Dublin

Author

Greek Council for Refugees Visit Website

General

Data regarding the Dublin procedure throughout 2021 were not available at the time of publication of the report.

As the previous years, take charge requests addressed to EU member states within 2021 are handled based on the particularities established by the requested member states. More specifically, all outgoing requests are being made within the three-month deadline provided in the Regulation EU 604/2003, which starts counting from the moment an application for international protection is officially registered before the Asylum Service.

However, the German Authorities continue to implement the Mengesteab ruling of CJEU. Consequently, the German Dublin Unit counts the above-mentioned deadline from the moment the applicant expressed her/ his wish to seek international protection before the Police Authorities of the requesting Member State, meaning prior to the official registration of the request for international protection before the Asylum Service. In order to avoid receiving rejection letters based on this argument, the Greek Dublin Unit is trying to address the relevant take charge requests within the three-month time limit as of the time the wish to apply for international protection is expressed. For cases of family reunification requests that the Dublin Unit of Greece was informed three months after the person expressed her/his wish to seek international protection, but within three months from the registration of her/his claim, the Unit continues to proceed with the take charge request to the German Authorities under the non-discretionary Articles (8, 9, 10), considering the request to be addressed within the time limit set in the Regulation.

Another reason for rejecting a case is the interpretation of the CJEU judgment in Joined Cases C‑47/17 and C‑48/17by the Dublin Units of some Member States.^[1]  According to GCR’s knowledge, the German Authorities continued to implement this judgment during 2021, by accepting only one re-examination request for each case. In practice, it has been observed that many re-examination requests addressed to the German Dublin Unit remain unanswered for a long period of time, which exceeds the two-week time limit mentioned in the CJEU judgment. The final response usually comes only after reminders are sent by the Greek Authorities. France also follows the same practice and rejects cases on this ground. In general, an extension of the deadline is requested if a DNA procedure is still pending and will not be completed within the two-week timeframe. This request is accepted by almost all Member States, apart from Germany, which might reject a re-examination request on the basis that the results proving the family link were not submitted in due time.

Regarding the cases for which no final answer on re-examination requests has being received, the Greek Dublin Unit tries to address reminders to the requested states, in order for an official response to be sent. However, if the cases remain pending for a considerable period of time, the Dublin Department of Greece acts internally by referring them to the regular procedure^[2]. Re-examination requests addressed to the French authorities present a certain particularity, as it has been noticed that some remain unanswered for months, or even for years. Based on GCR’s knowledge, no response has been received for some re-examination requests made in 2017, despite the efforts made by both the Greek Authorities and NGO’s working on field to highlight the need for an answer to be provided. No general practice is followed on those cases, which end up examined on an ad hoc basis.

During 2021, the COVID-19 pandemic affected Dublin transfers (including those based on the family unity criteria) to a lesser extent compared to the previous year. Nevertheless, a limited access to regional Asylum Offices across the country was maintained in order to minimise the spread of the pandemic and physical presence was allowed only after an online appointment was booked. Most of the administrative procedures could be completed through an online platform, launched by the Ministry of Migration and Asylum. Applications such as the submission of documents relevant to an individual’s case and updating contact details, could also be completed only online. While this procedure aims to minimize the ‘distance’ between the applicants and the access to their case^[3], in practice it has become almost impossible for people who lack the necessary language and technical skills to use these tools, in particular for those deprived access to basic necessities and assistance.

As opposed to 2020, the submission of family reunification requests under the Dublin III Regulation was not ceased. However, GCR is aware of cases for which the registration of asylum applications, and subsequently the submission of reunification requests, were delayed due to backlog of cases accumulated in previous years.

The application of the Dublin criteria

Family unity

In order for a “take charge” request to be addressed to the Member State where a family member or relative resides, the written consent of this relative is required, as well as documents proving her/his legal status in the receiving country (e.g. residence permit, asylum seeker’s card or other documents certifying the submission of an asylum application) and documentation bringing evidence of the family link (e.g. certificate of marriage, civil status, passport, ID). For cases of unaccompanied minors, the written consent of her or his guardian is required. Based on GCR’s experience, an outgoing request will not be sent until the written consent of the relative and the documents proving the legal status in the other Member State have been submitted to the Greek Dublin Unit.

On the contrary, the non-existence of documents proving the family relationship between the applicant and the family member or relative with whom she/he wishes to be reunited, is not a sufficient reason for the request not to be sent. In such cases, the availability of circumstantial evidence is assessed (e.g. photographs of the applicant and the sponsor, statement of the sponsor describing her/his relationship with the applicant, transcript of the sponsor’s interview before the authorities of the requested Member State, in which the details of the applicant are mentioned). These cases, though, have little chances to be accepted.^[4]

Apart from the general criteria applied to every case falling under the Dublin III Regulation, particularities have been observed on the way the family unity criteria are applied depending on the Member State to which a take charge request is sent. Germany still refuses to undertake responsibility for applicants who cannot prove their relationship with the person they wish to be reunited with, while other states are taking into consideration any circumstantial evidence and might proceed with the conduction of interviews with the family members/ relatives.

Furthermore, according to GCR’s experience, only documents in English or the official language of the requested member state seem to be taken into account by the Dublin Units of other Member States, thus making it more difficult for the applicants to provide those. Germany, the Netherlands, Spain and Italy are among the EU countries which request for the documents submitted to be translated in English. According to the information received by the Greek Dublin Unit, Afghan identification documents and documents provided by other nationals, such as Somali nationals, are not considered by Germany’s BAMF as enough evidence to prove the family link, given that they could be easily forged. Despite the submission of the above-mentioned documents and circumstantial evidence, the German Authorities tend to reject more and more cases due to lack of DNA test results. Spain and Irish authorities though have taken it a step further, by rejecting every take charge request in which a DNA test result proving the relationship between the persons concerned is not available, regardless of the submission of identification documents. Therefore, the DNA procedure seems to be the only way for a family link to be considered as established by the particular Dublin Units. Other Member States, such as Sweden and the Netherlands, are requesting for DNA results proving the kinship, especially in cases of relatives for which articles other than 9 and 10 are applied However, this is not the common practice of other Member States, which consider the conduction of the DNA test to be the last resort.

Subsequent separation of family members which entered the Greek territory together and applied for international protection before the competent authorities, was the subject of the Asylum Service’s circular 1/2020 which continued to be implemented throughout 2021. According to this circular, requests aiming to reunite family members or / and relatives who were subsequently separated will not be sent, and the case will be examined through the regular procedure. The same principle will apply for those cases in which a minor child was subsequently separated from its family, and travelled to another member state. The only exception is when another Member State specifically asks for a take charge request to be issued.

In any case, an assessment of the particularities of each case always precedes the referral to the regular procedure. Based on GCR’s experience, such requests have been accepted by the authorities in Sweden, Switzerland and Luxembourg. In the case of a subsequent separation of family members handled by GCR in 2021, Sweden accepted the take charge request of a mother to be reunited with her minor child sent by the Greek Dublin Unit. In this particular case, the applicant and her minor arrived together in Greece and were registered by the Police Authorities, but they had not applied for international protection when their separation took place. Thus, the minor’s asylum request was never registered by the Greek Asylum Service. As soon as the mother applied for asylum, she informed the authorities of the requesting member state of her wish to be reunited with her child who, at that moment, resided in Sweden.

On the contrary, German authorities have adopted a different approach on cases of subsequent separation.  They continue to reject these requests, arguing that the family was together at the time the application for international protection was lodged (Article 7 par. 2 of the Regulation EU 604/2013) and that the humanitarian grounds of Article 17 (2) do not apply. They also sometimes argue that further consideration of such cases would undermine the meaning of the Dublin III Regulation, which is allegedly to ‘prevent secondary movement’. As a result, the Greek Dublin Unit does not address take charge requests to Germany based on these criteria, unless there is enough evidence available to support such a case.

It is also difficult to establish a family relationship in cases of marriages by proxy, as they may not be recognised by the receiving state’s domestic law. GCR is aware of at least one case of family reunification that was rejected by the German Authorities, because the applicant’s spouse was already present in the requested member state’s territory when the marriage ceremony took place.

Unaccompanied children

Family reunification requests of unaccompanied minors with family members or/ and relatives present in another EU country have been affected by the delay of the implementation of the guardianship system in Greece. According to the legal framework, the Public Prosecutor is the temporary guardian of all the unaccompanied minors residing in the Greek territory.^[5] The Special Secretariat for the Protection of the Unaccompanied Minors (SSPUAM) of the Ministry of Migration & Asylum, in collaboration with the National Centre for Social Solidarity (NCSS -ΕΚΚΑ), bears the responsibility to proceed to any necessary action aiming to the appointment of guardian to unaccompanied children^[6]. Although the establishment of the Supervisory Board for the Guardianship of Unaccompanied Minors was to be established and be entered into force by March of 2020, the procedure has still not been completed by the end of 2021. Temporary guardians had been appointed at the end of 2020 only for cases of unaccompanied minors who were eligible for the relocation scheme. Those guardians were authorized only to proceed with the necessary arrangements of the BIA and the security interviews Their role was expanded in 2021, allowing them to follow up with the minors’ applications of international protection and have a better overview of their wellbeing. However, the above network of guardians run by the NGO METAdrasi stopped operating on 23 August 2021, creating a gap in the continuation of the representation before the competent authorities of certain unaccompanied minors.^[7]

The Best Interest Assessment tool, which was drafted and launched by the Greek Dublin Unit based on previous correspondence with other EU countries, UNHCR, UNICEF and EASO and was enhanced after the provision of inputs by international and local organizations and NGOs, is an indispensable element of take-charge requests of unaccompanied minors. This tool is aiming to facilitate the family reunification requests under the Dublin Regulation (EU) 604/2013 by gathering all necessary information required by Member-States when assessing family reunification cases of UAM’s.^[8] In case the assessment cannot be included in the outgoing request, it is forwarded afterwards as a supplementary document.

However, the submission of the best interest assessment does not necessarily lead to the acceptance of a take charge request, since other elements are also taken into consideration by the requested Member States, regardless of the fact that no such requirement is provided in Article 8 of the Regulation EU 604/2013. These elements are considered evidence of the relative’s ability (or inability) to support the minor applicant. GCR is aware of cases in which house contracts, photos of the place where the minor will be accommodated in the relative’s house and proof of income have been requested in order to prove the family member’s or/ and relative’s ability to take care of the applicant. French authorities have rejected at least one case in 2021 based on the fact that the unaccompanied minor’s relative was not able to support him, based on the financial evidence submitted. A re-examination request was made, arguing that the Regulation is not specifying that the ability of the relative to support the applicant must be purely economic. The general description provided in the Regulation indicates that psychological support also needs to be taken into account, when examining reunification cases of unaccompanied minors. However, the particular case was still pending by the time of writing of this report.

Other countries have appointed social workers in order to contact the sponsor and the child with the aim to assess whether it would be in the child’s best interest to be reunited with her/his family member/ relative. The appointed social worker was allowed to contact the minor residing in Greece and conduct an interview with her/him in order to reach to a conclusion regarding the case. This practice was followed by the UK authorities, while the Italian ones used to call the minor’s relative to the closest to her/his place of residence police station in order to interview her/him about his relationship with the applicant.

Another factor that is being taken into account while assessing the best interest of the minor, is the existence of a family member/ relative in the requesting Member State. Although the mere existence of this person does not change the legal status of the minor applicant as unaccompanied, some member states misinterpret the ‘best interest of the minor’ by considering him accompanied by her/his distant relative. Based on that argument, they reject family reunification requests of unaccompanied minors and therefore, prevent the child from being reunited with a closer family member. According to GCR’s knowledge, a case of three minors, who had expressed their will to be reunited with one of their parents in Austria was rejected on that ground in 2021. One of the reasons provided for not accepting the request was that the applicants were not alone in Greece, but were accompanied by a close relative.

Although the best interest of the minor should be of primary consideration when examining a family reunification request, it does not go without saying that the requested Member States proceed with the assessment of the case under the Dublin III Regulation in all take charge requests that are addressed to them. Spain, for instance, does not proceed at all with the examination of requests of unaccompanied minors that are based on Articles other than Article 8 of the Regulation. In one of the cases handled by GCR, the Spanish Unit stated that all requests concerning minors are to be examined under the criterion of article 8; while Article 17(2) was not applicable in this particular case as this is not considered to be a discretionary case by the Spanish authorities. Thus, the case was finally rejected in 2021, without due consideration of the Best Interest Assessment Form that had been prepared and no explanation for the rejection, as required under Article 17 (2) of the Regulation EU 604/2013. GCR is also aware of a case in 2021 in which German authorities have rejected an unaccompanied minor who wished to be reunited with his uncle, who holds the German citizenship. As it is stated in the rejection letter, the Dublin III Regulation is not applicable in such cases according to the Germany Dublin Unit. Yet, this reasoning is contradictory to Article 8 of the Regulation, which requires for the family member or/ and relative to be legally present. In the above-mentioned case, the best interest of the minor and the documents submitted to support the case were not taken into consideration, and the re-examination requests were rejected on the same ground.

Where applicants are not able to provide the Authorities with identification documents, the only remaining solution is to resort to DNA tests to prove the family relationship. Some countries even require a DNA tests as a rule to be able to assess family links. In 2021, Spain decided that the relationship between a minor applicant in Greece, who wishes to be reunited with her/his relative in the requested member state, can only be established through a DNA or blood test.^[9] The reason for this positioning is that the Spanish Authorities have faced some issues in relation to take charge requests of unaccompanied minors with their relatives, in which reasonable doubts were raised regarding the authenticity of the documents that were meant to prove the alleged relationship.

Age assessments is another matter that might affect the outcome and the processing time of a reunification request. EU countries, such as Austria and Scandinavian countries, were questioning the age assessment results and tended to reject outgoing requests made by Greece based on previous experience, because the assessment procedure was not conducted according to the methods followed by the receiving member state.^[10] The Netherlands have also questioned at least one registration of an applicant as an unaccompanied minor, according to information received by GCR.

The dependent persons and discretionary clauses

Outgoing requests are sent under the humanitarian clause, either when Articles 8-11 and 16 are not applicable, or in cases for which the take charge request has been sent after the three-month time-frame, regardless of the reason. As mentioned above, Article 17(2) is widely used for cases of subsequent separation.

As mentioned below in Transfers, Article 17(2) was broadly used by the Greek Dublin Unit in the beginning of 2021 for cases in which the deadline for transfer was not met. This extension of the procedure was either related to COVID-19 restrictive measures or to the delay in signing memorandum of cooperation between the Greek Dublin Unit and the responsible travel agency.

 The Relocation Scheme

In March 2020, the Commission launched a relocation scheme, under which vulnerable people from Greece would be transferred to other EU Member States, aiming to support Greece in its efforts to cope with the critical situation. Unaccompanied children and children with severe medical conditions who were accompanied by their families, were the two categories of persons of concern who could be included in the program^[11], as long as they have arrived in Greece before 1 March 2020 and no possibility to be reunited with a family member in another Member State was available. Sixteen EU countries participated in this scheme, among which France, Germany, Luxembourg, Portugal and Bulgaria. The Commission implemented this program with the assistance of UNHCR, the International Organization for Migration (IOM) and UNICEF, following the eligibility criteria as set in the relevant SOPs. Homeless children, children living in precarious conditions, such as safe zone areas in camps and minors being previously detained, are considered eligible for the program.

The process concerning the relocation of UAM consisted of three phases^[12]:

• Phase 1: the preparatory phase, in which a list of identified unaccompanied minors was drafted and shared by the Special Secretary of Unaccompanied Minors with the Greek Asylum Service and then with EASO.
• Phase 2: a Best Interest Assessment interview is taking place, during which the eligibility of each minor was assessed. The procedure was led by EASO with the support of UNCHR and the child protection partners. After the completion of the interview, the assessment and any other supportive documentation were submitted to the Greek Authorities and the receiving countries.
• Phase 3 and last phase: the transfer of the person to the Member State which accepted the responsibility for her/him. Prior to this final step, some countries, such as France, used to hold another interview before the Consulate or Embassy of their country in Greece. This interview is called ‘security interview’. Prior to the transfer, the selected minor was accommodated to transitional facilities run by IOM, in order for the necessary administrative procedures and medical examinations take place.

A minor’s case was not finally excluded from the relocation programme, should the case not be accepted by a Member State. On the contrary, the applicant was internally proposed to another state for relocating. A person was only excluded if she/he refused in written to be transferred to the Member State which accepted the responsibility for her/his case. This refusal of hers/his was considered as evidence that the person does not wish to be included in the programme any more.

Although the eligibility criteria might differ based on the Member State, some criteria seemed to be unnegotiable. An applicant could not be included to the program in case a family reunification request under the Dublin III Regulation was pending, or a decision on first instance regarding the application for international protection had already been issued by the Greek authorities.  Furthermore, in case an applicant had been accused or convicted of committing a crime, regardless the severity of it, would be considered ineligible. Criteria based on ethnicity, nationality, sex and age were not set.

By the end of 2021, 4,770 individuals (including 1,199 unaccompanied children) had been relocated to other EU Member States under the voluntary relocation scheme launched by the EU Commission. At the moment, the program is closed and there is no provision for it to be restarted, at least any time soon.^[13]

The total number of transfers of UAMs per country throughout 2021 and the total number of transfers that took place from the beginning until the end of the relocation program is as follows:

 Source: Information provided by the SSPUAM in March 2022.

Procedure

The Dublin procedure is handled by the Dublin Unit of the Asylum Service in Athens. Regional Asylum Offices are competent for registering applications and thus potential Dublin cases, as well as for notifying applicants of decisions after the determination of the responsible Member State has been carried out. Regional Asylum Offices are also competent for receiving pending cases’ documents and uploading them to an online system of the Asylum Service where the Dublin Unit has access to.

As already mentioned in the sections on Determining authority and Regular Procedure, EASO (now EUAA) also assists the authorities in the Dublin procedure. According to the 2021 Operational and Technical Assistance Plan agreed by EASO and Greece^[14], EASO provides support to the Asylum Service for processing applications for international protection at first instance in mainland and in the islands, so as to improve, among others, the timely identification of Dublin cases and the quality of the files submitted to the Dublin Unit. Specifically, EASO provides support to the Dublin Unit in order to process outgoing and information requests according to the Dublin Regulation criteria, enhance the transfer processing capacity and assist the Dublin Department with interpreters for information provision and other activities Unit (face to face and remote).

As previously mentioned, most administrative procedures, such as the submission of documentation, booking of appointments, receiving copies of an applicant’s file, are conducted only through online applications. As a result, physical presence in the context of Dublin procedures is only required at registration stage, during which the asylum seeker is being fingerprinted, and has to sign the relevant written consent. For other actions, an online appointment should be booked prior to the applicant’s visit to the competent Asylum Office.

Applications for international protection cannot be lodged if the person refuses to be fingerprinted. In case of refusal, the person will remain undocumented. The fingerprints are crosschecked in the police’s database for possible Eurodac hits. It is not a common practice for those who refuse to be fingerprinted to be automatically transferred to the police station and be administratively detained. GCR is not aware of any person who refused to be fingerprinted.

Where an asylum application has been lodged in Greece and the authorities consider that another Member State is responsible for examining the application, Greece must issue a request for that Member State to take charge of the applicant no later than three months after the lodging of the application, in accordance with Article 21 of the Dublin III Regulation. However, as previously noted, following a change of practice on the part of the German Dublin Unit following the CJEU’s ruling in Mengesteab, the Greek Dublin Unit strives to send “take charge” requests within three months of the expression of the will to seek international protection, rather than of the lodging of the claim by the Asylum Service, although Greece considers the actual lodging of the application and not the expression of a will to seek asylum as the starting point of this three-month deadline.

The applicant is not officially informed by the Greek Dublin Unit neither of the fact that her/his request has been made, nor on the basis of what evidence. It is the asylum seeker’s solicitor who is following up the procedure and provides feedback on the steps that have been made. Dublin Unit officers contact the applicant directly only if the case has been rejected, in order to request for supplementary documentation, which will be included in the re-examination request. In case of final rejection, no written information is provided to the applicant. In practice, the case is internally referred to the regular procedure. On the contrary, if the reunification request is accepted, an admissibility decision mentioning that the requested Member State is responsible to examine the asylum application, based on the provisions of the Regulation (EU) 604/2013 is delivered to the applicant.

Given the severe restrictions posed by other Member States on family reunification, as they were described in The application of the Dublin criteria the Unit consistently prepares for a rejection, and anticipates re-examination requests.^[15]

A change in statistical practices of the Dublin Unit was noted since 2020, as the publication of monthly statistics of the Unit stopped in March 2020 for it to be substituted by Monthly Reports issued by the Ministry of Migration and Asylum.^[16] These Reports include some but not all of the data previously provided by the monthly statistics of the Greek Dublin Unit.

Individualised guarantees

The Greek Dublin Unit requests individual guarantees on the reception conditions of the applicant and the asylum procedure to be followed. In any event, in family reunification cases, the applicant is willing to be transferred there and additionally he or she relinquishes his or her right to appeal against the decision rejecting the asylum application as inadmissible

For children’s Best Interest Assessment, see above, in the section on application of the Dublin criteria.

Personal interview

Under the Dublin procedure, a personal interview is not always required.^[17]

In practice, detailed personal Dublin interviews on the merits do not usually take place, when outgoing requests are pending for the transfer of asylum seekers under the family reunification procedure, although questions mostly relating to the Dublin procedure are almost always addressed to the applicant in an interview framework. The applicant identifies the family member with whom he or she desires to reunite and provides all the relevant contact details and documentation.

Questions relating to the Dublin procedure (e.g. on the presence of other family members in other Member States) are always addressed to the applicant during the Regular Procedure examining his or her asylum claim. According to GCR’s experience, applicants who at this later stage, well after the three-month deadline, express their will to be reunited with a close family member in another EU Member State, are given the chance to apply for family reunification.  In several cases handled by GCR, the Dublin Unit strives to send the outgoing request as soon as possible, after the written consent and all necessary documents have been submitted.

Interviews in non-family reunification cases tend to be more detailed when it is ascertained that an asylum seeker, after being fingerprinted, has already applied for asylum in another EU Member State before Greece.

Transfers 

Transfers under the Dublin III Regulation are carried out by the Asylum Service, with the assistance of EASO personnel. The Transfer Department of the Dublin Unit follows the transfer procedure. Under this scope, the department is coordinating with the responsible travel agency in order for the tickets to be booked and be sent to the applicants or/ and their solicitors in due time. Before the transfer takes place, the Dublin Unit submits medical documents to the airline company, as well as the requested Member State. On the day of transfer, an employee from the Department of Foreign Affairs meets the applicants at the airport in order to provide them with a laissez-passer, help them with the check-in and boarding. The above-mentioned information regarding the transfer are forwarded to the asylum seekers by the Greek Dublin Unit, along with the tickets.

During 2021, transfers under Dublin were once more subject to member states’ measures for the prevention of Covid-19 spreading and the relevant air travel restrictions, factors that led to delays in concluding some of them in due time.

More specifically, diminished availability of flights and destinations led to a series of problems in handling Dublin transfers. A maximum number of applicants transferred per flight or per week was imposed in the first months of 2021. This number could not meet the pending cases. Thus, many asylum seekers were not transferred within the time limit set in the Regulation.

Additionally, all MS requested the applicants to provide the airline company and the requested member state with one of the following documents: either a COVID-19 vaccination certificate showing that they were fully vaccinated at least 14 days before arrival, or a negative COVID -19 PCR test taken 72 hours before arrival time, or a negative COVID -19 rapid – antigen test taken 48 hours before arrival time, or a COVID-19 recovery Certificate. The documents requested varied depending on the travel guidance of each Member State. In case of indirect flights and layovers, the passengers were responsible for complying with the guidance of the transit countries as well. In any case, the cost for the PCR or/ and Rapid Antigen tests had to be covered by the applicants themselves.

Dublin transferees were further requested to fill in a Passenger Locator Form (PLF), which was forwarded to them by the Transfer Department of the Greek Dublin Unit – although there were exceptions, such as in the UK though which did not ask for the submission of the PLF on a regular basis.

Apart from the above-mentioned reasons that resulted in transfers realized out of time limits, another factor that significantly affected the procedure the first couple of months in 2021 was the delay in the signing of memorandum of cooperation between the Greek Asylum Service and the travel agency, which would be responsible to book the applicants’ tickets. Consequently, deadlines were not met in many cases, for which the Dublin Unit either proceeded to the transfer without taking any other measure, or had to resend an outgoing item under Article 17.2.

Travel costs for transfers were covered by the Asylum Service in 2021, as they were in 2020.

A total of 2,133 transfers were completed in 2021, compared to 1,923 transfers in 2020:

Source: Hellenic Republic, Ministry of Migration and Asylum, Statistics available at: https://bit.ly/3uyzcLG.

The table above demonstrates the low number of transfers being carried out during the first quarter of 2021, which increased again as of April 2021.

Incoming Dublin requests and transfers

Contrary to the “take charge requests” that are issued based on one of Dublin Regulation criteria, “take back requests” are issued for applicants who already have an ongoing, abandoned or rejected asylum application in a MS.^[18]

Appeal

According to the IPA, applications for international protection are declared inadmissible where the Dublin Regulation applies.^[19] An applicant can lodge an appeal against a first instance decision rejecting an application as inadmissible due to the application of the Dublin Regulation within 15 days.^[20] Such an appeal can also be directed against the transfer decision, which is incorporated in the inadmissibility decision.^[21]

Contrary to other appeals against inadmissibility decisions, the appeal will have automatic suspensive effect.^[22] Appeals against Dublin decisions will be examined by the Appeals Committees in single-judge format.^[23]

The situation of Dublin returnees

Transfers of asylum seekers from another Member State to Greece under the Dublin Regulation had been suspended since 2011, following the M.S.S. v. Belgium & Greece ruling of the ECtHR and the Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department ruling of the CJEU.^[24] Following three Recommendations issued to Greece in the course of 2016,^[25] and despite the fact that the Greek asylum and reception system remained under significant pressure, inter alia due to the closure of the so-called Balkan corridor and the launch of the EU-Turkey Statement, the European Commission issued a Fourth Recommendation on 8 December 2016 in favour of the resumption of Dublin returns to Greece, starting from 15 March 2017, without retroactive effect and only regarding asylum applicants who have entered Greece from 15 March 2017 onwards or for whom Greece is responsible from 15 March 2017 onwards under other Dublin criteria.^[26] Persons belonging to vulnerable groups such as unaccompanied children are to be excluded from Dublin transfers, according to the Recommendation.^[27]

The National Commission for Human Rights in a Statement of 19 December 2016, expressed its “grave concern” with regard to the Commission Recommendation and noted that “it should be recalled that all refugee reception and protection mechanisms in Greece are undergoing tremendous pressure… the GNCHR reiterates its established positions, insisting that the only possible and effective solution is the immediate modification of the EU migration policy and in particular of the Dublin system, which was proven to be inconsistent with the current needs and incompatible with the effective protection of human rights as well as the principles of solidarity and burden-sharing among the EU Member-States.”^[28]

An interesting court case was issued in Germany in January 2021 and sets the protection threshold to a level that corresponds to the actual situation in Greece.^[29] According to this decision, returns to Greece are expected to put migrants at serious risk of degrading treatment due to inadequate living conditions for beneficiaries of international protection. The court also noted that the COVID-19 situation and restrictions pose additional hardship for refugees, specifically to access the labour market.^[30] This judgment seems to be in line with the case law of both the ECtHR and the CJEU that confirms that it is not necessary to show ‘systemic deficiencies’ for a transfer to be unlawful and that any source of risk is reason enough.^[31]

Dublin returnees face serious difficulties both in re-accessing the asylum procedure and reception conditions (which is quasi inexistent) upon return.^[32] In fact, returnees face the risk being subject to onward refoulement to Turkey, following the designation of Turkey as a safe third country in 2021 (see Safe third country concept).

In another case, a beneficiary of international protection was returned from Germany to Greece at the beginning of July 2021. The asylum application which the beneficiary submitted before the German Authorities was rejected as inadmissible, since his case had already been examined by the Greek Asylum Service, which recognized he is a refugee, despite the fact that the person was never informed about that. Although, the Court accepted that living conditions for beneficiaries of international protection in Greece are “undoubtedly harsh” taking also into account that beneficiaries are not entitled to accommodation as provided in the case of asylum seekers, however, it assumed that healthy, single and young individuals would nevertheless somehow be able to survive under these conditions. Upon his return, the beneficiary was handed to the Airport Police Department and was provided with a 10-day duration police note. According to this note, he should visit the Asylum Service to proceed with his case. Eight months after his arrival in Greece, no residence permit has been delivered, no health insurance and tax numbers have been issued, no action for accommodation has been taken, due to lack of identification documents^[33].

Finally, it should be mentioned that, applicants who are subject to the EU-Turkey statement .and left the islands, despite the geographical restriction imposed, will be returned to said island upon return in Greece from another Member State within the framework of the Dublin Regulation, in virtue of a 2016 police circular.^[34] Their application will be examined under the fast track border procedure, which offers limited guarantees.^[35]

[1] CJEU, Joined Cases C-47/17 and C-48/17, X v. Staatssecretaris van Veiligheid en Justitie, Request for a preliminary ruling, Judgment of 13 November 2018, available at: https://bit.ly/2KpcqiA.

[2] Information provided by the Dublin Unit, 19 February 2021.

[3] The online application is available at: https://applications.migration.gov.gr/ypiresies-asylou/. 

[4] Information provided by the Greek Dublin Unit, 19 February 2021.

[5] Law 4554/2018, Chapter C.

[6] Art. 4 IPA (amended by the Law 4686/2020).

[7] METAdrasi NGO, Presse release, available at: https://bit.ly/3DcexB1.

[8] Hellenic Republic, Ministry of Migration & Asylum, available at: https://bit.ly/36OiAXS.

[9] Information provided by the Greek Dublin Unit, 12 March 2021.

[10] “Tipping the scales”: a joint Oxfam and GCR briefing paper, published in February of 2021, available at: https://bit.ly/3mJHpsd.

[11] European Commission: Relocation of unaccompanied children from Greece to Portugal and to Finland –Questions and answers, available at: https://bit.ly/2OGowty

[12] UNHCR _ Explainer: Relocation of unaccompanied children from Greece to other EU countries, available at: https://bit.ly/2Rrhwln

[13] Information provided by the Ministry of Migration & Asylum Special Secretariat for the Protection of Unaccompanied Minors, 9f March 2022.

[14] EASO and Greece, 2021 Operating Plan, December 17 December 2020, available at: https://bit.ly/3qDLOzQ.

[15] ECRE, ‘The Role of EASO Operations in National Asylum Systems’, 29 November 2019, available at: https://bit.ly/2x2uzzN.

[16] One can go through the information provided in the Note of every month of 2021 here https://bit.ly/3NBvgBN.  

[17] Article 5 Dublin III Regulation.

[18] European Parliamentary Research Service, Dublin Regulation on international protection applications, February 2020, available at:  https://bit.ly/2PLN19g, 57.

[19] Article 84(1)(b) and Article 92(1)(b) IPA.

[20] Article 84(1)(b) and Article 92(1)(b) IPA.

[21] Ibid.

[22] Article 104(1) and (2)(a) IPA.

[23] Article 116(2) IPA.

[24] ECtHR, M.S.S. v. Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011; CJEU, Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department, Judgment of 21 December 2011. 

[25] Commission Recommendation of 10 February 2016, C(2016) 871; Commission Recommendation of 15 June 2016, C(2016) 2805; Commission Recommendation of 28 September 2016, C(2016) 6311.

[26] Commission Recommendation of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013, C(2016) 8525. For a critique, see Doctors of the World Greece, ‘Επανέναρξη των επιστροφών «Δουβλίνου»’, 14 December 2016, available in Greek at: http://bit.ly/2gHDKMJ; Amnesty International, ‘EU pressure on Greece for Dublin returns is “hypocritical”’, 8 December 2016, available at: http://bit.ly/2kG8Dzf; Human Rights Watch, ‘EU: Returns to Greece Put Refugees at Risk’, 10 December 2016, available at: http://bit.ly/2hgVaNi; ECRE, GCR, Aitima and SolidarityNow, Letter to the President of the European Commission and the Greek Minister of Migration Policy “Re: Joint Action Plan on EU-Turkey Statement and resumption of Dublin transfers to Greece”, 15 December 2016, available at: http://bit.ly/2kGcc8P; National Commission for Human Rights, ‘Statement in response to the recommendation of the European Commission to reactivate the refugee return mechanism under the Dublin system’, 19 December 2016, available at: http://bit.ly/2kGi7us.

[27] Commission Recommendation C(2016) 8525, para 9. 

[28] National Commission for Human Rights, ‘Statement in response to the recommendation of the European Commission to reactivate the refugee return mechanism under the Dublin system’, 19 December 2016, available at: http://bit.ly/2kGi7us.

[29] High Administrative Courts (Oberverwaltungsgerichte / Verwaltungsgerichtshöfe), Applicant (Eritrea) v Federal Office for Migration and Refugees, 21 January 2021.

[30] Full case summary can be found at EASO Case Law Database, available at: https://bit.ly/2PMoOzG.

[31] European Parliamentary Research Service, Dublin Regulation on international protection     applications, February 2020, available at:  https://bit.ly/2PLN19g, 57.

[32] Refugee Support Aegean, Dublin returns to Greece, available at: https://bit.ly/3tHwi7T: “At the moment, the Greek reception system is undergoing a gradual transformation through the dismantling of open housing facilities in favour of large-scale “closed controlled centres”, while a coherent policy to support integration of people granted international protection is still lacking. Despite these circumstances, EU Member States and Schengen Associated Countries continue to send thousands of Dublin take back requests to return asylum seekers to Greece. In line with a Recommendation^[32] from the European Commission, Dublin transfers to Greece are carried out following the provision of individual assurances by the Greek Dublin Unit relating to the treatment of returnees in line with the EU asylum acquis.

[33] Refugee Support Aegean. Recognised refugee returned to Greece, destitute, forgotten and undocumented, available at: https://bit.ly/3K0Mt6l.

[34] Police Circular No 1604/16/1195968, available at: https://bit.ly/3dVQ05t.

[35] See to this regard: RSA/PRO ASYLl, Legal Status and Living Conditions of a Syrian asylum-seeker upon his return to Greece under the Dublin Regulation, December 2019, available at: https://bit.ly/3fMEfzH