Definition and Fundamentals of the Dublin Agreement
In the context of migration and asylum law, the Dublin Agreement refers to a set of European regulations designed to determine which state within the European Union (EU), or associated states, is responsible for conducting an asylum procedure. At its core, the Dublin system aims to prevent multiple applications by asylum seekers in different countries and to ensure the swift processing of asylum applications.
Origin and Development
The original Dublin Convention was signed in Dublin in 1990 and has been in force since 1997. Over the years, it has been further developed and replaced by regulations, with the “Dublin III Regulation” (Regulation (EU) No. 604/2013) currently being decisive. The Dublin Regulations form an integral part of the Common European Asylum System (CEAS).
Objectives
- Determination of the responsible state for examining an asylum application
- Prevention of multiple applications in several Member States (“asylum shopping”)
- Prevention of the so-called “refugees in orbit” problem (constant transfer of asylum seekers without substantive examination of the application)
Legal Scope of Application
Personal and material scope
The Dublin Agreement applies to all third-country nationals and stateless persons who submit an asylum application in a Member State. It applies in the EU Member States as well as in associated states such as Norway, Iceland, Switzerland, and Liechtenstein.
Applicable Legal Acts
- Dublin III Regulation (EU) No. 604/2013
- Implementing Regulation (EU) No. 118/2014
- Relevant provisions from the asylum procedure law of the Member States
Criteria for Determining Responsibility
In order to determine the responsible Member State, the Dublin Agreement establishes a graduated set of criteria, which are examined in sequence:
- Family Members: Priority is given to the state in which family members of the applicant are present.
- Issuance of Residence Documents/Visas: If a Member State has already issued a visa or residence permit, it is generally responsible.
- Entry (irregular or regular entry): The state through which the applicant first entered the Dublin area, whether irregularly or legally.
- Particular Need for Protection: For example, in the case of unaccompanied minors.
Only if none of these criteria establish responsibility is the country in which the asylum application was lodged responsible.
Secondary Obligations
Member States are required, within defined timeframes and procedures, to ensure the transfer of applicants to the responsible state. At the same time, they are obliged to provide special protection to certain groups, such as family members or particularly vulnerable persons.
Procedures and Processes
Determining Responsibility
Once an asylum application is lodged, the relevant state examines responsibility under the Dublin rules. A specific Eurodac fingerprinting system assists in identifying and tracking asylum seekers.
Hearing and Legal Remedies
Before a transfer to another Dublin state, the affected individual must be heard. He or she has the right to apply for judicial review of a transfer decision within a certain timeframe.
Transfers and Deadlines
The actual transfer takes place in compliance with procedural safeguards and set deadlines (usually six months after acceptance of the take-charge request). If the transfer is not carried out within the deadline, responsibility passes to the transferring state.
Legal Protection and Exceptions
Legal Remedies
Affected asylum seekers have the right to appeal against decisions based on the Dublin Regulation. These remedies must be effective and may include both formal and substantive objections to the transfer.
Humanitarian Clauses (“Discretionary Clause”)
The Dublin III Regulation allows Member States to deviate from the rules of responsibility for humanitarian reasons (“discretionary clause”): A state may examine an asylum application even if it would not be responsible under the Dublin rules, if this serves exceptional humanitarian circumstances.
Special Regulations for Vulnerable Groups
Specific protection provisions apply to minors and other vulnerable groups. There are specific requirements to safeguard the welfare of the child and for family reunification.
Criticism and Reform Discussions
Practical Challenges
- Excessive burden on border countries such as Greece and Italy (“first-country-of-entry” rule)
- Delayed procedures and transfers
- Inconsistent application and criticism regarding the effective guarantee of human rights in the Dublin area
European Reform Proposals
In light of ongoing migration movements and criticism of the existing system, reforms have been discussed for years. Proposals include a more comprehensive distribution of asylum seekers among all Member States, a centralized application process, and greater consideration of family and humanitarian aspects.
Significance in Practice
The Dublin Agreement has far-reaching effects on asylum and migration law in Europe. It essentially regulates how asylum seekers are distributed within the EU and provides a legal basis for determining the state responsible for the substantive examination of asylum applications. However, practical implementation is subject to ongoing political and humanitarian challenges, which are continually subject to legislative adjustments and judicial oversight.
Literature and Further Legal Sources
- Regulation (EU) No. 604/2013 of the European Parliament and of the Council (Dublin III)
- European Convention on Human Rights (in particular Art. 3 ECHR)
- Case-law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) on the Dublin Regulation
- Common European Asylum System (CEAS)
The term Dublin Agreement is thus a central organizing element of European asylum law and is subject to continuous development to ensure a fair, efficient, and human rights-compliant allocation of responsibility within the EU asylum system.
Frequently Asked Questions
What legal requirements must be met for an EU Member State to be responsible for an asylum procedure under the Dublin Agreement?
The responsibility for conducting an asylum procedure under the Dublin Agreement is determined by a legally established hierarchy of criteria, which are set out in detail in the so-called Dublin III Regulation (Regulation (EU) No. 604/2013). First, it is verified whether family reasons, in particular the presence of family members with protection status or a pending asylum procedure in another Member State, justify responsibility. It is also relevant whether one of the Member States has granted the asylum seeker a visa or residence permit. Another key criterion is whether the asylum seeker entered the EU via a certain Member State irregularly, i.e., without the required documents, or stayed there. If none of the aforementioned requirements are met, the first Member State in which an asylum application was lodged is generally responsible. The order and precise application of these criteria are regulated in detail by law, and their assessment is always carried out individually, taking into account all relevant circumstances of the specific case.
How is the procedure for the transfer of an asylum seeker under the Dublin Agreement regulated?
The transfer procedure under the Dublin Agreement is bindingly regulated in the Dublin III Regulation and comprises several procedural steps. After determining the responsibility of another Member State, the first receiving state makes what is called a request to take charge or take back to the respective state. Generally, the latter has two months to respond, otherwise consent is deemed to be granted. If the request is approved, the affected asylum seeker is informed by administrative act about the planned transfer. Subsequently, the transfer is carried out within six months. Legal remedies are available against this transfer, especially the right to bring a legal action and obtain effective judicial protection. The suspension of the transfer until final judicial decision can be requested by way of an urgent application. The execution is coordinated between the authorities of both states, whereby mandatory legal deadlines and protection provisions must be observed.
What legal protection mechanisms are available to asylum seekers in the Dublin procedure?
Asylum seekers have extensive legal protection mechanisms available in the Dublin procedure. In particular, they are informed in a language they understand about the intended transfer and the underlying reasons. They have the right to an individual hearing, in which personal reasons against a transfer—such as health issues or family ties—may be presented. Furthermore, they are entitled to free legal aid to exercise the right to appeal/contest and to obtain judicial protection against the transfer decision. Member States must ensure effective legal protection—including compliance with time limits and suspensive effect. Special protection needs, such as those of minors or the mentally ill, must also be taken into account; the law provides for specific examination and protection obligations in these situations.
When does the right to transfer under the Dublin Agreement (transfer deadline) expire?
The transfer deadline under the Dublin III Regulation is generally six months from the acceptance of the request to take charge or take back by the responsible Member State. If the transfer does not take place within this period, responsibility for the asylum procedure transfers to the requesting Member State pursuant to Art. 29 para. 2 Regulation (EU) No. 604/2013. In certain cases, such as the detention of the asylum seeker, the deadline may be extended to up to twelve months. If the asylum seeker has absconded, the deadline is a maximum of 18 months. After these periods expire, the original Member State is no longer entitled or obliged to carry out the transfer, as responsibility permanently transfers to it.
Under what circumstances is a transfer under the Dublin Agreement inadmissible?
A transfer within the Dublin procedure is legally inadmissible if there are serious grounds to believe that the asylum seeker would be subjected to inhuman or degrading treatment (Art. 4 of the EU Charter of Fundamental Rights, Art. 3 ECHR) in the responsible Member State. Such grounds must be substantiated with evidence, such as reports on the reception situation or individual medical assessments. The assessment is carried out under strict criteria by the Court of Justice of the European Union (CJEU) and national higher courts. If a transfer is excluded for these reasons, it must be examined whether another Member State is responsible or whether the asylum procedure must be conducted in the applicant state. In addition, transfers are excluded if humanitarian or family reasons within the scope of the so-called “discretionary clause” apply, which allow a Member State to voluntarily take over the asylum procedure.
What is the impact of the rejection of an asylum application in another Dublin state on the procedure in another Member State?
According to the Dublin Agreement, the asylum application of a protection seeker may generally only be examined once in the Union. If a Member State has already definitively rejected an asylum application, that Member State remains responsible for any subsequent applications, provided that the applicant is in another Member State. If the person submits a new asylum application there, the general rule is that a transfer to the country of the initial rejection takes place—unless there are new, substantial facts (especially new evidence or a significantly changed situation in the country of origin) which may justify a renewed asylum examination. This rule serves to prevent the so-called “asylum shopping” practices and to uphold the principle of a single examination of the need for protection in the EU.
To what extent can a Member State make use of the discretionary clause?
The so-called discretionary clause under Art. 17 para. 1 Dublin III Regulation allows any Member State to actively assume responsibility for an asylum application lodged with it, even if another state is responsible according to the standard criteria. This is done for humanitarian or political reasons, or for family reunification, and can be used in particular to prevent cases of hardship. The discretionary clause is entirely optional and does not require justification; however, after exercising it, the entire asylum procedure must be conducted under national law. The clause is often applied in cases of severe illness or ties to relatives living in the country. The legal consequences and responsibilities are thereby irrevocably transferred to the Member State making use of the discretionary clause.
