Dublin

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General

The Dublin procedure is regulated in the International Protection Act. In 2023, Slovenia made 4,776 outgoing requests. During the year 7,261 applications for international protection were lodged meaning that requests were made for 65% of applicants for international protection. This is a high increase in comparison with 2022 when 2,606 requests were made while 6,787 applications were lodged. In 2023, 17 outgoing transfers and 181 incoming transfers were carried out during the year.[1]

Dublin statistics: 1 January – 31 December of 2023

 Source: Migration directorate, March 2024.

“Transfers” refers to the number of transfers actually implemented, not to the number of transfer decisions.

Source: Migration directorate, March 2024.

Source: Migration directorate, March 2024.

Application of the Dublin criteria

In practice, the most frequently used criteria for outgoing Dublin requests are irregular entry,[2] and first country of application.[3] The most frequently used criterion for incoming requests is the first country of application.[4]

In 2023, the most frequently used basis for outgoing requests was Article 18 of the Dublin Regulation, while the majority of incoming requests were based on Article 18(1)(b) of the Regulation. Out of 4,776 outgoing requests made in 2023, 480 were rejected by other Member States. The most common reason for rejecting the outgoing request was that the Members state deemed it was no longer responsible based on the criteria either because the applicant was outside of the territory of Members states for more than 3 months or because the applicant left the country in line with the return decision or expulsion order issued after the rejection or withdrawal of the asylum application. In 2023, Slovenia received 1,753 requests and rejected 713. The most common reason for rejecting the request was that Slovenia deemed it is no longer responsible based on the Dublin criteria.[5]

As seen from the statistics the family unity criteria under Articles 8-11 of the Regulation are really applied in practice. Originals or at least copies of documents showing family links (birth certificates, family books) are required by authorities, while DNA analysis was used for the first time in 2019 because the applicant could not provide a copy of his documents. DNA analysis has not been needed and used since.[6] In practice, the application of the family provisions is not refused, even if the asylum seeker fails to indicate the existence of family members in another Member State from the outset of the asylum application. The asylum seeker can invoke the application of family unity criteria within the timeframe for sending the Dublin request to another Member State, i.e., three months from the asylum application. Due to the high absconding rate and the long duration of the Dublin procedure the procedure is usually stopped before it can be completed and transfer to another Member State implemented.[7] Since 2019 none of the unaccompanied children were reunited under Article 8 with a relative in another Member State through the Dublin procedure. The last case of reuniting family members based on Article 9 and 10 of the Regulation was registered in 2017.[8]

The dependent persons and discretionary clauses

The use of the “sovereignty” clause under Article 17(1) of the Dublin Regulation is not done through a formal procedure and no decision is taken on it; applicants are simply not processed in the Dublin procedure and their case is instead referred by the authorities to the regular procedure.[9] The sovereignty clause was first used in 2014. The sovereignty clause was not used from 2018 up to 2022. In 2023, it was used in 2 cases.[10]

Transfers under the “dependent persons” and “humanitarian” clauses have not been implemented in practice so far.[11]

Procedure

The Dublin procedure is regulated by the provisions of the IPA. After the applicant lodges the application, the case is first examined for a possible application of the Dublin Regulation. While lodging the application the applicant is informed about the use of fingerprints in line with the Eurodac Regulation, possibility of sending the request to another Member state and applying the Dublin procedure. In the event that another EU Member State is determined as responsible in accordance with the Dublin Regulation, the Ministry of the Interior conducts a Dublin interview during which they inform the applicant of the sent request, legal grounds and the evidence used for the request and the reply of the responsible state. After the Dublin interview, the Ministry issues a Dublin decision which, once final, terminates the procedure in Slovenia, and the person is transferred to the state responsible. If the transfer is not carried out, the Migration directorate annuls the Dublin decision and starts processing the application for international protection.[13]

The fingerprints of each applicant are obtained before they apply for international protection. Once the applicant lodges the application their fingerprints are entered into the Eurodac database. If the person refuses to be fingerprinted, the application can be rejected as manifestly unfounded.[14] However, no cases of this happening in practice have been documented.

The information about the Dublin procedure and legal representation during the procedure can also be provided by the PIC.[15]

Individualised guarantees

Individual guarantees are sought together with the “take charge” / “take back” request. Based on the recommendations from the Commission and EUAA, individualised guarantees are sought only in case of transfers to Greece.[16]

Transfers

A pending Dublin procedure constitutes the main Grounds for Detention in Slovenia. The amendments to the IPA, which came into force on 9 November 2021, include new provisions on detention, and the definition of the risk of absconding, which was previously absent.[17] (see Grounds for detention). This enabled the Migration directorate to start detaining asylum seekers in the Dublin procedure again. In 2023 the Migration directorate detained 4 asylum seekers, however only one was detained due to a pending Dublin procedure.[18]

If applicants have their own financial resources, the transfer can be carried out on a voluntary basis. In most cases, however, the transfer is carried out through supervised departure or under escort. Due to the demands of airline companies and the necessity of transferring flights, applicants are escorted by two officials of the Migration directorate, responsible for Dublin procedures, until the handover to the authorities of the responsible Member State. Depending on the requirements of the case, the applicant may also be escorted by other staff – medical staff, in case of medical and other psycho-physical requirements, or the police, if risk of resistance or violent behaviour exists. Past behaviour of the applicants, such as absconding and other obstruction of prior transfer attempts, are considered.[19]

Applicants are issued a laissez-passer document for travel.[20]

In the majority of cases when Dublin decisions are issued and become final, outgoing transfers are nevertheless not carried out, mostly due to the absconding of the applicants. In 2023, all applicants were transferred through supervised departure. Out of 4,776 outgoing requests only 17 transfers were carried out.[21]

In 2023, several protests against Dublin transfers to Croatia were conducted by asylum seekers, NGOs and activists. The protesters noted that due to the lengthiness of the procedure, several asylum seekers in the Dublin procedure were employed and well-integrated by the time the transfer should take place.[22] Asylum seekers also reiterated that Croatia is not safe for them as several of them were victims of police violence.[23] Protests were also organised in January[24] and February 2024.[25] In addition the applicants and the civil society opposed the new practice of the Ministry of the Interior that deemed that the 6 month period for the transfer was reinstated by lodging the judicial review and the requests for an interim measure even if the latter was not granted. The Administrative Court confirmed the interpretation of the Ministry,[26] while the Constitutional Court noted that the 6-month timeframe continues to pass if the interim measure was not granted by the court.[27] (see: Appeal)

Personal interview

According to Article 46(1) IPA, the Migration directorate conducts a Dublin interview before taking a decision on the Dublin procedure. During the interview, the Ministry informs the applicant of the sent request, the evidence used for the request, the legal basis for the request and the reply of the responsible Member state. The Ministry then proceeds to interview the applicant regarding their stay in the responsible Member state and reasons against the Dublin return.

The interview is conducted in the same way as the Regular Procedure: Personal Interview.

The interview can be omitted if the applicant has already submitted the relevant information for determining the responsible country and has been given the opportunity by the authorities to submit all such information.[28]  In an Administrative Court judgment from 2019, the Court ruled that the applicant has the right to a hearing even if Slovenia decides to annul the transfer decision to the responsible state and take responsibility for processing the asylum seeker’s application.[29] In practice, the Ministry issues the annulling decision without the interview.[30]

Appeal

As in the regular procedure, the legal remedy against a Dublin decision is judicial review by the Administrative Court of the Republic of Slovenia.

In line with the amended IPA, the time limit for judicial review was shortened from 8 to 3 calendar days.[31] As per a 2015 Constitutional Court’s decision,[32] preclusive time limits have to be reasonably long or they can disproportionately limit the right to judicial review. The time limit imposed by the amendments infringes the right to effective remedy and the right to judicial review. In practice, refugee counsellors have difficulties lodging the request for judicial review within the time limit, since they have to obtain a power of attorney and the case file beforehand. In addition, refugee counsellors rarely apply for the help of an interpreter while preparing the judicial review due to the time limit.

The application has no automatic suspensive effect.[33] However, at the applicant’s request, the court can postpone the execution of the contested decision until a final decision has been issued, if its execution could cause the applicant to suffer damage which would be difficult to repair.[34] In practice, the determining authority does not enforce the decision before the Administrative Court decides on the request for suspensive effect.[35] As long as such practice remains, the situation is not much different from an automatic suspensive effect being prescribed by law. Since the entry into force of the amendments to the IPA, applicants can lodge an appeal against a decision of the Administrative Court to the Supreme Court.[36] However, if the applicant’s request to postpone the execution of the Dublin decision is not granted by the Administrative Court, the applicant can be transferred before the Supreme Court issues a decision on a potential appeal. In practice the Migration directorate waits for the decision of the Supreme Court for a couple of months- usually two months, and then proceeds with the transfer. In the majority of cases, applicants abscond in order to not be transferred.  In 2023, the Slovenian Ombudsperson issued a position that in all cases the Ministry of the Interior should not transfer asylum seekers before the decision is made by the Administrative Court or, in case of appeal, by the Supreme Court. The Ombudsperson noted that the applicants could also lodge the request for the interim measure before the Supreme Court and that the Ministry should not transfer the person before the decision on the interim measure is made. As the decision on the interim measure is normally issued together with the appeal decision this means that the applicant should not be transferred until the appeal procedure is finished. The Ombudsperson reiterated that although Article 29(3) of the Dublin regulation states that the Member State should accept the applicant back in case the appeal is successful, transferring the applicant before the decision on the appeal renders the remedy as ineffective.[37]

The IPA does not limit the grounds on which an applicant can challenge the Dublin decision and in principle they can challenge it on all grounds of incorrect determination of facts and application of law. This was in contention in case C-490/16 A.S., where the Slovenian Supreme Court made a preliminary reference to the Court of Justice of the European Union (CJEU), asking inter alia whether a judicial review also extends to the application of the irregular entry criterion under Article 13 of the Dublin Regulation. The CJEU judgment confirmed that it does.[38]

In 2023 the Ministry of the Interior took the position that the 6-month period for the transfer is reinstated by lodging the judicial review and the requests for an interim measure even if the latter was not granted. This meant that in practice, just by lodging the judicial review the Dublin procedure of the applicant was prolonged for additional 6 months, not only regarding the possible transfer but also the continuation of the asylum procedure. In cases when the 6-month timeframe would soon be expired applicants had to choose between lodging the judicial review and risking being transferred before the expiration.[39] The new position was challenged before the courts. Administrative Court confirmed the interpretation of the Ministry while[40] the Constitutional Court noted that the 6-month timeframe continues to pass if the interim measure was not granted by the court.[41]

Legal assistance

The law does not contain any special provisions regarding legal representation of asylum seekers during the Dublin procedure. Legal assistance in the Dublin procedure is provided in the same way as in the Regular Procedure: Legal Assistance. In the first instance, legal representation can be provided by the PIC. During the judicial review before the Administrative and Supreme Court, applicants have to be represented by a refugee counsellor. In practice, due to the 3 calendar-day time limit for judicial review, language barriers and other difficulties, applicants often cannot obtain the help of a refugee counsellor in time. Whether the applicant will obtain the help of a refugee counsellor depends heavily on the help of social workers, the PIC and other NGOs. Applicants therefore often abscond without lodging a judicial review request. In any case, the short deadlines prevent refugee counsellors from securing the help of translators, obtaining the relevant documentation, reviewing the case and preparing the judicial review in time.

Suspension of transfers

Dublin transfers to Greece were systematically suspended and have not been implemented since the European Court of Human Rights (ECtHR) judgment in M.S.S. v. Belgium and Greece.[42] However, in 2018, the Dublin Unit started issuing requests to Greece, although no transfers were carried out. In 2023 the Dublin Unit issued 22 “take charge” requests and 165 “take back” requests, which were all rejected by Greece and therefore no transfers were carried out.[43]

The Constitutional Court has clarified that the authorities are obliged to examine all circumstances relevant from the perspective of the principle of non-refoulement. Due to the absolute nature of the protection afforded by the principle of non-refoulement, the assessment must consider all the circumstances of the particular case, including the applicant’s personal situation in the transferring country. In this context, it should also be assessed whether the mere removal of an individual to another country in view of their health status is contrary to the principle of non-refoulement.[44]

In cases where transfers are suspended, Slovenia annuls the Dublin decision and assumes responsibility for the application.

The situation of Dublin returnees

There are no obstacles for asylum seekers transferred from another Member State with regard to access to the asylum procedure. As confirmed by the Constitutional Court, Dublin returnees are considered asylum applicants from the moment of their return to Slovenia.[45]

Applicants who abscond from Slovenia while their asylum procedure is still pending at first instance and are returned through a Dublin transfer are allowed to lodge a new asylum application that is not considered a subsequent application. On the other hand, if an applicant absconds upon receiving a rejection decision, it becomes final after the 15-day deadline for lodging a legal remedy, or 3-day deadline in the case of an accelerated procedure. In such cases, if the applicant is returned, the only option to access the asylum procedure is to lodge a subsequent application. The same goes if the rejection decision is issued in the applicant’s absence upon absconding.[46] If the applicant absconds after filing for judicial review, the court stops the procedure due to lack of legal interest, the rejection decision becomes final and, if returned, the applicant is again only left with a subsequent application procedure.

Similarly to other asylum seekers, Dublin returnees have to wait from 3-20 days to lodge the application due to the backlog of applications. Once their application is lodged, they have the same rights as other asylum seekers and are accommodated in the Asylum home or its branch.

[1] Official statistics provided by the Migration directorate, March 2024.

[2] Article 13(1) Dublin III Regulation.

[3] Article 3(2) Dublin III Regulation.

[4] Ibid.

[5] Official statistics provided by the Migration directorate, March 2024.

[6] Ibid.

[7] Observation by the PIC.

[8] Ibid.

[9] Observation by the PIC.

[10] Official statistics provided by the Migration directorate, March 2024.

[11] Official statistics provided by the Migration directorate, March 2024.

[12] Ibid.

[13] Article 51(2) IPA.

[14] Article 52, eighth indent IPA.

[15] PIC – Legal Center for the Protection of Human Rights and the Environment, available at: https://pic.si/.

[16] Official statistics provided by the Migration directorate, March 2023.

[17] See also AIDA, Country Report: Slovenia: 2021 Update, May 2022, available at: https://bit.ly/3kCs3cg.

[18] Official statistics provided by the Migration directorate, March 2024.

[19] Information provided by the Migration directorate.

[20] Information provided by the Migration directorate.

[21] Official statistics provided by the Migration directorate, March 2024.

[22] Delo: Deportacija prosilcev za azil na Hrvaško začasno preprečena, 19 May 2023, available in Slovenian, at: https://bit.ly/48uBRaZ.  

[23] Dnevnik: Nevladniki z vnovičnim apelom vladi za ustavitev vračanj prosilcev za azil, 7 June 2023, available in Slovenian at: https://bit.ly/3uRiQBW.

[24] Delo: Zaposlene prosilce za azil izganjajo na Hrvaško, 11 January 2024. available in Slovenian at: https://bit.ly/3TjvOly.

[25] Delo: Lani obnavljali Slovenijo, letos jih deportirajo na Hrvaško, 15 February 2024, available in Slovenian at:  https://bit.ly/3IfMDXV.

[26] Administrative Court Decision, I U 891/2923, 10 November 2023.

[27] Constitutional Court Decision, Up-689/2023, 14 July 2023, available in Slovenian at: https://bit.ly/4apfAgO.

[28] Article 38(1) IPA.

[29] Administrative Court Judgment, I U 1174/2019/11, 25 July 2019, available in Slovenian at: https://bit.ly/3s7msym.

[30] Observation by the PIC.

[31] Article 70(2) IPA.

[32] Constitutional Court decision, I U 203/14, 3 December 2015, available in Slovenian at: https://bit.ly/3Pv0UCF.

[33] Article 70(3) IPA.

[34] Article 32(2) Administrative Dispute Act.

[35] Observation by the PIC.

[36] Article 70(4) IPA.

[37] Slovenian Ombusdperson, Ministrstvo naj s predajo prosilcev za mednarodno zaščito počaka do pravnomočne odločitve o začasni odredbi, 18 5 2023, available at: https://bit.ly/3vG0dRM.

[38] CJEU, Case C-490/16, A.S. v Republic of Slovenia, Judgment of 26 July 2017, available at: http://bit.ly/3KPHQiu.

[39] Observation by the PIC.

[40] Administrative Court Decision, I U 891/2923, 10 November 2023.

[41] Constitutional Court Decision, Up-689/2023, 14 July 2023, available at: https://bit.ly/4apfAgO.

[42] ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011, available at: http://bit.ly/3YdcC85. 

[43] Official statistics provided by the Migration directorate, March 2024.

[44] Constitutional Court, Decision Up-613/16, 28 September 2016, available at: http://bit.ly/2F04oba. 

[45] Constitutional Court, Decision Up-21/11, 10 October 2012, available in Slovenian at: http://bit.ly/2HisQFR.

[46] This is possible under Article 49(7) IPA if a personal interview has already been carried out and the asylum authority has sufficient information to issue a decision.