Dublin

Romania

Country Report: Dublin Last updated: 30/11/20

Author

JRS Romania Visit Website

 

 

Dublin statistics: 2019

 

Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

239

16

Total

1,386

141

Bulgaria

121

3

Germany

565

81

Greece

62

0

France

310

:

Germany

7

7

Austria

182

17

Netherlands

6

2

UK

63

:

UK

4

0

Belgium

58

:

Cyprus

4

0

Italy

11

:

Source: IGI-DAI, 20 February 2020.

 

In 2019, Romania issued 239 and received 1,386 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

12

21

Regular entry: Articles 12 and 14

16

89

Irregular entry: Article 13

14

77

Dependent persons and humanitarian clause: Articles 16 and 17(2)

4

11

“Take back”: Articles 18 and 20(5)

193

1,188

Total outgoing and incoming requests

239

1,386

Source: IGI-DAI, 20 February 2020 (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.

 

One case reported in Timișoara concerned an unaccompanied child from Afghanistan who lodged the asylum application in September 2017 and was taken under the care of DGASPC in November 2017. IGI-DAI closed his file believing that he had left the centre. The legal counsellor notified IGI-DAI of the error and his case was reopened in December 2017, when the Dublin procedure was also triggered. After four requests sent to the United Kingdom to “take charge” of the child, who has an uncle living there, the UK accepted the request in November 2018.

 

Şomcuta Mare: two brothers, unaccompanied minors, (who were accompanied by their underaged cousins) declared during the personal interview that their dad resides in another Member State. Their asylum procedure was suspended but soon after they left the Regional Centre.

 

Galaţi: The Dublin procedure was initiated for an unaccompanied child, who had a brother in France, but he left the Regional Centre before he received a decision.

 

Rădăuţi: 3-4 unaccompanied children were reunited with their family members in Germany. In 2 months, they were already transferred to Germany. There is still 1 unaccompanied minor who has been waiting for his transfer to Germany for 3 months. Moreover, an asylum seeker was reunited with his spouse and child in Belgium.

 

The most frequent criteria for outgoing requests were “take back”, mainly addressed to Bulgaria. Similarly, the majority of incoming requests to Romania concern “take back” cases.[1]

 

The dependent persons and discretionary clauses

 

In 2019, Romania issued 1 outgoing request and received 10 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 2019.[2]

 

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,[3] 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.[4]

 

 Individualised guarantees

 

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

 

In a first instance decision of 6 August 2019, concerning an asylum seeker from Iran, IGI-DAI Regional Centre Şomcuta Mare denied access to the asylum procedure in Romania and ordered his transfer to Bulgaria. The Bulgarian authorities assumed responsibility to take back the asylum seeker. The decision does not mention any other detail regarding the stage of his procedure or if individualised guarantees were requested. IGI-DAI explained its decision not to examine the application as follows: “The access to the asylum procedure was not restricted; there is no mention that the Bulgarian authorities did not fulfil their obligations undertaken at European and international level related to reception conditions and assessment of asylum claims.” No other explanation was given by IGI-DAI in the decision.[5] The asylum seeker challenged the decision, but later he withdrew his appeal and returned to his country of origin.

 

In another decision taken on 21 November 2019, concerning an asylum seeker from Afghanistan, IGI-DAI Regional Centre Giurgiu denied access to the asylum procedure in Romania and ordered his transfer to Bulgaria. The decision only states that the asylum seeker made an asylum application in Bulgaria on 4 September 2019 and that the Bulgarian authorities assumed responsibility to take back the asylum seeker. The decision does not mention any information regarding the stage of his procedure or if individualised guarantees were requested. It does not even mention the paragraph mentioned above, which was widely used in Dublin decisions in 2018.[6]

 

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.[7]

 

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

(a)   The obligation to report at IGI;[8]

(b)   Designation of his or her residence in a Regional Centre of Procedures for Asylum Seekers;[9]

(c)   Placement or, as the case may be, remaining in public custody (detention).[10]

 

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.[11] Reporting duties and residence in a specific place may be imposed in order to ensure the transfer.[12] 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.[13]

 

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 3 months.[14] This is corroborated by information provided by the stakeholders in Rădăuţi, Şomcuta Mare and Timișoara interviewed by the author, who indicated that the average duration of the Dublin procedure is around 2-3 months, the only exceptions are in Bucharest and Giurgiu where, according to the JRS representative, the transfers were carried out in maximum 2 weeks and 6-9 months respectively.

 

According to the stakeholders interviewed by the author, most asylum seekers decide to continue their journey to other countries, once they are informed about the final decision of their Dublin transfer.

 

Timișoara: According to the director of the Regional Centre, there were only two transfers effectively conducted to Bulgaria out of 40 outgoing requests. The transfers to Bulgaria were carried out within 2 months of the start of the procedure. 3-4 transfers to Germany were carried out within 3-4 months from the start of the procedure. According to JRS representative, the transfers are carried out within 2-3 months.

 

Rădăuţi: According to JRS representative, there was only one outgoing request sent to Bulgaria. The transfer was carried out in 2 weeks after the court reached a decision. The transfers to Germany were carried out within 2 months. One transfer to Belgium was carried out within 2,5 months.

 

Bucharest: Transfers are carried out within a maximum of 2 weeks from the date the Member State accepted its responsibility. According to the JRS representative, only one asylum seeker was transferred to Sweden under the Dublin Regulation in 2019.

 

Giurgiu: The JRS legal counsellor mentioned that it depends on the correspondence with the Member State concerned, the exchange of documents and complexity of the case. On average, the Dublin procedure may take 6-9 months. Transfers to Bulgaria were carried out within approximately 1 month and in some cases even sooner.

 

Galaţi: According to the legal counsellor, no transfers were carried out because the asylum seekers left before receiving a decision from IGI-DAI.

 

Şomcuta Mare: A transfer to Austria was carried out in 4 weeks from the date of the final decision of the court. The duration of the whole procedure was around 4-5 months since the suspension of the asylum procedure in Romania.

 

Romania issued 239 requests and implemented 16 transfers in 2019, thereby indicating a transfer rate of 6.6%.[15]

 

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.[16]

 

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.[17] 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.[18] The request for suspension is decided urgently in the council chamber by final conclusion, and the parties are summoned.[19] The implementation of the transfer decision is suspended until the court decides on the request for suspension.[20]

  

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.[21]

 

The court shall settle the case within maximum 30 days.[22] The competent court is the Regional Court (Judecatoria) with territorial jurisdiction over the area in which IGI has issued the decision.[23] The decision of the court is final.[24]

 

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.[25]

 

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.

 

Galaţi: According to the legal counselor, the authorities do not assess the individual guarantees within the Dublin procedure.

 

Timișoara: According to the director of IGI-DAI Timișoara, the two asylum seekers transferred to Bulgaria did not appeal the decision, as they wanted to be transferred back to Bulgaria. However, according to JRS representative and CNRR legal counselor, both asylum seekers appealed the decision rejecting their access to the asylum procedure in Romania and ordering their transfer to Bulgaria.

 

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.[26]

 

Timișoara: According to the director of IGI-DAI Timișoara, there were 2-3 outgoing requests sent to Greece. The transfers were not implemented as the asylum seekers left before they received the decision.

 

Şomcuta Mare: 1 family from Iraq (parents and 2 children) and 1 single parent family from Syria (father and son), 1 Somali single man, 2 Afghani single men and 3 Syrian single men were found to have an Eurodac ‘hit’ with Greece. The single parent family was granted access to the asylum procedure in Romania and was granted subsidiary protection. The Somali asylum seeker was granted access to the asylum procedure in Romania, but his claim was rejected under the accelerated procedure. The rest of the asylum seekers left the centre.

 

Bucharest: 1 family (husband and wife) had an Eurodac ‘hit’ with Greece. They were granted access to the asylum procedure in Romania, as Greece did not accept them.

 

Bulgaria: There are no reported cases in which the transfer to Bulgaria was suspended by IGI-DAI or Regional Courts.

 

Galaţi: 4 asylum seekers from Iraq were found to have a Eurodac hit with Bulgaria. They appealed the transfer decision of IGI-DAI, but they left before receiving a final decision from the court.

 

Timișoara: According to the director of the Regional Centre, there were only two transfers effectively conducted to Bulgaria out of 40 outgoing requests.

 

The Regional Court of Rădăuţi, in a case concerning an asylum seeker from Iraq, dismissed the appeal against a transfer to Bulgaria based on the reiteration of the arguments of the IGI-DAI’s first instance decision. These referred mainly to the EASO Special Support Plan to Bulgaria of December 2014, more specifically to the first two paragraphs, which were copied. IGI-DAI and the Court, respectively, referred to Council Decision (EU) 2015/1601 of 22 September 2015 establishing relocation from Italy and Greece and held that, as long as no measure of this kind was adopted vis-à-vis Bulgaria, the situation in Bulgaria should not fall under Article 3(2) of the Dublin Regulation. The Court also dismissed the country reports provided by the applicant in relation to the situation in Bulgaria, as the information dating back to 2016 were outdated. In addition, the Court also made a reference to the applicant’s health status, which does not impede a transfer to Bulgaria.[27]

 

Giurgiu: In 2019 there were 3 ‘Dublin’-appeals, out of which 2 cases concerned the suspension of transfer to Bulgaria and one to the Netherlands. The Regional Court of Giurgiu dismissed both appeals against the transfer to Bulgaria.[28]

 

The situation of Dublin returnees

 

The Asylum Act includes provisions concerning cases of express and tacit withdrawal of an asylum application.[29] 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.[30] In case of tacit withdrawal, IGI-DAI writes a report regarding the absence of the asylum seeker from the interview.[31] 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.[32]

 

When the asylum seeker expressly withdraws his or her asylum claim, this is considered an explicit withdrawal of the asylum application.[33] 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.[34]

 

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.[35] If the time limit has expired, the asylum claim is considered a Subsequent Application.

 

The legal framework is different when a person had 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.[36]

 

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 previously 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.

 

Timișoara: According to the director of IGI-DAI Timișoara, there were 6 requests of incoming transfers, but only one asylum seeker was effectively transferred from Germany to the Regional Centre Timișoara. The asylum seeker returned continued his asylum procedure. 

 

Galaţi: According to the legal counsellor at least one asylum seeker was transferred from Germany. He or she continued the asylum procedure.

 

Rădăuţi: According to JRS representative, approximately 4 asylum seekers were transferred from Austria, Sweden, Belgium and Germany.

 

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

 

Giurgiu: According to JRS representative, they all continued their asylum procedure. However, there was a case where IGI-DAI did not conduct the interview. Only after the request from JRS to reassess the case, the interview was conducted.

 

They all continued their asylum procedure in Romania.

 

Romania received 141 incoming transfers in 2019.[37]

 



[1]Information provided by IGI-DAI, 20 February 2020.

[2]Information provided by IGI-DAI, 20 February 2020.

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

[4]Article 18(3) Asylum Decree.

[5]IGI-DAI Şomcuta Mare, Decision of 06 August 2019.

[6]IGI-DAI Giurgiu, Decision of 21 November 2019.

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

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

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

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

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

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

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

[14]Information provided by IGI-DAI, 20 February 2020.

[15]Information provided by IGI-DAI, 20 February 2020.

[16]Article 43(3) Asylum Act.

[17]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.

[18]Article 121(3) Asylum Act.

[19]Ibid.

[20]Article 121(4) Asylum Act.

[21]Article 121(5) Asylum Act.

[22]Article 121(6) Asylum Act.

[23]Article 121(2) Asylum Act.

[24]Article 121(7) Asylum Act.

[25]Article 121(8) Asylum Act.

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

[27]Regional Court of Rădăuţi, Decision 1015/2019, 8 April 2019.

[28]Information provided by Regional Court of Giurgiu, 4 February 2019.

[29]Article 51 Asylum Act.

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

[31]Article 51(3) Asylum Act.

[32]Article 51(5) Asylum Act.

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

[34]Article 51(2) Asylum Act.

[35]Article 94^1 Asylum Act.

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

[37]Information provided by IGI-DAI, 20 February 2020.

 

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