Dublin

Author

JRS Romania

General

• Dublin procedure: in the outgoing procedure, Romania sent 243 requests, of which 184 were accepted and 23 transfers were implemented, making for a 12.5% outgoing transfer rate; it received 6,215 requests in the incoming procedure, of which 3,704 were accepted and transferred 443 applicants, making for a 11.93% incoming transfer rate.

For 2023, the following criteria were used:

Source: IGI-DAI, information provided upon request, 18 January 2024.

Source: IGI – DAI, 18 January 2024

Source: IGI-DAI, 18 January 2024

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 legal counsellors, family unity is the most frequent criterion applied in practice, with the majority of cases concerning reunion with family outside Romania.

According to data provided by IGI-DAI,[1] for the year 2023, the situation was as follows:

• Bucharest: 11 adults and 2 unaccompanied children transferred to Germany, Bulgaria, Finland and Poland.
• Giurgiu: 0 persons.
• Galati: 2 adults transferred to Austria and Germany.
• Suceava: 4 adults transferred to Germany and Bulgaria.
• Şomcuta Mare : 0 persons.
• Timisoara: 3 unaccompanied children transferred to Germany.

The situation in 2022 was as follows:

In Timișoara the family criterion was applied in 2022 in the cases of 2-3 unaccompanied children with relatives in other State Members, according to the director of the centre. They were transferred in Germany and the Netherlands.

Şomcuta Mare: The director of the centre reported 67 outgoing cases (61 take charge and six take back) and the recipient country was Bulgaria. None of the asylum seekers were transferred to Bulgaria, as they left the centre before a decision was issued.

Giurgiu: according to the director of the centre, there were 165 outgoing requests, of which 31 were granted access to the asylum procedure in Romania. The main recipient countries were Bulgaria, Greece, Croatia, and Cyprus. Transfers were carried out to Bulgaria.

Galaţi: 47 outgoing requests were reported by the director of the centre. The majority of the cases (34) were hits for Bulgaria. No transfers were carried out.

Rădăuţi: 38 outgoing requests were made of which 10 were to Bulgaria, four to Greece and one to Germany.

Bucharest: in 2022 there were 11 outgoing requests, according to the director of the centre in Vasile Stolnicu.

The most frequent criteria for outgoing requests were “take back”, mainly addressed to Bulgaria and Greece. Similarly, the majority of incoming requests to Romania concern “take back” cases.[2]

The dependent persons and discretionary clauses

In 2022, Romania issued one outgoing request and received two incoming requests based on the humanitarian clause. No outgoing nor incoming requests based on the dependent persons clause were issued or received in 2022. The sovereignty clause was not applied in 2022.[3] No information was provided by IGI-DAI for 2023.

Procedure

According to IGI-DAI, in 2023, the outgoing and incoming requests were processed within the terms stipulated in the Dublin III Regulation.[4]

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,[5] according with IGI-DAI, a coercive restraint may be applied (details about this measure were not provided).[6]

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

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 and Galati the Dublin Unit does not seek individualised guarantees but requests information regarding the stage of the procedure prior to a transfer. For 2023, IGI-DAI indicated that the Dublin Unit does not seek to request individualised guarantees; further details were not provided.[8]

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 they have the right to stay in the regional centres until the date they are 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.[9]

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;[10]
• Designation of their residence in a Regional Centre of Procedures for Asylum Seekers;[11]
• Placement or, as the case may be, remaining in public custody (detention).[12]

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.[13] Reporting duties and residence in a specific place may be imposed in order to ensure the transfer.[14] 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.[15]

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 2-3 months. The average duration of the process between acceptance of responsibility and transfer takes one month.[16] In Bucharest, and Şomcuta Mare the stakeholders reported no transfers. For 2023, IGI-DAI did not indicate an average duration of the process.

The situation was as follows in 2022:

Timișoara: According to the director of the Regional Centre, the Dublin procedure lasted around six months and transfers were conducted within two to three weeks. The Save the Children representative reported that the procedure lasted for longer in case of unaccompanied minors who were accommodated at DGASPC, between four and nine months.

Rădăuţi: the Dublin procedure lasted approximately three months in case charge requests and two months for take back requests.

Bucharest: in 2022 transfers were carried out to other Member States according to the deputy director of the centre in Vasile Stolnicu, as follows: 1 Austria, 2 Bulgaria, 2 Poland, 2 Germany and 1 Finland. Transfers were carried out within 2-3 months after the request being sent to the other Member State.

Giurgiu: transfers were carried out to Bulgaria within 21 days after their acceptance.

Şomcuta Mare: no transfers were reported.

Galaţi: No transfers were reported by the director. At the time of the author’s interview with the director of the centre on 6 March 2023 one detained asylum seeker’s transfer to Bulgaria was pending. He had been accepted by Bulgaria on 20 September 2022.

Romania issued 551 requests and implemented 11 transfers in 2022, thereby indicating a transfer rate of 1.99 %.[17] Based on the numbers communicated by IGI-DAI for 2023, with 1,288 requests and 99 transfers, the transfer rate was of 7.69% in 2023.

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.[18]

As of 2022, 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, also in 2023. 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, they may request it under the provisions of the Asylum Act.[19] 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 of 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.[20] The request for suspension is decided urgently in the council chamber by final conclusion, and the parties are summoned.[21] The implementation of the transfer decision is suspended until the court decides on the request for suspension.[22]

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.[23]

The court shall settle the case within maximum 30 days.[24] The competent court is the Regional Court (Judecatoria) with territorial jurisdiction over the area in which IGI has issued the decision.[25] The decision of the court is final.[26]

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 them to the territory of Romania.[27]

No appeals were registered by the Regional Courts, according to the information provided. In 2023, according with data provided by IGI-DAI[28], a total of 21 appeals were formulated by asylum seekers subjected to transfer to another country as part of the Dublin procedure (10 in Bucharest, 2 in Rădăuţi and 9 in Timisoara). No further details were provided.

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 resumed Dublin procedures to Greece as of 1 October 2018.[29] 73 outgoing requests were made to Greece in 2022, according to the statistics provided by IGI-DAI and no transfers to Greece were carried out.[30] The directors of the regional centres stated that transfers to Greece are not carried out. In 2023, transfers to Greece were not carried out.[31]

Bulgaria: The highest number of “take back” requests (205) were issued to Bulgaria in 2022 but only two transfers were carried out.[32] In 2023, one request was sent and one transfer was implemented.

The situation of Dublin returnees

The Asylum Act includes provisions concerning cases of express and tacit withdrawal of an asylum application.[33] 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 their absence.[34] In case of tacit withdrawal, IGI-DAI writes a report regarding the absence of the asylum seeker from the interview.[35] 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.[36]

When the asylum seeker expressly withdraws their asylum claim, this is considered an explicit withdrawal of the asylum application.[37] The asylum seeker shall be informed of the consequences of their withdrawal in a language they understand or are reasonably supposed to understand.[38]

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.[39] 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 as a subsequent application.[40]

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.

In 2022 Romania received 306[41] incoming transfers, compared to 600[42] incoming transfers in 2021. In 2023, Romania received 4,851 requests, and 344 incoming transfers.

In 2023, KlikAktiv and ProAsyl[43] reported cases of “formalised push-backs” between Romania and Serbia which clearly violated people’s right to seek asylum and the principle of non-refoulement with deportations of third country nationals, including people seeking international protection, back to Serbia by applying the readmission agreement between the EU and Serbia without an effective assessment of protection needs or asylum claims. One person seeking international protection was deported from Romania to Serbia immediately after he was identified on Romanian territory. Cases of Dublin returnees transferred back to Romania then being further deported to Serbia based on the readmission agreement were also reported.

[1] Information provided by IGI-DAI, 18 January 2024.

[2] Information provided by IGI-DAI, 22 February 2023.

[3] Information provided by IGI-DAI, 22 February 2023.

[4] Information provided by IGI-DAI, 18 January 2024.

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

[6] Information provided by IGI-DAI, 18 January 2024.

[7] Article 18(3) Asylum Decree.

[8] Information provided by IGI-DAI, 18 January 2024.

[9] Article 19^1(1)-(2) Asylum Act.

[10] Article 19^2(1)(a) Asylum Act.

[11] Article 19^2(1)(b) Asylum Act.

[12] Article 19^2(1)(d) Asylum Act.

[13] Article 19^2(3) Asylum Act.

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

[15] Article 19^14(10) Asylum Act.

[16] Information provided by IGI-DAI, 11 March 2022.

[17] Information provided by IGI-DAI, 22 February 2023.

[18] Article 43(3) Asylum Act.

[19] 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.

[20] Article 121(3) Asylum Act.

[21] Ibid.

[22] Article 121(4) Asylum Act.

[23] Article 121(5) Asylum Act.

[24] Article 121(6) Asylum Act.

[25] Article 121(2) Asylum Act.

[26] Article 121(7) Asylum Act.

[27] Article 121(8) Asylum Act.

[28] Information provided by IGI-DAI, 18 January 2024.

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

[30] Information provided by IGI-DAI, 22 February 2023.

[31] Information provided by IGI-DAI, 18 January 2024.

[32] Ibid.

[33] Article 51 Asylum Act.

[34] Article 51(1)(b) Asylum Act.

[35] Article 51(3) Asylum Act.

[36] Article 51(5) Asylum Act.

[37] Article 51(1)(a) Asylum Act.

[38] Article 51(2) Asylum Act.

[39] Article 94^1 Asylum Act.

[40] Article 94^1(1)(a) Asylum Act.

[41] Information provided by IGI-DAI, 22 February 2023.

[42] Information provided by IGI-DAI, 11 March 2022.

[43] KlikAktiv, Pro Asyl, Formalizing Pushbacks – The use of readmission agreements in pushback operations at the Serbian-Romanian border, 2023, available here.