and Criticisms
The main objective of the Dublin Convention is to avoid any situations where applicants for asylum are left in doubt for too long as regards the likely outcome of their applications. The secondary objective of the convention is to provide all applicants with a guarantee that one of the Member States will assume responsibility for considering their asylum application. One important aspect of the convention is its ability to tackle multiple asylum applications. The convention also prevents the asylum applicants from travelling within the European Union before deciding where to lodge an application for asylum and it also takes care of Family Unity.
But the convention has also been criticized for many reasons. The convention has been criticized most often for taking too much time in processing applications. The problem of delay in processing the applications will result in the failure of accomplishing the main objectives of the convention and as the convention permits the member state to send the applicant to a third state, problems may occur when the requesting state and the member state to which the request state is made have contradicting views about the safety in the third state. It has also been criticized for not detailing on the rules on ‘taking back’ as problems may continue to exist if national legislations and policies apply different set of procedures that may eventually lead to prevention of transfers. The provisions relating to the family unity in the convention are very limited and that the convention is also devoid of any objective criteria to preserve family unity especially in cases where an asylum applicant has a family member who is legally resident but not recognized as a refugee in one of the Member States. The Convention does not take care of equitable distribution of asylum applicants between the Member States which had resulted in the situation where some states receive more asylum seekers which creates an excessive burden on such states.
Effectiveness of the Dublin Convention
Less than two percentage of transfer have taken place between member states and it should also be noted that the transfer arrangements are not that satisfactory as the number of transfer requests accepted by the Member State to which they are directed is considerably greater than the number of transfers actually implemented. Moreover there is a clear lack of evidence which makes it unable to figure out the implementation of the principle that the Member State responsible for a person’s presence on the territory of the Member States is responsible for any subsequent asylum claim. The lack of judicial oversight as the Court of Justice of the European Communities has no jurisdiction to interpret the Dublin Convention and at the same time the committee which has been empowered in this regard has not succeeded in uniform application. The need for reasons why a recognized refugee might want to apply for asylum in another Member State to be specified in the convention and the inapplicability of the convention to refugee claims under European Convention on Human Rights or under other international conventions are also regarded as drawbacks of the Dublin Convention.
Commission Of The European Communities, SEC (2000) 522, Commission staff working paper : Revisiting the Dublin Convention: Developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States
It was the treaty of Amsterdam that made significant amendments to the Treaties that effectively necessitated the fact that the Dublin Convention should be replaced with a Community legal instrument within a time period of five years from the entry into force of that Treaty. Article 63(1)(a) required that the Council should adopt “criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States” and that is what has been achieved precisely by the Council Regulation (EC) No 343/2003. The need for a Common European Asylum System was also called for by the European Council during the special meeting held in Tampere on October 1999.
The developments that are stated to have taken place after the conclusion of the Dublin convention were the realisation of free movement of persons without internal frontiers (Schengen Cooperation is an example), the enlargement of the EU as more and more states joined after the Dublin convention and the development of the Eurodac system (fingerprint system in place of travel and identity documents) which provided for the collection and comparison of fingerprint data on applicants for asylum in order to facilitate the identification of cases where an applicant for asylum had previously claimed asylum in another Member State.
Dublin II: 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 main objective behind this regulation that replaces the Dublin Convention ((Article 24))is stated in the Preamble and it states that “the processing together of the asylum applications of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly and the decisions taken in respect of them are consistent.”
Examination of Relevant provisions
According to article 4(4) when an application for asylum is lodged with the competent authorities of a Member State by an applicant who is in the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for asylum was lodged. As per Article 5(2) 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.As per article 6 in the case of an unaccompanied minor, the member state responsible for examining the application will be the state where a member of his or her family is legally present and in the absence of a family member, the state where he has lodged his application. As per article 7 where the person has a family member who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining his application. According to article 9 the member state which has issued the valid residence permit shall be the responsible member state for examining his application. Similar is the case where a member state has issued a visa. In case there are more than one visa or residence permit, the member state shall be determined on the basis on longest period of residence, latest expiry date etc. As per article 10, if it is proved that an asylum seeker has entered a member state irregularly the member state thus entered shall be the responsible state and the responsibility shall cease to exist on the expiry of I year from the date of irregular crossing. According to article 13 when it is impossible to name a member state the first member state where application has been lodged will be considered as the responsible state.
One of the most important point behind the regulation can be seen in article 15 which states that “any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned.” It is to be noted that the regulation by virtue of this provision brings in family unification but the condition stipulated in article 7 settles the problem of disruption in family unity only partially ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 185)). An important change is made in regard to the time limit in the Dublin Regulation when compared to the Dublin Convention. Article 17 allows three months time limit from the time of lodging the application, in case where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application and decided to call upon the other Member State to take charge of the applicant and article 18 prescribes two months time for the requested member state to come to a decision and the time runs from the date on which the request was received. There is an additional time of one month granted under clause 6 of article 18 (in case where the examination is complex) and as per clause 7 of the same provision if the state fails to respond to the request, it would be deemed as if it has accepted the request. If the applicant is in detention, the state can also ask for an urgent reply. The rules on procedures are left with the domestic law as per the convention but the Dublin Regulation contains provisions regarding the same as under article 18 (4) the applicant shall be informed if another state is requested to take charge of his application.
The procedure for transfer of the applicant is provided under article 19 and further cooperation between member states can be found in article 21 which deals with administrative cooperation. Refusal to respond to a request by a member state may includefactors like “if the communication of such information is likely to harm the essential interests of the Member State” or “the protection of the liberties and fundamental rights of the person concerned or of others” as stipulated by 20(4). Moreover as per article 20(2) and 21(1)(e) the appeals lie to the courts against the decision on inadmissibility and transfer. The asylum seeker has a right to be informed and also is also entitled to have the information blocked or erased or corrected if it is found to be in breach of the regulation ((Article 21(9).)). It is submitted that rather than mere general assessment, a detailed analysis of the safety of the applicant in the country is to be done before sending him to the particular country by the member state and that the member state should see to it that the applicant is given adequate protection in that state and not sent to a third host state ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L .7, 11)).
Drawbacks of Dublin Regulation
It is stated that the practice of examining asylum application under the Dublin system by the EU border states has not been very successful when it comes to the practical level as some of the countries such as Greece and Malta have not been able to provide adequate protection due to the enormous increase of asylum seekers and as lives are at risk in these type of cases it is often stated that the Dublin Regulation has to be revised. The main reason for a claim for revision is the fact that there is notion that all the EU member states provide high standards of protection to refugees which is not true in practice and that the regulation does not guarantee that the responsibility for asylum seekers is shared among the EU nations ((Thomas Hammarberg, ‘The ‘Dublin Regulation’ undermines refugee rights’ <http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=80> accessed 13th January 2011)).
It is to be noted that the EU member states should stop transferring the asylum seekers back to countries where they face extreme hardships in regard to asylum procedures and this fact can be corroborated by the huge number of applications that came up before the Strasbourg Court (around 700 cases) in the year 2009-10 claiming for suspension of their transfers ((Article 3(3) of Dublin II: Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention)). The extension of the time period from nine to ten months for the application until transfer is often criticized as it is in direct conflict with the objective of rapid processing of asylum application mentioned in the Preamble ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 185)). The rise in the use of detention mechanisms for asylum seekers who are subject to be transferred to another nation due to the fear of absconding before the transfer is also pointed out as a drawback of the Dublin regulation. The suggestion of the European Commission in this regard that “it should be possible to suspend transfers and give states under particular strain short-term relief from their responsibilities under the Dublin Regulation” is deemed as the right approach ((Thomas Hammarberg, ‘The ‘Dublin Regulation’ undermines refugee rights’ <http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=80> accessed 13th January 2011)). It is stated that it is still questionable as to whether the Regulation removes the shortcomings of the convention because both are based on the same principle that responsibility lies within the member state that plays the greatest part in the applicant’s entry or residence in the EU and does not depend upon where the application is lodged ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 184)).
Eurodac
Eurodac which was established by the EC Regulation no. 2725/2000 can be defined to be a database containing fingerprints of asylum seekers which helps in determining member states responsible for the examining of asylum application. The mentioning of the same can be found in Article 21(c) of the Dublin II regulation which states that the Member State shall communicate to any Member State that requests the personal data concerning the asylum seeker which includes any information necessary for establishing the identity of the applicant, including fingerprints processed in accordance with Regulation (EC) No 2725/2000.
The main reason for planning to take fingerprints of illegal immigrants is because of the large number of immigrants from Iraq to Europe. According to Article 2 of the 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, Eurodac shall consist of the Central Unit, a computerized central database in which the data are processed for the purpose of comparing the fingerprint data of asylum applicants and means of data transmission between the Member States and the central database. The Council Regulation (EC) No 2725/2000 deals with taking finger prints of aliens who is apprehended by the competent control authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back (article 8) and aliens found illegally present in a member state (article 11). In regard to the former category the Central Unit may not compare the data collected with those previously recorded in the database and with those subsequently transferred to the Central Unit ((E.R. Brouwer, ‘Eurodac: Its Limitations and Temptations’ (2002) 4 Eur. J. Migration & L. 231,235)). The latter category data can only be transmitted to the Central Unit to compare it with the fingerprint data of asylum applicants transmitted by other member states which is already recorded in the database. As per article 10 the fingerprint data collected in pursuant to article 8 can be stored in the central database for 2 years after which it will be deleted automatically whereas the fingerprint data collected with regard to the second category should not be recorded in the database at all ((Id. at p. 236)). Collection of data of both these categories of persons has been stated to be unjustified for the following reasons ((Ibid)):
1) As these persons have not applied for asylum it is doubtful as to whether the obligations can be based on the Dublin Convention.
2) The difficulties posed by different interpretations of the definitions of illegal border crossing or illegal presence by different states.
According to article 17 of the Regulation the person or a Member State which has suffered damage as a result of an unlawful processing operation or any act incompatible with the provisions laid down in this Regulation shall be entitled to receive compensation from the Member State responsible for the damage suffered. The person whose data is collected will have the rights under article 18 to get information regarding the identity of the controller and of his representative, the purpose for which the data will be processed within Eurodac, the recipients of the data, in relation to a person covered by Article 4 or Article 8, the obligation to have his/her fingerprints taken and the existence of the right of access to, and the right to rectify, the data concerning him. According to clause 6 of article 18 the Member State shall also provide the data subject with information explaining the steps which he/she can take if the person does not accept the explanation provided and shall include information on how to bring an action or, if appropriate, a complaint before the competent authorities or courts of that Member State and any financial or other assistance that is available in accordance with the laws, regulations and procedures of that Member State. If any state refuses access, the person concerned can bring a complaint before the competent authorities and courts as provided under article 18(11). Article 19 provides that each Member State shall provide that the national supervisory authority shall monitor independently, in accordance with its respective national law, the lawfulness of the processing, in accordance with this Regulation, of personal data by the Member State in question, including their transmission to the Central Unit and according to article 20 an independent joint supervisory authority shall be set up which shall have the task of monitoring the activities of the Central Unit to ensure that the rights of data subjects are not violated by the processing or use of the data held by the Central Unit and shall monitor the lawfulness of the transmission of personal data to the Member States by the Central Unit.
There was also an issue raised as to whether the taking of fingerprints from asylum seekers is incompatible with the ECHR rights especially in relation to article 8 with deals with right to privacy. It should be kept in kind that in Netherlands there was a discussion on account of the fact that the fingerprint data of both the asylum seekers and criminal suspects were stored in the same database which had resulted in the use of data of asylum seekers for criminal investigations ((Supra n.15)). Moreover use of these databases in regard to fingerprints of asylum seekers for police purposes as suggested by the German government and for other uses should be properly regulated and if not regulated with sufficient legal backing, can cause severe damages to the applicant. Concerns are also raised in regard to the retention of these data in the database for a longer period (10 years) as there are chances of misuse ((Supra n.16)). Furthermore concerns have also been raised in regard to the fact that the individual may have to wait longer if the governments and the commission being the responsible institutions for the Central Unit choose not to undertake any responsibility for repairing the damage caused to the asylum seeker as most of the rules in regard to Eurodac have to be executed in accordance with national laws and procedures ((Ibid)).
Report From The Commission To The European Parliament And The Council on the evaluation of the Dublin system {SEC(2007) 742}
The report shows that there has been a significant mismatch between the numbers of requests and decisions that each Member State reports to have received from other Member States and numbers of requests and decisions that each Member State reports to have sent to other Member States. Another major challenge faced by the Regulation is that uniform application is not always possible as Member States do not always agree on the circumstances under which certain provisions should apply which has been very evident especially in cases coming under the sovereignty clause and the humanitarian clause. Moreover there has been always a problem of the evidence required for accepting to take charge of an asylum seeker because it is often difficult to provide. As regards the implementation of Eurodac, the states take sometimes over 30 days to send the data which has resulted in the wrong determination of the responsible Member State. The low registration of illegal entrants is also seen as a major problem as it can have an adverse impact on the effective application of the obligation to fingerprint all illegal entrants at the borders of the Union.
Regina v. Secretary of State For The Home Department, Ex Parte Adan & Regina v. Secretary of State For The Home Department Ex Parte Aitseguer, 19 December 2000 (HL)
The case is relevant as it dealt with the different interpretations given to the term persecution by different states.
Adan was a citizen of Somalia and claimed asylum in Germany as she had been persecuted by majority clans dominant in her state. The German Federal Office rejected her asylum claim and was ordered to leave Germany. She claimed asylum in the United Kingdom where the Secretary of State asked the German authorities to accept responsibility under the 1990 Dublin Convention. The German authorities accepted responsibility for determining her asylum claim after which the Secretary of State refused her asylum claim without consideration of its merits and certified that Adan could be returned to Germany but was later accepted by the Secretary of State that it would not be right to seek to return Adan to Germany. Aitseguer who is a citizen of Algeria arrived in the United Kingdom and claimed asylum as he was under the risk from the Groupe Islamique Arme where the Secretary of State asked the French authorities to accept responsibility under the Dublin Convention which the French authorities agreed to do. Later the Secretary of State certified under section 2 of the Asylum and Immigration Act 1996 that Aitseguer could be returned to France but was later accepted by the Secretary of State that he would himself determine the asylum claim.
The main issue involved centered around section 2(2) (c) of the Asylum and Immigration Act 1996 which allows a person who has made a claim for asylum to be removed from the United Kingdom if, inter alia, the Secretary of State certifies that in his opinion “the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention”. Now the basic problem involved was that Germany would probably send back Adan to Somalia as according to Germany there was no state or government in Somalia which could carry out the persecution and France would probably send back Aitseguer to Algeria as according to France, the persecution which he feared was not encouraged by the state. If the persons are sent back to the state where he fears persecution it would be in violation of article 33 of the 1951 Convention which states that “no Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. With regard to the question as to whether Secretary of the state for UK can send these individuals to countries if the other state adopts an interpretation of the 1951 Convention which the Secretary of State rejects but which the Secretary of State accepts is a reasonably possible or legitimate or permissible or perhaps even arguable interpretation, the judge observed that persecution may be by bodies other than the state and is accepted under the 1951 convention and the Secretary of State is neither bound nor entitled to follow an interpretation which he does not accept as being the proper interpretation of the Convention and what is required under the 1996 act is that the Secretary of State must certify that the third country would not send the asylum seeker to his country of origin where he fears to be persecuted.
TI v. UK
The applicant was a Sri Lankan national who was tortured by the LTTE and later by the army. He arrived in Germany and claimed asylum but was rejected on the basis that there was no ground for the applicant to fear persecution as a consequence of his having claimed asylum in Germany. Later, he travelled to the United Kingdom and the United Kingdom Government requested that Germany accept responsibility for the applicant’s asylum request pursuant to the Dublin Convention and, the Secretary of State issued a certificate under section 2 of the Asylum and Immigration Act 1996 and directed the applicant’s removal to Germany. Later the medical evidence given by him proved that the details given of his detention were completely consistent with the descriptions of Sri Lankan detention centres given by other asylum seekers. In the application before the European Court of Human Rights the applicant submitted that there are substantial grounds for believing that, if returned to Sri Lanka, there is a real risk of facing treatment contrary to Article 3 of the ECHR ((No one shall be subjected to torture or to inhuman or degrading treatment or punishment))at the hands of the security forces, the LTTE and the pro-Government Tamil militant organisations. It should be noted that the German authorities only treated as relevant the acts of the State and that they did not consider excesses by individual State officials as State acts. Though the application before the court was declared inadmissible it could be implied from the observations of the court that a member state responsible in considering an asylum application should not expel the person back from the country to a third country where he fears persecution in breach of article 3 of the ECHR.
This case is relevant when it comes to the concept of safe third country exception which allows the transfer of applicants without previous application of the merits. This is because the transferring state may refuse to go into the merits on the basis that the third country is safe. The presumption is made rebuttable but it is recommended that “When the present proposals for binding instruments on asylum law are adopted, the basis for the trust will be correspondingly extended. As far as these instruments bind the Member States to interpret and apply their international law obligations in conformity with its true meaning and those Member states do comply with these obligations, the interstate trust is absolute and cannot be rebutted ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 189)).”
Conclusion
It was also argued by many that the principles of ECHR as well as CAT should be incorporated into the Community Law so that the European Court of Justice may act as the supervisory body but it seems doubtful as to what extent the same has been incorporated. There have been serious flaws pointed out in the implementation of the Dublin Regulation in the Summary Report on the Application of the Dublin II Regulation in Europe (March 2006) by the European Legal Network On Asylum, according to which from 2004 the Greek authorities have been interrupting the examination of asylum applications for persons who have been returned to Greece under the Dublin II procedure on the basis Article 2(8) of the Presidential Decree 61/99, which allows the Ministry of Public Order to interrupt the examination of an asylum claim when the applicant arbitrarily leaves his/her stated place of residence ((Concerns have been raised also by the UNHCR with regard to the same and the UNHCR has advised other governments to refrain from returning asylum-seekers to Greece under the Dublin Regulation until further notice. This information can be obtained from ‘UNHCR Position On The Return Of Asylum-Seekers To Greece Under The “Dublin Regulation”, United Nations High Commissioner for Refugees (UNHCR), 15 April 2008)). It is also stated that the applicants who leaves the responsible state may find it difficult to have their cases re-opened if a decision was made in their absence and the same has happened in Belgium, France, Ireland, Italy, the Netherlands and Spain. The necessity of adequate reception facilities (in the light of Chechens who are forced to leave Poland due to non adequate reception facilities) and proper legal assistance is also mooted. Moreover the sovereignty clause is no longer applied in Austria and the case studies from the UK indicate the fact that several cases of separated children are detained in Greece for prolonged periods of time.