Dublin

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General

Due to the COVID-19 pandemic, Dublin transfers were de facto suspended for several months from April 2020 up until the writing of this report, although no official decision on the suspension was made. In 2021 Dublin procedures were re-established and 7 outgoing transfers and 112 incoming transfers were carried out during the year.

Dublin statistics: 2021

Dublin statistics: 1 January – 31 December of 2021

Source: Official statistics provided by the Migration Directorate, March 2022.

Note that “requests” refers to both sent and accepted requests.

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

 Source: Migration Office, March 2022.  

 Source: Migration Directorate.

Application of the Dublin criteria

In practice, the most frequently used criteria for outgoing Dublin requests are irregular entry,[1] and first country of application.[2] The most frequently used criterion for incoming requests is the first country of application.[3]

In 2021, the most frequently used basis for outgoing requests was Article 18  of the Dublin Regulation, while the majority of incoming requests were based on Article 18(1)(b) of the Regulation. Out of 1,351 outgoing requests made in 2021, 969 were rejected by other Member States. The most common reasons why the requested Member States deemed that they were no longer responsible were: the departure of the individual from the territory of the Member States for at least three months; non-registration of irregular entry in the other Member State; and return or removal of the person to the country of origin or a safe third country.

According to available information, the family unity criteria under Articles 8-11 of the Regulation are respected in practice, both in outgoing and incoming procedures. Article 8 of the Dublin Regulation is consistently invoked when a child applies for international protection in Slovenia. However, the long duration of the Dublin procedure usually results in them absconding from the country before the procedure can be completed and transfer to another Member State implemented; In 2021 none of the unaccompanied children were reunited with a relative in another Member State through the Dublin procedure. Outgoing procedures for adults pursuant to Article 9 and 10 of the Regulation are also used in practice; one such case was registered in 2017. In 2018, 2019,  2020 and 2021 no such case was registered.

Originals or at least copies of documents showing family links (birth certificates, family books) are required by authorities, while DNA analysis was used for the first time in 2019 because the applicant could not provide a copy of his documents. DNA analysis has not been used since then as applicants are required to provide copies of documents showing family links. The application of the family provisions is not refused, even if the asylum seeker fails to indicate the existence of family members in another Member State from the outset of the asylum application. The asylum seeker can invoke the application of family unity criteria within the timeframe for sending the Dublin request to another Member State i.e. three months from the asylum application.

The dependent persons and discretionary clauses

The use of the “sovereignty” clause under Article 17(1) of the Dublin Regulation is not done through a formal procedure and no decision is passed on it; applicants are simply not processed in the Dublin procedure and their case is instead referred by the authorities to the regular procedure. The sovereignty clause was first used in 2014 and has so far been employed in three cases (involving nine persons). The grounds that led to it were a person’s health situation and vulnerability. The sovereignty clause was not used in 2018, 2019,  2020 or 2021.

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

Procedure

After the applicant lodges the application, the case is first examined for a possible application of the Dublin Regulation. In the event that another EU Member State is determined as responsible in accordance with the Dublin Regulation, the Ministry of Interior issues a Dublin decision, with which the procedure in Slovenia is brought to an end (once the decision becomes final) and the person is transferred to the state responsible. If the transfer is not carried out, the Migration Directorate  annuls the Dublin decision and starts processing the application for international protection.[4]

The fingerprints of each applicant are obtained before he or she applies for international protection. Once the applicant lodges the application his or her fingerprints are entered into the Eurodac database. If the person refuses to be fingerprinted, the application can be rejected as manifestly unfounded.[5] However, no cases of this happening in practice have been documented.

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

Individualised guarantees

Individual guarantees are sought together with the “take charge” / “take back” request. Based on the recommendations from the Commission and EASO, individualised guarantees are sought only in case of transfers to Greece.[6]

Transfers

A pending Dublin procedure constitutes the main Grounds for Detention in Slovenia. In  March 2019 the Supreme Court ruled, in accordance with the CJEU judgment C-538/15, Al Chodor, that the provisions of the IPA regarding detention in the Dublin procedure are not in accordance with the Dublin Regulation, since the IPA does not contain the definition of the “risk of absconding” and the objective criteria needed to establish the risk of absconding in an individual case.[7] The Supreme Court, therefore, ruled that detention in the Dublin procedure is not lawful since the IPA does not contain the proper legal ground for detention. Although the provisions of the IPA were not changed  the authorities continued to detain asylum seekers in 2020. This being said, asylum seekers were not detained because of a pending Dublin procedure, but on other grounds defined in the IPA. .

The amendments of the IPA that came into force on 09 November 2021 include new provisions on detention, and the definition of the risk of absconding, which was previously absent. (see Grounds for detention). This enabled the Migration Directorate  to start detaining asylum seekers in the Dublin procedure again. Since 09 November 2021 the Migration Directorate detained 41 asylum seekers,[8] out of which most were detained due to the pending Dublin procedure.

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

Applicants are issued a laissez-passer document for travel.

In the majority of cases when Dublin decisions are issued and become final, outgoing transfers are nevertheless not carried out, mostly due to the absconding of the applicants. In 2019, 27 persons were transferred compared to 976 requests.[9] In 2020, out of 1,432 requests made, only 6 persons were transferred.[10] The low number of transfers in 2020 can be attributed to the travel restrictions put in place due to the COVID-19 pandemic. The suspension of transfers was not officially announced by the authorities. In cases where the transfer was not carried out within 6 months, the Slovenian authorities took on the responsibility of processing the asylum seeker’s application. Before COVID-19, the transfer of asylum seekers who did not abscond was usually carried out successfully. In 2021 the authorities carried out 7 Dublin transfers out of 1351 requests.[11]

Personal interview

According to Article 46(1) IPA, the Migration Directorate conducts a personal interview before taking a decision in the Dublin procedure. The personal interview can be omitted if the applicant has already submitted the relevant information for determining the responsible country and has been given the opportunity by the authorities to submit all such information.[12]  In an Administrative Court judgment from 2019, the Court ruled that the applicant has the right to a hearing even if Slovenia decides to annul the transfer decision to the responsible state and take responsibility for processing the asylum seeker’s application.[13]

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

Appeal

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

In line with the amendments of the IPA, the time limit for judicial review was shortened from 8 calendar days to 3 calendar days.[14] In line with the Constitutional Court’s decision,[15] preclusive time limits have to be reasonably long or they can disproportionately limit the right to judicial review, consequently depriving the individual of his or her rights. The time limit imposed by the amendments infringes the right to effective remedy and the right to judicial review. In practice, refugee counsellors have trouble in lodging the judicial review within the time limit, since they have to obtain the power of attorney, the case file and then lodge the judicial review.

The application has no automatic suspensive effect.[16] However, on the applicant’s request, the court can postpone the execution of the contested decision until a final decision has been issued, if its execution could cause the applicant to suffer damage which would be difficult to repair.[17] In practice, the determining authority does not enforce the decision before the Administrative Court decides on the request for suspensive effect. As long as such practice remains, the situation is not much different from an automatic suspensive effect being prescribed by law.

The IPA does not limit the grounds on which an applicant can challenge the Dublin decision and in principle he or she can challenge it on all grounds of incorrect determination of facts and application of law. This was in contention in the case C-490/16 A.S., where the Slovenian Supreme Court made a preliminary reference to the Court of Justice of the European Union (CJEU), asking inter alia whether judicial review also extends to the application of the irregular entry criterion under Article 13 of the Dublin Regulation. The CJEU judgment confirmed that it does.[18]

The applicant can lodge an appeal against a decision of the Administrative Court to the Supreme Court. This new provision came into force on 09 November 2021 with the new amendments of the IPA.[19]

Legal assistance

The law does not contain any special provisions regarding legal representation of asylum seekers during the Dublin procedure. Legal assistance in the Dublin procedure is provided in the same way as in the Regular Procedure. In the first instance, the legal representation can be provided by the NGO PIC while applicants are appointed a refugee counsellor to represent them in the procedures before the Administrative Court and the Supreme Court.

Suspension of transfers

Dublin transfers to Greece were systematically suspended and have not been implemented since the European Court of Human Rights (ECtHR) judgment in M.S.S. v. Belgium and Greece.[20] However, in 2018, the Dublin Unit started issuing requests to Greece, although no transfers were carried out. In 2021, the Dublin Unit issued 2 “take charge” requests and 150 “take back” requests although no transfers were carried out.[21]

The Constitutional Court has clarified that the authorities are obliged to examine all circumstances relevant from the perspective of the principle of non-refoulement. Due to the absolute nature of the protection afforded by the principle of non-refoulement, the assessment must take into account all the circumstances of the particular case, including the applicant’s personal situation in the transferring country. In this context, it should also be assessed whether the mere removal of an individual to another country due to their health status is contrary to the principle of non-refoulement.[22]

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

The situation of Dublin returnees

There are no obstacles for asylum seekers transferred from another Member State with regard to access to the asylum procedure. As confirmed by the Constitutional Court, Dublin returnees are considered asylum applicants from the moment of their return to Slovenia.[23]

Applicants who abscond from Slovenia while their asylum procedure is still pending at first instance and are returned through a Dublin transfer are allowed to lodge a new asylum application that is not considered a subsequent application. On the other hand, if an applicant absconds upon receiving a rejection decision, it becomes final after the 15-day deadline for lodging a legal remedy, or 3-day deadline in the case of an accelerated procedure, and if the applicant is returned the only option of accessing asylum procedure is through a subsequent application. The same goes if the rejection decision is issued in the applicant’s absence upon absconding.[24] If the applicant absconds after filing for judicial review, the court stops the procedure due to lack of legal interest, the rejection decision becomes final and, if returned, the applicant is again only left with a subsequent application procedure.

Transferred asylum seekers were subjected to a 10 -14-day quarantine upon their arrival after which they lodged the application for international protection. After the quarantine period, they had to wait an additional 6-10 days to lodge the application, due to the backlog of applications. They did not face any additional obstacles in accessing the asylum procedure due to COVID-19.

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

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

[3] Ibid.

[4] Article 51(2) IPA.

[5] Article 52, eighth indent IPA.

[6] Information provided by the Migration Directorate, February 2020.

[7] Supreme Court Decision, X Ips 1/2019 from 13 March 2019, available at: https://bit.ly/39Gd4mV.

[8] Official statistics provided by the Migration Directorate, March 2022.

[9] Official statistics provided by the Migration Directorate, February 2020.

[10] Official statistics provided by the Migration Directorate, January 2021.

[11] Official statistics provided by the Migration Directorate, March 2022.

[12] Article 38(1) IPA.

[13] Administrative Court Judgment, I U 1174/2019/11, 25. July 2019, available at: https://bit.ly/2IDAg9i.

[14] Article 70(2) IPA.

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

[16] Article 70(3) IPA.

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

[18] CJEU, Case C-490/16 A.S. v Republic of Slovenia, Judgment of 26 July 2017.

[19] Article 70(4) IPA.

[20] ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011.

[21] Official statistics provided by the Migration Directorate, March 2022.

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

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

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