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Dublin statistics: 2019

Source: Migration Office

Slovenia issued 976 outgoing requests in 2019, compared to 722 in 2018. Out of 976 outgoing requests 179 were “take charge” and 797 were “take back” requests. Outgoing requests were based on the following criteria:

Source: Migration Office

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 2019, the most frequently used criteria for both outgoing and incoming requests was Article 18(1)(b) of the Regulation. Out of 976 outgoing requests made in 2019, 680 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 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 2017 only one unaccompanied child was reunited through the Dublin procedure with a relative in another Member State. In 2018 none of the unaccompanied children were reunited with a relative in another Member State through the Dublin procedure and in 2019 four children were reunited 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 and 2019 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. 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 health situation and vulnerability. The sovereignty clause was not used in 2018 and 2019.

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.

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.[4] However, no cases of this happening in practice have been documented.

The information about the Dublin procedure and legal representation during the procedure is provided by PIC.

Individualised guarantees

Individualised guarantees that the asylum seeker will have adequate reception conditions upon transfer in practice, in line with the ECtHR’s ruling in Tarakhel v Switzerland, are sought in case of transfers to Italy. This is done in relation to vulnerable categories of persons and families – with the aim of ensuring family unity and reception conditions of families with children. Individual guarantees are sought together with the “take charge” / “take back” request. Based on the recommendations from the Commission and EASO, individualised guarantees are also sought in case of transfers to Greece.[5]

Transfers

A pending Dublin procedure constitutes the main Grounds for Detention in Slovenia. However, 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.[6] 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.

Since the provisions of the IPA regarding detention have not been amended, asylum seekers in Slovenia cannot be detained in the Dublin procedure or on any other ground that requires the risk of absconding to be established. Following the judgment of the Supreme Court asylum seekers in the Dublin procedure are, therefore, not detained in Slovenia pending their Dublin procedure.

In case 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 Office, 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. In practice all transfers are started early in the morning.

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. In 2018, 31 persons were successfully transferred from Slovenia compared to 722 requests. In cases when the applicant does not abscond, the transfer is usually carried out successfully.[7]

Personal interview

According to Article 46(1) IPA, the Migration Office 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.^[8]  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 [9]

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

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. The application needs to be lodged within 8 days,[10] and has no automatic suspensive effect.[11] 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.[12] In practice, the determining authority does not enforce the decision before the Administrative Court decides on the request for suspensive effect and the court regularly approves such requests. 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.[13]

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: Legal Assistance. In the first instance, the legal representation is provided by the NGO PIC while applicants are appointed a refugee counsellor to represent them in the procedures before the Administrative 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.[14] However, in 2018, the Dublin Unit started issuing requests to Greece, although no transfers were carried out. In 2019, the Dublin Unit issued 131 “take charge” requests and 351 “take back” requests although no transfers were carried out.[15]

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.[16]

In cases when transfers are suspended, Slovenia 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.[17]

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 8-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.[18] 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.