Dublin

Romania

Country Report: Dublin Last updated: 30/04/21

Author

Felicia Nica with support from JRS Romania Visit Website

General

 

Measures imposed during the pandemic

 

During the state of emergency (13 March 2020- 14 May 2020) Dublin transfers were suspended. No measures were imposed regarding outgoing and incoming requests. During the state of alert (still in place in April 2021) transfers were gradually resumed.

In practical terms, this meant that initially, between 15 May 2020 and 14 October 2020, only foreigners who were still considered asylum seekers by Romania were transferred. Transfers were only possible when the other Member States respected certain administrative and preventive measures. As from 15 October 2020 transfers for all categories of foreigners were resumed, with the obligation of authorities from all member states to respect the measures to contain the spread of the virus, such as: prior COVID test, cancelling the transfer in case of positive test results.[1]

Dublin transfers to Romania take place under the following conditions:

  • information about the transfer should be submitted 10 working days before the expected date of transfer;
  • information about quarantine of the foreigner who will be transferred should be provided. Annex XI of the 118/2014 Regulation should be submitted jointly with the transfer data;
  • information about past COVID-19 infection of the foreigner should be provided;
  • transfers through commercial flights should be avoided; transfers should be carried out through charter flights;
  • the foreigner should be tested for COVID-19 72h prior to the transfer; the test results should be transmitted 1 day before the transfer, at the latest;
  • foreigners who are transferred from areas with a high risk of infection and spread of COVID-19, upon arrival, will be quarantined for 14 days.[2]

As for transfers from Romania to other Member States, the rules and measures imposed by each Member States are followed.[3]

 

Dublin statistics: 2020

 

Outgoing procedure Incoming procedure
  Requests Transfers   Requests Transfers
Total 168 5 Total 3,221 73
Bulgaria 112 0 Germany 1,076 30
Croatia 14 0 Austria 793 32
Germany 18 2 France 562 1
Austria 5 0 Netherlands 111 2
Italy 5 0 Slovakia 92 0
Spain 3 0 Belgium 95 1

 Source: IGI-DAI, 3 March 2021.

In 2020, Romania issued 168 and received 3,221 requests under the Dublin Regulation. The following criteria were used:

Outgoing and incoming Dublin requests by criterion: 2019
Dublin III Regulation criterion Outgoing Incoming
Family provisions: Articles 8-11 13 19
Regular entry: Articles 12 and 14 4 186
Irregular entry: Article 13 13 47
Dependent persons and humanitarian clause: Articles 16 and 17(2) 0 4
“Take back”: Articles 18 and 20(5) 138 2,964
Total outgoing and incoming requests 168 3,221

Source: IGI-DAI, 3 March 2021 (information requests under article 34 of the Dublin-regulation are not included).

Application of the Dublin criteria

To prove family links, the asylum seeker is not required to present original documents or to undertake DNA tests. In general, they present copies of the family book, birth certificate, residence permit of the relative with whom they would like to be reunited and, in the case of unaccompanied children, the relative’s desire to be reunited with the unaccompanied child, expressed in writing. According to the legal counsellors, family unity is the most frequent criterion applied in practice, with the majority of cases concerning reunion with family outside Romania.

In Timișoara the family criterion was applied in 2020 in case of 2 unaccompanied children with relatives in other State Members. They arrived in the centre in 2019 and due to the pandemic their transfer was stayed. The COVID-19 test requested by the Member State was covered by DGASPC. According to the director of Timișoara centre they were transferred in June-July 2020.

Şomcuta Mare: There were no Dublin transfers; decisions were issued in their absence, as they left the centre, according to JRS representative. The case of an unaccompanied minor was reported who declared that he had a brother in the UK, but he failed to submit relevant documents. Thus his claim was assessed in Romania and it was rejected. The case of another unaccompanied minor is pending.

Giurgiu: according to the JRS representative there were no Dublin cases in 2020. The regional Court Giurgiu also reported that there were no appeals registered against decisions issued in Dublin procedure.

 

Galaţi: No transfers were carried out to other Member States. It was reported that there were many cases of a hit for Bulgaria, but the asylum seekers left the centre before the decision was communicated. An asylum seeker has been waiting for his transfer to Estonia for 6 months since the courts final decision

Rădăuţi: family criterion was also applied; asylum seekers had relatives in Poland, Germany and Italy.

Bucharest: transfers were suspended from March 2020 until November 2020; according to JRS transfers to other countries were not carried out.

The most frequent criterion for outgoing requests were “take back”, mainly addressed to Bulgaria as it was in 2019. Similarly, the majority of incoming requests to Romania concern “take back” cases.[4]

The dependent persons and discretionary clauses

In 2020, Romania issued no outgoing requests and received 4 incoming requests based on the humanitarian clause. It issued 3 outgoing requests based on the dependent persons clause. The sovereignty clause was not applied in 2020.[5]

 

Procedure

 

Article 119 of the Asylum Act states that, if after lodging an application for international protection and before taking a decision in the national asylum procedure, IGI-DAI discovers proof or circumstantial evidence which indicates the responsibility of another Member State to examine the application under the Dublin Regulation, it shall initiate the Dublin procedure.

All asylum seekers are fingerprinted, photographed and checked against the Eurodac database. In practice, there were cases where asylum seekers refused to be fingerprinted but, after they were explained that this was necessary for the asylum procedure and, in case of refusal, they would have been detained, they agreed to it. In case the applicant does not comply with the obligation to be photographed and fingerprinted,[6] measures of constraint may be applied. The use of these measures must be non-punitive, proportionate and applied only for the necessary period, if there is no other way of determining the asylum seeker to cooperate with the staff of IGI-DAI.[7]

Individualised guarantees

Practice does not indicate that the Romanian Dublin Unit requests individual guarantees prior to a transfer.

The decisions issued by IGI-DAI in Galaţi and Giurgiu do not mention any information regarding the fact that individual guarantees were requested by the Romanian Dublin Unit or any information regarding the state of play of the applicant’s asylum procedure in the respective Member State. According to the director of Regional Centre Timișoara, the Dublin Unit does not seek individualised guarantees but requests information regarding the stage of the procedure prior to a transfer.

Transfers

According to Article 127 of the Asylum Act, an asylum seeker who is subject to the Dublin procedure has the same rights and obligations as an asylum seeker in the regular procedure until the date when the transfer is effectively carried out. This means that he or she has the right to stay in the regional centres until the date he or she is actually transferred to the responsible Member State.

Nevertheless, IGI-DAI may reduce or withdraw the material reception conditions of asylum seekers, including asylum seekers subject to the Dublin procedure. The motivated decision may be challenged in court.[8]

The restrictive measures prescribed by law, which may be imposed to the asylum seeker subject to Dublin procedure are:

  • The obligation to report at IGI;[9]
  • Designation of his or her residence in a Regional Centre of Procedures for Asylum Seekers;[10]
  • Placement or, as the case may be, remaining in public custody (detention).[11]

The only restrictive measure not applicable to asylum seekers subject to Dublin procedure is the placement in specially designated closed places, which are defined as alternatives to detention but in practice consist of detention rooms in the Regional Centres.[12] Reporting duties and residence in a specific place may be imposed in order to ensure the transfer.[13] Detention for the purpose of a transfer is discussed in Grounds for Detention.

If after the asylum seeker is placed in detention, one of the deadlines provided by Article 28(3) of the Dublin Regulation expires, the measure ceases to have effect. IGI draws up a notice on the cessation of the measure, which is communicated to the applicant.[14]

In general, asylum seekers subject to the Dublin procedure are not placed in detention, this was also confirmed by the IGI-DAI director from Timișoara.

           

According to IGI-DAI, the average duration of the Dublin procedure between the issuance of a request and the transfer is 3 months. The average duration of the process between acceptance of responsibility and transfer takes also approximately 2 months.[15] In Bucharest, Giurgiu and Şomcuta Mare the stakeholders reported no transfers.

Timișoara: According to the director of the Regional Centre, the Dublin procedure lasted 4-5 months. The JRS representative reported the case of an unaccompanied minor who arrived in Romania in December 2019 and was transferred in September 2020 and the case of an another minor who stayed in Romania almost a year until his transfer.

 

Rădăuţi: Transfers were carried out in 2-3 months.

 

Bucharest: No transfers were carried out to other Member States according to the director of Stolnicu and JRS representative.

Giurgiu: No transfers reported in Giurgiu, by the director and JRS representative.

Şomcuta Mare: no transfers were reported.

Galaţi: in a case of an asylum seeker who appealed against IGI-DAI decision to transfer him to Estonia, received the court decision on 15 July 2021 and in February 2021 he was still not transferred to Estonia.

The JRS representative reported 2 other cases, but there are no indications about the stage of their Dublin procedure.

 

Romania issued 164 requests and implemented 5 transfers in 2020, thereby indicating a transfer rate of 3.04%.[16]

Personal interview

According to the law, if during the preliminary interview the answers of the asylum seeker indicate the necessity to start the Dublin procedure, the preliminary interview is conducted pursuant to Article 5 of the Dublin Regulation.[17]

In Şomcuta Mare the Dublin interview is held during the preliminary interview; there is a special column dedicated to questions related to the Dublin procedure asking whether they had previously applied for asylum in another Member State. The officer in charge of fingerprinting and photographing the asylum seekers holds the interview. In Rădăuţi, the Dublin interview is held after the preliminary interview. In Galaţi the interview is conducted after the preliminary interview by the officer in charge of fingerprinting and photographing the applicants. In Giurgiu, the Dublin interview is conducted when, on the basis of the applicant’s statements and other documents, the officers determine the need to start the Dublin procedure; this is usually decided after the applicant’s preliminary interview. In Timișoara, according to the director of IGI-DAI Timișoara, the Dublin interview is an annex to the preliminary interview. The annex includes questions regarding presence in the respective Member State, knowledge of any decision taken on their application, willingness to return there. The interview is carried out by the same officer who conducts the preliminary interview.

The interview in the Dublin procedure takes place faster than in the regular procedure, even on the same day as the preliminary interview. A copy of the transcript of the interview is not handed over to the asylum seeker after the interview. However, he or she may request it under the provisions of the Asylum Act.[18] The modalities are the same as the regular procedure as regards the other aspects.

Appeal

 

Article 121 of the Asylum Act establishes the conditions of appeal in case of the Dublin procedure. The decision rejecting access to the asylum procedure in Romania and ordering the transfer to the responsible Member State may be challenged within 5 days since its communication.The transfer to the responsible Member State shall be suspended until the expiry of the legal deadline for filing the appeal.

In contrast with the regular procedure, lodging the appeal in the Dublin procedure does not have automatic suspensive effect. When appealing, the applicant may also request the suspension of the implementation of the transfer decision.[19] The request for suspension is decided urgently in the council chamber by final conclusion, and the parties are summoned.[20] The implementation of the transfer decision is suspended until the court decides on the request for suspension.[21]

In situations that could not have been taken into consideration at the moment of issuing the decision, the case officer may, ex officio, decide to suspend the transfer decision until the court has ruled on the appeal. The measure is communicated to the applicant, according to the provisions on communication of decisions in the regular procedure.[22]

The court shall settle the case within maximum 30 days.[23] The competent court is the Regional Court (Judecatoria) with territorial jurisdiction over the area in which IGI has issued the decision.[24] The decision of the court is final.[25]

If the court admits the appeal and decides that the application for international protection in Romania should be resumed and the applicant has already been transferred to the responsible Member State, IGI shall take the necessary steps to readmit him or her to the territory of Romania.[26]

According to case law in Giurgiu, the Regional Court never takes into account reception conditions, recognition rates or procedural guarantees when assessing the complaint against a Dublin transfer decision. The appeal is only a formality, there is only one hearing and the decision is a copy-paste of the IGI-DAI decision.

The Regional Court of Giurgiu rejected the appeal of a male asylum seeker from Afghanistan on 23 January 2020. In its assessment of the case the Court held that the allegations of the applicant regarding the inhumane and degrading treatment to which a person may be subjected by the Bulgarian authorities were unfounded, because Bulgaria is an EU Member State and part of the ECHR, which requires the Member State to be compliant with a set of minimum strict obligations regarding the rights and conditions offered to asylum seekers. With regards to the arguments concerning the lack of effective access to an asylum procedure in Bulgaria the court reiterated the legal provisions of the Dublin Regulation, ruling that the Bulgarian authorities are obliged to ensure the possibility to challenge the decision issued by the authorities in his case.[27]

 

Galaţi: According to the legal counsellor, the authorities do not assess the individual guarantees within the Dublin procedure. In the case of the asylum seeker who waits for his transfer to Estonia, the court assessed the family unity principle, because the asylum seeker has a child in Romania.

Legal assistance

According to Article 127 of the Asylum Act, an asylum seeker subject to the Dublin procedure has the same rights and obligations as an asylum seeker in the regular procedure until the date when the transfer is effectively carried out. Hence, they also have access to free legal assistance.

Asylum seekers have the same conditions to access legal assistance in the Dublin procedure as those subject to the regular procedure (see Regular Procedure: Legal Assistance). The only difference, which might be problematic, is the 5-day deadline to lodge an appeal against a Dublin decision. Nevertheless, legal counsellors have not reported any problems in filling appeals against negative decisions.

 

Suspension of transfers

 

Greece: Romania has resumed Dublin procedures to Greece as of 1 October 2018.[28]

No outgoing requests were made to Greece in 2020, according to the statistics provided by IGI-DAI.[29]

Bulgaria: the highest number of “take back” requests (111) were issued to Bulgaria but no transfers were carried out.

The situation of Dublin returnees

The Asylum Act includes provisions concerning cases of express and tacit withdrawal of an asylum application.[30]An implicit or tacit withdrawal of an asylum application occurs when the applicant is not present on the scheduled time for the preliminary interview or personal interview, without presenting good reasons for his or her absence.[31] In case of tacit withdrawal, IGI-DAI writes a report regarding the absence of the asylum seeker from the interview.[32] In these cases, the decision to close the file shall be issued after the expiration of a period of 30 days from the date of the aforementioned report.[33]

When the asylum seeker expressly withdraws his or her asylum claim, this is considered an explicit withdrawal of the asylum application.[34] The asylum seeker shall be informed of the consequences of his or her withdrawal in a language he or she understands or is reasonably supposed to understand.[35]

When an asylum application was tacitly withdrawn and the asylum procedure was discontinued (i.e. the case of a person who have left Romania and moved to another EU Member State), if the person makes an asylum claim within 9 months of the decision to close the file issued for implicit withdrawal, the asylum procedure may be continued.[36] If the time limit has expired, the asylum claim is considered a Subsequent Application.

The legal framework is different when a person has left the territory for at least 3 months or had been removed to a third country or to the country of origin under Articles 19(2) and (3) of the Dublin Regulation and, consequently, the asylum procedure was discontinued by a decision closing the file. In this case, a new claim lodged successively in Romania is not considered a subsequent application.[37]

Therefore, persons who expressly withdrew their asylum applications without leaving the territory of the EU or being returned to a third country or the country of origin, cannot continue their asylum procedure in case of return to Romania. As a consequence, they will have to lodge a subsequent application.

It should be noted that the Asylum Act does not fully comply with Article 18(2) of the Dublin Regulation, which allows applicants whose claims have been withdrawn to have access to the procedure without lodging a subsequent application.

For persons returned to Romania who have been previously interviewed and received a negative decision in the administrative phase of the procedure and have not sought judicial remedy, the asylum procedure does not continue. They may only lodge a subsequent application. For persons returned to Romania who have not been previously interviewed the asylum procedure continues.

 

Timișoara: According to the director of the Regional Centre Timișoara, there were 4 requests of incoming transfers, from Germany to the Regional Centre Timișoara. The returned asylum seeker continued his asylum procedure.

Galaţi: According to the legal counsellor around 3 asylum seekers were transferred from other Member States in December 2020. One was transferred from Austria.

Rădăuţi: According to the JRS representative, 1 asylum seeker was transferred in December from another Member State.

Bucharest: According to JRS representative, 3 asylum seekers were transferred from Germany. They all continued their procedure and most of the asylum applications in these cases were dismissed.

 

Romania received 73 incoming transfers in 2020.[38]

 

 

[1]          Information provided by IGI-DAI, 16 February,2021.

[2]          Ibid.

[3]          Ibid.

[4]          Information provided by IGI-DAI, 16 February 2021.

[5]          Information provided by IGI-DAI, 16 February 2021.

[6]          In accordance with Article 19(a) Asylum Act.

[7]          Article 18(3) Asylum Decree.

[8]          Article 19^1(1)-(2) Asylum Act.

[9]          Article 19^2(1)(a) Asylum Act.

[10]         Article 19^2(1)(b) Asylum Act.

[11]         Article 19^2(1)(d) Asylum Act.

[12]         Article 19^2(3) Asylum Act.

[13]         Articles 19^3 and 19^4 Asylum Act.

[14]         Article 19^14(10) Asylum Act.

[15]         Information provided by IGI-DAI, 16 February 2021.

[16]         Information provided by IGI-DAI, 16 February 2021.

[17]         Article 43(3) Asylum Act.

[18]         Article 17(1)(f^1) sets out the right to have access, personally or through a representative, to the information contained in the personal file, unless the disclosure of the information or sources, from which it was obtained would jeopardise the national security, the organisations or persons who provided that information, or if it would be prejudicial to the examination of the application for international protection. Access to the information in the personal file is based on a request addressed to the specialised asylum structure of IGI. At the request of the applicant for international protection, copies of documents from the personal file may be issued free of charge, in accordance with the provisions of the present law.

[19]         Article 121(3) Asylum Act.

[20]         Ibid.

[21]         Article 121(4) Asylum Act.

[22]         Article 121(5) Asylum Act.

[23]         Article 121(6) Asylum Act.

[24]         Article 121(2) Asylum Act.

[25]         Article 121(7) Asylum Act.

[26]         Article 121(8) Asylum Act.

[27]         Regional Court Giurgiu, Decision no.128/23.01.2020.

[28]         Information provided by IGI-DAI, 5 March 2019.

[29]         Information provided by IGI-DAI, 16 February 2021.

[30]         Article 51 Asylum Act.

[31]         Article 51(1)(b) Asylum Act.

[32]         Article 51(3) Asylum Act.

[33]         Article 51(5) Asylum Act.

[34]         Article 51(1)(a) Asylum Act.

[35]         Article 51(2) Asylum Act.

[36]         Article 94^1 Asylum Act.

[37]         Article 94^1(1)(a) Asylum Act.

[38]         Information provided by IGI-DAI, 16 February 2021.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the first report
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation