Dublin statistics: 2016
The government has refused to provide information to a recent round of Parliamentary Questions relating to 2016 Dublin statistics, stating: “At present, we do not publish data on cases covered by the Dublin Regulation. Eurostat, the EU’s statistics agency, regularly publishes Member State figures.”1
Application of the Dublin criteria
The Home Office has yet to issue guidance on the operation of the Dublin III Regulation, despite a draft being consulted on with key stakeholders in September 2016. Particular concern had been raised because of the lack of information about the ‘family unity’ clauses.2 However, in a reply to a Parliamentary Question on 27 January 2017, the government noted that it is not required to publish eligibility criteria for transfers under the Regulation.3
While it is easy to identify a Eurodac hit at the very early stage of a case (fingerprint match), it is not so easy for the authorities to identify whether family members are present in any Dublin country, and therefore reliance must be placed on the applicant's account. In the experience of lawyers, the authorities are happy to submit a request to a third country to take charge of the claim if the applicant indicates that he or she has family members there. This can happen at any point unless the asylum process has already started, and/or the time limits provided by the Dublin III Regulation have lapsed.
If the applicant wishes to be transferred out of the UK, a referral is made to the TCU and the HO will not normally object. However, if the applicant wishes to have his or her claim substantively considered in the UK, it is the obligation of the applicant or their legal representative to submit documentary evidence such as status papers, passports, asylum interview records etc. of family members, as well as representations explaining why the UK should consider the claim.
DNA tests are not routinely carried out. This would only be necessary if there is no other way to prove relationship. If the applicant fails to declare he/she has family members in the UK at an early stage, normally the HO attempt to proceed with removal. However, a judicial review challenge can be brought if there is a good reason for the lack of disclosure (for example the applicant only found out later the whereabouts of his family).
The majority of requests to third countries are based on Eurodac hits, as these are objective and easy to identify for the authorities. The perception of lawyers is that the Home Office is reluctant to apply other criteria (such as family reunion) however this observation should be balanced with the fact that legal representatives generally see cases where there is a problem. Positive Home Office decisions to take charge of a case are made internally and also occur, including where the applicant has passed through a safe country, and where they have family in the UK. Through freedom of information requests, media outlets have obtained limited information suggesting that over 700 outgoing transfers have been carried out by the UK from 2015 to the first half of 2016, more than 250 of which concerned Italy.4
During 2016 concerted efforts were made in the UK by lawyers and activists to encourage the government to use the family unity clauses, with particular focus on unaccompanied children in Northern France who have family members in the UK. The particular problems and delays for unaccompanied children trying to enter the asylum system in France on order to have their claim transferred to the UK were highlighted in a case in the Upper Tribunal in January 2016.5 Whilst this case was later overturned by the Court of Appeal,6 it resulted in the government making more of a concerted effort to process ‘take charge’ requests relating to this cohort of children more promptly. Several statements were made by the Home Secretary to this effect.7 Immediately prior to the clearance of the Calais camp in October 2016, the process was expedited on a temporary basis.8
The only information made available by the government relating to numbers of persons transferred to the UK in 2016 was a reference to 900 transfers of unaccompanied children to the UK, about 200 of whom however fall under s.67 of the Immigration Act 2016 (“Dubs Amendment”). Over 750 of those were reported to have been transferred from France.9
Most of the media focus on Dublin has related solely to the issue of unaccompanied children.
The discretionary clauses
In a written question to the Secretary of State for the Home Department asking how many times the UK had been asked to use the discretionary powers in Article 17 of the Dublin Regulation and how many of those requests resulted in the UK taking charge of an applicant, the Home Office confirmed that between January 2014 to November 2015, 29 requests under Article 17(1) and 17(2) of the Dublin III Regulation had been made and of those requests 14 were accepted.10 Statistics on the use of the clauses in 2016 in response to a recent Parliamentary Question have been refused.
Lawyers say that the UK rarely applies the discretionary clauses of the Dublin Regulation, and that the only exception which the UK regularly makes to issuing a certificate in Dublin cases is where the applicant has a spouse, parents or children who are refugees in the UK.11 Details of family members are routinely requested during the screening interview, but the applicant is not advised of the possibility of asking for the humanitarian or sovereignty clauses to be invoked. In practice such grounds are more likely to be raised as a challenge to the Dublin decision once it is made.
UK legislation provides for different lists of ‘safe third countries’ to which an asylum seeker can be returned without their asylum claim being considered in the UK. They are called ‘third’ countries because they are not the UK and not the country of origin.
The First List is set out in the statute and consists of EU member states (except Croatia), Iceland, Norway and Switzerland. There is no reference to the Dublin Regulation, but the legislation states that the listed countries are to be treated as places in which a person will not be at risk of persecution contrary to the Refugee Convention, and from which they will not be sent in breach of the Refugee Convention or ECHR.12 In relation to a person who can be removed to one of these countries, the Dublin Regulation is applied.
Whether the person can be removed to one of these countries is determined in the first instance by whether they can be shown to have travelled through that country. Fingerprinting is a routine part of the screening process, carried out in all cases, and fingerprints are sent to the Immigration Fingerprint Bureau (IFB) which automatically runs a fingerprint check on the Eurodac database.13
Where a person refuses to have their fingerprints taken, the Home Office can treat this as a failure to provide information relevant to their case. This can then be treated as relevant to a decision that the person has not made out their asylum claim. However, the asylum seeker must be given an opportunity to provide a reasonable explanation, and failure to provide fingerprints would not be used alone.14 It can also contribute to a decision to detain.15
Where a person’s fingers are damaged so that they are unable to provide good quality fingerprints, policy says that their fingerprints should still be taken.16 During the period of healing the person should be fingerprinted weekly. If they are in detention and after two months, ‘the applicant’s fingers have not recovered… nor has the applicant sought medical intervention for the trauma, they will be asked to sign a consent form to attend the removal centre medical facility and be referred to a consultant dermatologist.’17
Enquiries as to the route of travel are also a routine part of the screening process in all cases. Together with the results of a Eurodac search, the asylum seeker's account of their route of travel will determine whether the application is referred to the Third Country Unit.
Home Office guidance lays down that a response from the Third Country Unit to the Screening Unit should be received in Dublin cases within two days,18 with a decision as to whether the applicant should be detained and whether the Dublin regulation will be applied. In practice Dublin decisions are usually taken quickly, although it may take more than two days. If there is a Eurodac match there will usually be a reference to the Third Country Unit and a Dublin decision.
In practice a Dublin decision (i.e. a decision that the Dublin Regulation applies) normally entails a decision that the asylum claim will not be considered in the UK.
On the Second List, see the section on Admissibility Procedure.
The UK does not formally recognise any requirement to request individual guarantees of adequate reception facilities. The judgment of the High Court in MS  EWHC 1095 (Admin),19 referring to the ECtHR case of Tarakhel, maintains that there is no such general requirement where children are not involved, even where applicants have experienced trauma and have mental health difficulties. This does not mean that guarantees are never sought in individual cases, since officers in UKVI may do so, but it means that the UK does not seek guarantees as a matter of routine practice or policy.
The Court of Appeal judgment on the case, now referred to as NA (Sudan),20 broadly maintained this position. It decided that Tarakhel did not extend to other vulnerable persons and was only ever intended to apply to families with children. And the two appellants in NA (Sudan) were extremely vulnerable, suffering a range of health problems including severe depressive disorder, and the risk of suicide, with one appellant suffering a history of rape and sexual abuse in Italy.
In coming to this conclusion, the Court relied on the decision of several cases decided since Tarakhel involving individuals suffering from serious PTSD, health problems, and the risk of suicide. In some, children were involved, and it decided that general, rather than specific, assurances were sufficient, representing a further rollback of Tarakhel.
In line with the Supreme Court’s ruling in EM (Eritrea),21 the Court of Appeal reaffirmed the fundamental question as being whether, in assessing all the circumstances of an individual’s case, substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to treatment meeting the Article 3 threshold. But the starting point is always going to be the presumption, labelled as a ‘significant evidential presumption’ by the Court, that Member States will comply with their obligations.22 The Court decided in the case of Italy that the presumption was not rebutted, taking the opportunity to remind us all that: “the situation in Italy is in no way comparable to that in Greece and that a general ban on returns to Italy cannot be justified.”23
Once the EU Member State or Schengen Associated State takes or is deemed to take responsibility for examining the asylum application on the basis of the Dublin Regulation, the claim is refused as inadmissible on third country grounds without its substance being considered in the UK. The only challenge is by judicial review. This is on very limited grounds, generally that the Dublin Regulation has not been properly applied because for instance the person has family in the UK, or that human rights will be breached and the humanitarian clause should be applied (see section on Dublin: Appeal).
In general, applicants are detained when the proposed receiving state has accepted, or by default, deemed to have accepted, the UK’s request. Applicants are generally detained until removal, which usually happens under escort.
No personal interview takes place in the Dublin procedure.
Information obtained in the screening interview, particularly about route of travel, is used to make a decision that the case should be referred to the Third Country Unit. The standard information read out from the screening form includes the following:
“It is possible that the United Kingdom may not be the state responsible for considering your asylum application. You will be informed of any application or decision to transfer your case to another country.”
There is no appeal on asylum grounds against a decision that a person may be returned to another country on the First List – i.e. through the Dublin Regulation, and no appeal against a decision in the Dublin procedure may be made on the grounds that the asylum seeker would be sent to another country in breach of their rights under the ECHR or in breach of the Refugee Convention.24 The one ground of appeal available against a Dublin removal (i.e. a removal to a First List country) is that the person's ECHR rights would be breached in the receiving country.25 A human rights appeal of this kind may only be brought in the UK if the Home Office does not certify that the human rights claim is clearly unfounded, but the Home Office is required to certify that it is clearly unfounded unless there is evidence to the contrary.26
In some cases in 2016, courts have also referred to the risk of breach of an individual’s right to asylum under Article 18 of the EU Charter as grounds for suspending a transfer, albeit not demonstrated on the facts in question.27
In cases where an appeal is available, an out of country appeal must be brought within 28 calendar days (where the human rights appeal is certified clearly unfounded); an in-country appeal (where the human rights appeal is not certified) must be brought within 14 days. There are very few appeals of this kind. Normally any challenge to removal based on breach of human rights in the receiving country is made by judicial review application challenging the Secretary of State’s certificate that the human rights claim is unfounded. The result is that the only suspensive appeal against a Dublin removal would be the rare case of a human rights claim which is not certified by the Home Office as clearly unfounded. Otherwise, the decision to remove under the Dublin Regulation can only be challenged by judicial review.
There have been challenges before the courts in relation to conditions of return in Cyprus, Italy, Malta, Hungary and Italy among others.
In relation to France and Sweden, there have been challenges concerning the receiving authority’s approach to the asylum application. In the case of R (AI) v Secretary of State for the Home Department  EWHC 244 (Admin), the High Court held that the challenge to the French fast track procedure and to practice in France towards Darfuri applicants did not displace the presumption that France would abide by its obligations under the Refugee Convention. Similarly in Dudaev v Secretary of State for the Home Department  EWHC 1641, the High Court held that there was insufficient evidence that Sweden would not comply with its obligations under the Refugee Convention, and that the UK law provisions which deem other EU countries safe (see AITOCA Schedule 3 above) were not matters of EU law and could not be argued to be incompatible with it.
On the Second List, see section on Admissibility Procedure.
Before a Dublin certificate is issued, an asylum seeker has the same opportunity as any other asylum seeker to obtain access to free legal representation. They are affected by the limited resources and the lack of incentive for legal representatives to advise before the screening interview (see Regular Procedure: Legal Assistance). Once the Dublin decision is issued they are likely to be detained. If they already have a legal representative that person may continue to represent them. If not, they may, again subject to resources, obtain access to representation in detention (see section on Legal Assistance for Review of Detention). There are no special restrictions on legal aid in Dublin cases (see section on Regular Procedure: Legal Assistance) and judicial review is funded by legal aid, although only if the merits are considered strong, and if the Court grants permission for the case to go ahead.
Greece: Transfers to Greece were generally suspended as a matter of practice following the European Court on Human Rights (ECtHR) judgment in M.S.S. v. Belgium and Greece,28 and in anticipation of the Court of Justice of the European Union (CJEU) decision in NS.29 This was an executive decision applying to all potential transfers to Greece, and is kept under review in conjunction with the European Asylum Support Office (EASO) and UNHCR.30 However, decisions can still be made to return asylum seekers to Greece under the Dublin procedure, even if they are not implemented. There is no automatic legal mechanism to prevent such returns actually being carried out. Challenges must be made in individual cases, and practitioners say that some returns to Greece have been made since the decisions in M.S.S. v. Belgium and Greece.
Hungary: In the case of Ibrahimi and Abasi,31 two Iranians challenged their removal to Hungary on the basis that they were at risk of refoulement, referred to in the case as ‘chain refoulement’ i.e. along a succession of unsafe countries including Serbia, Macedonia, Greece and Turkey. The High Court, in its ruling of 5 August 2016, referred to AIDA and UNHCR reports in its judgment and criticised the UK government for its “broad and sweeping generalisations about presumptions of compliance.”32
Italy: In the NA (Sudan) ruling of 1 November 2016, the Court of Appeal upheld a transfer to Italy on the basis that no risk of treatment contrary to Article 3 ECHR was demonstrated. The High Court has also dismissed appeals challenging transfers to Italy earlier in the year.33
Bulgaria: The High Court found in Khaled (No 1) that the deficiencies of the Bulgarian asylum system were not such as to warrant a suspension of Dublin transfers.34 In its assessment, the Court took into consideration elements such as the fact that UNHCR has not issued any position relating to returns to Bulgaria.35
Cyprus: The recent case of Pour,36 challenging return to Cyprus on the basis of an argument that Cyprus would fail to admit a fresh claim from a refused asylum seeker, was unsuccessful.
Austria: In Abdulkadir and Mohammed, the High Court decided on 28 June 2016 that a transfer to Austria was lawful, on the ground that there was no evidence of ‘systemic failure’ in the Austrian legal system to amount to an Article 3 ECHR violation or infringe upon Article 18 of the EU Charter. The appeal to the Court of Appeal is due to be heard in February 2017, challenging removal to Austria.37 Several cases are stayed behind it.
The UK does not automatically assume responsibility for examining asylum applications where transfers are suspended. If discussions with the receiving country become protracted so that it appears there is no realistic prospect of the transfer taking place, the asylum seeker may be released from detention. Once released from detention in these circumstances, asylum seekers may be granted accommodation and cash support. An asylum seeker who is the subject of a Dublin decision qualifies for reception conditions on the same conditions as those in the regular procedure.38
The main issue for those faced with return under Dublin remains the fact that they are highly likely to be detained and lack effective access to advice.
- 1. See e.g. House of Commons, Asylum: Written questions 59796 to 59799, 12 January 2017, and Reply of 16 January 2017, available at: http://bit.ly/2kmM6dc.
- 2. See Refugee Council, The ‘Dublin’ Regulation and family unity, November 2015, available at: http://bit.ly/2kmUqdi.
- 3. House of Commons, Refugees: Children, Written question 61210 of 23 January 2017, and Reply of 27 January 2017, available at: http://bit.ly/2kNNN4p.
- 4. Maeve McClenaghan, ‘Syrian Asylum-Seekers Are Being Forcibly Removed from the UK to Other EU Countries’, BuzzFeed 16 December 2016, available at: http://bzfd.it/2kfuhdZ.
- 5. R (ZAT) v Secretary of State for the Home Department  UKUT 61 (IAC), Upper Tribunal, 22 January 2016, available at: http://bit.ly/2jq9zLr.
- 6. Secretary of State for the Home Department v ZAT  EWCA Civ 810, Court of Appeal, 2 August 2016, available at: http://bit.ly/2kmEwiw.
- 7. Government, Joint press release by the governments of France and the United Kingdom, 30 August 2016, available at: http://bit.ly/2bxKcEp.
- 8. Government, Home Secretary's statement on the transfer of unaccompanied minors from Calais camp, 24 October 2016, available at: http://bit.ly/2kmugr8.
- 9. House of Commons, Refugees: Children, Written question 61210 of 23 January 2017, and Reply of 27 January 2017, available at: http://bit.ly/2kNNN4p.
- 10. House of Commons, Asylum: EU law, Written question 15249 of 6 November 2015, and Reply of 19 November 2015, available at: http://bit.ly/1LqRM7S.
- 11. Following CJEU, Case C-648/11 R (MA, BT, DA) v Secretary of State for the Home Department, Judgment of 6 June 2013, the UK will not be able to apply the Dublin Regulation to unaccompanied minors.
- 12. Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (AITOCA) Schedule 3 Part 2, First List. http://bit.ly/2jTFL6g.
- 13. Home Office, Asylum Process Guidance, Third Country Cases: Referring and Handling, para 2.2.
- 14. Para 339M, Immigration Rules: HC 395, available at : http://bit.ly/1MOpgjX.
- 15. Enforcement Instructions and Guidance chapter 55 para 55.6.3.
- 16. Home Office, Asylum Instruction: Applicants with Poor Quality Fingerprints para 1.3.
- 17. Ibid, para 8.1.
- 18. Home Office, Asylum Process Guidance, Third Country Cases: Referring and Handling, para 4.2.
- 19. R (NA) v Secretary of State for the Home Department  EWHC 1095 (Admin), High Court, 22 April 2015, available at: http://bit.ly/2jqTmFD.
- 20. NA (Sudan) v Secretary of State for the Home Department  EWCA Civ 1060, Court of Appeal, 1 November 2016, available at: http://bit.ly/2kLNdAY.
- 21. EM (Eritrea) v Secretary of State for the Home Department  UKSC 12, Supreme Court, 19 February 2014, available at: http://bit.ly/1dM83eJ.
- 22. Paras 107 and 156, NA (Sudan) v Secretary of State for the Home Department  EWCA Civ 1060, Court of Appeal, 1 November 2016, available at: http://bit.ly/2kLNdAY.
- 23. Para 110, NA (Sudan) v Secretary of State for the Home Department  EWCA Civ 1060, Court of Appeal, 1 November 2016, available at: http://bit.ly/2kLNdAY.
- 24. Asylum and Immigration (Treatment of Claimants, etc.) Act (AITOCA) 2004 Schedule 3, Part 2, available at: http://bit.ly/1Sat3Lt.
- 25. Para 5, AITOCA 2004 Schedule 3 Part 2, available at: http://bit.ly/1Sat3Lt.
- 26. Para 5, AITOCA 2004 Schedule 3 Part 2, available at: http://bit.ly/1Sat3Lt.
- 27. See e.g. on Austria, Abdulkadir and Mohammed v Secretary of State for the Home Department  EWHC 1504 (Admin), High Court, 28 June 2016, available at: http://bit.ly/2jz6p32; on Malta, R (Hassan) v Secretary of State for the Home Department  UKUT 452 (IAC), Upper Tribunal, 28 September 2016, available at: http://bit.ly/2jqXDsI.
- 28. ECtHR, M.S.S. v Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011.
- 29. The Parliamentary Under-Secretary of State, Home Office House of Lords, 25 Oct 2011: Column WA121, available at: http://bit.ly/1LkBdg0.
- 30. Parliamentary Under Secretary of State for the Home Office, House of Lords, 23 January 2013, col. WA 209, available at: http://bit.ly/1fjjefT.
- 31. Ibrahimi and Abasi v Secretary of State for the Home Department  EWHC 2049 (Admin), High Court, 5 August 2016, available at: http://bit.ly/2bbliWq.
- 32. Ibrahimi and Abasi, para 16.
- 33. R (BG) v Secretary of State for the Home Department  EWHC 786 (Admin), High Court, 12 April 2016, available at: http://bit.ly/1NooJV8; R (Adam) v Secretary of State for the Home Department  EWHC 1352 (Admin), High Court, 9 June 2016, available at: http://bit.ly/2jQTq07.
- 34. Khaled (No 1) v Secretary of State for the Home Department  EWHC 857 (Admin), 18 April 2016, available at: http://bit.ly/2jr7pLv.
- 35. Khaled (No 1), para 94.
- 36. Pour v Secretary of State for the Home Department  EWHC 401 (Admin), High Court, 1 March 2016, available at: http://bit.ly/2jfuZXj.
- 37. See Duncan Lewis Solicitors: http://bit.ly/2jr2Lgx.
- 38. Information from the Asylum Support Appeals Project. See also CJEU, Case 179/11 Cimade & GISTI v Ministre de l’interieur, 27 September 2012.