Definition and Purpose of the Dublin III Regulation
Die Dublin III Regulation (Regulation (EU) No. 604/2013) is a key instrument of the European asylum system and establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection (asylum application) in the European Union. It was adopted by the European Parliament and the Council on 29 June 2013 and has been directly applicable in all EU Member States as well as the associated Schengen States (Iceland, Liechtenstein, Norway, Switzerland) since 1 January 2014. Its objective is to prevent multiple applications in different states and to ensure an orderly decision-making process.
Legal Background and Development
Historical Framework
The Dublin III Regulation builds on previous regulations: the Dublin Convention of 1990 and the Dublin II Regulation (EC) No. 343/2003. The Dublin III Regulation introduced extensive substantive modifications and procedural consolidations to enhance fundamental rights protection and the efficiency of the asylum procedure.
Legal Foundations
As an EU Regulation, the Dublin III Regulation is directly applicable law and does not require transposition into national law. In addition, the Eurodac Regulation and legal acts setting minimum standards for reception conditions and recognition procedures apply.
Scope of Application and Territorial Scope
The Regulation applies to all applications for international protection made in the territory of a Member State, including border and transit areas, as well as in connection with irregular residence. It applies both to asylum seekers and to third-country nationals and stateless persons.
Systematics of Determining Responsibility
Order of Responsibility Criteria
Articles 7 to 15 of the Dublin III Regulation provide a stepwise order of criteria for determining the responsible Member State, including:
- Residence of family members with protection status
- Previous granting of international protection
- Issuance of residence documents or visas
- Irregular entry or residence
- Border crossing
- Entry accompanied by minors
Best interests of the child take precedence
For unaccompanied minors, the Regulation stipulates a clear priority for the best interests of the child and family reunification as the decisive criterion.
Procedural Provisions
Initiation of the Dublin Procedure
After lodging an asylum application, the State in which the application was submitted examines, based on the criteria, whether another Member State is responsible (self-assessment obligation). If it turns out that another State is responsible, that State must be requested within specified time limits for the takeover or re-admission of the applicant.
Deadlines and Procedural Timelines
Strict deadlines apply to requests for takeover and re-admission (Art. 21 et seq. Dublin III Regulation). The request must be made within two months, and the requested State generally has two months to respond. If a request remains unanswered within this time limit, consent is deemed to have been given.
Execution of the Transfer
If the responsible State agrees or is deemed to have agreed, the applicant is generally transferred within six months. If the responsible State misses this deadline, responsibility shifts to the requesting State.
Legal Protection and Procedural Guarantees
The applicant has a remedy against transfer decisions, which may have suspensive effect (Art. 27 Dublin III Regulation). Furthermore, there are extensive information obligations (Articles 4, 5 Dublin III Regulation) as well as special guarantees for vulnerable persons, particularly minors.
Legal Protection and Fundamental Rights
Procedural Rights
The Dublin III Regulation establishes the right to an effective remedy against transfer decisions, including access to interpreting services and legal information. National courts must particularly observe the protection of fundamental rights under the EU Charter of Fundamental Rights and the European Convention on Human Rights when handling appeals.
Exceptions to the Responsibility Mechanism (Discretionary Clause and Humanitarian Clauses)
Article 17 of the Regulation provides for the so-called discretionary clause: Any State may voluntarily declare itself responsible for examining an application, even if it would not be primarily responsible according to the criteria. In addition, humanitarian clauses (Articles 16, 17) govern special cases involving family or humanitarian hardship.
Cooperation and Obligations of Member States
Data Transmission and Data Protection
The Dublin III Regulation governs the transmission of personal data in compliance with the data protection requirements of the Eurodac Regulation and other relevant provisions. These data serve to establish identity and determine responsibility.
Cooperation in Special Cases
When transferring vulnerable persons, particularly minors or seriously ill individuals, special coordination obligations and requirements regarding the proportionality of the measure apply.
Criticism and Discussions on Reform
The practice of the Dublin III Regulation is regularly discussed, particularly due to the unequal distribution of asylum applications among EU Member States (keyword: “first country of entry problem”) and the overburdening of states at the EU’s external borders. The European Commission has recently put forward proposals to reform the Common European Asylum System in order to achieve a more solidarity-based and effective allocation of responsibilities.
Literature
- Regulation (EU) No. 604/2013 (Dublin III Regulation)
- Federal Office for Migration and Refugees, “The Dublin III Regulation – System and Application”, internal materials
- Hailbronner, K., “EU Asylum Law: System and Jurisprudence”, in: Handbook of Immigration Law
This article provides a comprehensive, systematic and objective description of the Dublin III Regulation, its legal foundations, as well as its practical and procedural effects in European asylum law.
Frequently Asked Questions
What role does the discretionary clause under Art. 17(1) Dublin III Regulation play in the procedure?
The discretionary clause under Art. 17(1) of the Dublin III Regulation (Regulation (EU) No. 604/2013) is a discretionary power of the Member States and constitutes a central exception to the strict responsibility mechanism of the Regulation. Accordingly, any Member State—even if it is not responsible under the Regulation’s provisions—may decide to examine an asylum application lodged with it. Legally, this is a genuine and broad administrative or official discretion, which, however, is subject to the general principles of EU and national administrative law, particularly the principle of effective legal protection, equal treatment, and the prohibition of discrimination. The application of the discretionary clause is not tied to specific substantive requirements but is entirely within the political or humanitarian discretion of the respective Member State. Practical cases arise, for example, in situations of family hardship, humanitarian considerations, or special need for protection, without the Dublin III Regulation providing a catalogue of mandatory situations to be considered. The applicant generally does not have a legal right to the exercise of this discretion but can seek judicial protection in accordance with the principles of administrative law and before national courts if the authority fails to exercise its discretion or does so incorrectly.
How does the transfer procedure work and what deadlines must be observed?
The transfer procedure is essentially governed by Articles 29, 30, and other provisions of the Dublin III Regulation. Once the responsibility of another Member State has been established and that State has agreed to the takeover or re-admission, the notification of agreement triggers the transfer deadline—usually six months—within which the actual physical transfer of the asylum applicant must take place. If the transfer is not carried out within this period, responsibility automatically—by law—reverts to the requesting Member State (“effect of expiration of the time limit”). The deadline may be extended in certain cases, such as when the applicant is detained (extension to 18 months) or has absconded (extension to 12 months). The method of transfer must comply with fundamental rights and humane conditions; any use of force is subject to strict legal and ethical standards. Within the procedure, all participants and procedural steps are subject to detailed obligations to inform, cooperate, and document.
What legal remedies are available to asylum seekers against a transfer decision?
According to Art. 27 Dublin III Regulation, there is a subjective legal remedy against a transfer decision, which must comply with the principle of effective judicial protection pursuant to Art. 47 of the EU Charter of Fundamental Rights. The asylum seeker has the right to either an “automatic suspensive” or at least a “suspensive” legal remedy, i.e. the transfer is suspended until a decision is made on the application or a court explicitly authorizes it. Acts subject to remedy concern both the actual determination of responsibility and the order for transfer. In substance, the following in particular may be reviewed: the existence of the responsibility criteria, observance of procedural rules and protection guarantees under EU and national law, as well as any systemic deficiencies in the asylum procedure of the destination state (key case law: CJEU, “NS/ME” judgment). The national design and time limits for the remedy are determined by the respective procedural codes but must be effective, accessible, and proportionate.
By what criteria is a Member State’s responsibility for examining an asylum application determined?
The Dublin III Regulation defines a phased assessment of responsibility in Articles 3 et seq., which must be followed hierarchically. First, responsibility is determined primarily on the basis of family ties and particularly vulnerable groups (such as minors, those in need of protection, core family members). Second, objective criteria apply, such as the issuance of a visa or residence permit, for example, by a particular Member State within the last six months. The criterion of crossing the EU external border is then decisive: the Member State in which first entry—and thus often biometric registration (Eurodac system under Regulation (EU) No. 603/2013)—takes place will be responsible. Alternatively, an assessment is made as to whether an asylum procedure is already pending or has been completed in another Member State. The application of the criteria is mandatory; national prerogatives or deviations are only possible in exceptional cases, such as through the discretionary clause.
What information and hearing obligations does the Dublin procedure entail towards the applicant?
Articles 4 and 5 of the Dublin III Regulation set out extensive rights to information and to be heard in order to safeguard the applicant’s procedural rights. Already at the time of application, the applicant must be comprehensively informed in a language he or she understands, both in writing and orally, about the Dublin procedure, its purpose, course, possible consequences, and his or her legal rights and obligations (especially regarding transfers, legal remedies, and deadlines). The hearing obligation under Art. 5 requires the competent authority to grant the applicant the right to be heard so that he or she may present facts or circumstances relating to personal situation, family connections, or medical problems that affect the assessment of responsibility or a possible suspension of the transfer. Breaches of these obligations may amount to procedural errors with corresponding legal consequences, including the invalidity of the transfer decision.
What is the significance of so-called “systemic deficiencies” in the asylum system of the responsible Member State?
Systemic deficiencies refer to structural shortcomings in a Member State’s asylum system that can result in violations of fundamental rights, particularly with respect to humane reception conditions, access to asylum procedures, and effective legal protection. According to leading case law (CJEU, “NS/ME” judgment, C-411/10) as well as Article 3(2) Dublin III Regulation, a transfer to a Member State is inadmissible if there are substantial grounds for believing that the applicant would face inhuman or degrading treatment there within the meaning of Article 4 of the EU Charter of Fundamental Rights (or Article 3 ECHR). Authorities and courts are required to examine and, if applicable, document the current, concrete situation of the asylum system in the relevant Member State. If systemic deficiencies are found, another Member State must be determined as responsible by further application of the responsibility criteria; in the most extreme case, the country initially dealing with the application must conduct the asylum procedure. Authorities must examine such indications independently and may not merely rely on general assurances from other Member States.
