Dublin procedure

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General

Dublin statistics: 2021

Source: Ministerio del Interior, ‘Avance de datos de protección internacional, aplicación del Reglamento de Dublín y reconocimiento del estatuto de apátrida. Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2021’, 2022, avalable at: https://bit.ly/3vWg9gD.

Requests refers to both sent and accepted requests; it should to be noted that available statistics do not specify how many transfers were actually carried out, but only the number of accepted requests.

The OAR rarely applies the Dublin Regulation. It only issued 10 outgoing requests in 2016, 11 in 2017,7 in 2018^[1], and 120 in 2019.[2] Thus, the Dublin Regulation usually concerns incoming requests and transfers to Spain. In 2019, the country received a total of 17,086 requests and 1,917 transfers, while only 5 outgoing transfers were carried out.[3] Figures on the number of outgoing requests in 2021 were not available at the time of writing.

In August 2018, Germany and Spain concluded a bilateral agreement entitled “Administrative arrangement on cooperation when refusing entry to persons seeking protection in the context of temporary checks at the internal German-Austrian border”, which entered into force on 11 August 2018.^[4] The agreement, implemented by the two countries’ police authorities, foresees that persons who have lodged an application for international protection in Spain and are apprehended at the German-Austrian border are to be refused entry and returned to Spain within 48 hours. Given that it concerns transfers of asylum seekers outside a Dublin procedure, it infringes the Dublin Regulation.^[5] While in 2018 no cases of persons returned to Spain under the agreement were witnessed, the author is aware that at least two asylum seekers were returned to Spain in 2019. No other cases seem to have been reported in 2020 and 2021.

Application of the Dublin criteria

Given the limited use of the Dublin Regulation by the OAR, there is not sufficient practice to draw upon for an analysis of the way in which criteria are applied.

The OAR has edited two leaflets in three languages (Spanish, English and French). One leaflet provides information about the Dublin Regulation for applicants for international protection pursuant to article 4 of Regulation (EU) No 604/2013.[6] The other leaflet contains information for applicants for international protection found in a Dublin procedure, pursuant to article 4 of Regulation (EU) No 604/2013.[7] The OAR’s edited leaflet providing information to asylum seekers on the Dublin Regulation states that having family members living in a country is one of the factors that will be taken into account for establishing the Member State responsible for the processing of the asylum application.

In general, family unity criteria are applied in practice. For unmarried couples, it is even sufficient to provide – in the absence of a legal document – an official declaration of the partners demonstrating their relationship.

The discretionary clauses

In Spain the sovereignty clause is applied on rare occasions, for vulnerable people or to guarantee family unity. According to the European Commission’s evaluation of March 2016, Spain also undertakes responsibility for unaccompanied children, even where there is evidence that the Dublin family criteria could apply.^[8] However, the sovereignty clause was not applied in 2017.^[9] There is no information available on the application of the sovereignty clause in 2021.

Concerning the humanitarian clause, it appears that no case has met the relevant criteria on the basis of Article 17(2) of the Regulation. In 2016 and 2017, the OAR has not applied the dependent persons and humanitarian clauses.^[10] There is no information available on the application of the humanitarian clause in 2021.

No particular procedure is applied for vulnerable persons.

Procedure

The Asylum Act does not provide specific elements regarding the Dublin procedure. In practice, it consists of an admissibility assessment with the same characteristics and guarantees foreseen for other applicants. The only difference is the length of the process. In the Dublin procedure, the phase is 1 month longer in accordance with the Dublin Regulation. There are no legal provisions regulating this at national level, however.

Asylum seekers are systematically fingerprinted and checked in Eurodac in practice.

The OAR has also produced and published a leaflet with relevant information on the Dublin procedure. However, the leaflet is only available in Spanish, English and French.[11]

Individualised guarantees

There are very few outgoing requests made by Spain. No specific guarantees have applied to these cases.^[12]

Transfers

According to the OAR an average duration of the Dublin procedure is not available for 2017. The OAR implemented 2 transfers in 2016, 2 in 2017, 2 in 2018^[13], and 5 in 2019.[14] Figures on the number of transfers in 2021 are not available at the time of writing.[15]

Personal interview

The same rules as in the Regular Procedure apply. According to the authorities, the interview is never omitted.^[16] In practice, during the registration of the application, the OAR official or the Police ask the person questions about identity and travel route.

Appeal

The same rules as in the Regular Procedure apply.

Legal assistance

The same rules as in the Regular Procedure apply.

Suspension of transfers

Transfers of asylum seekers to Greece under the Dublin Regulation have been suspended since 2014. Spain makes very rare use of the Dublin procedure in practice.

The situation of Dublin returnees

The number of incoming procedures to Spain is far higher than the number of outgoing procedures. Spain received 11,070 requests and 671 transfers in 2018.^[17] In 2021, Spain received 6,332 requests, mainly from France (3,457) Germany (1,488) and the Netherlands (576).[18]

The Dublin Unit does not provide guarantees to other Member States prior to incoming transfers, although upon arrival of an asylum seeker through a Dublin transfer, the OAR coordinates with the Ministry of Inclusion, Social Security and Migration, responsible for reception.^[19] Nevertheless, civil society organisations have witnessed particular difficulties with regard to victims of trafficking returning to Spain under the Dublin system, mainly from France. These are due to different factors, i.e. the fact that victims of trafficking are not effectively identified as such, the lack of an effective mechanism to register and identify trafficked persons before return, as well as to identify victims among Dublin returnees once they arrive in Spain. The lack of coordination among the Spanish competent authorities (Dublin Unit, OAR, Ministry of Inclusion, Social Security and Migration in charge of reception) is another factor.

In recent years, including in 2019 and 2020, there have been reports of Dublin returnees not being able to access reception conditions due to a lack of places in asylum reception facilities (see Reception Conditions: Criteria and Restrictions). This has resulted in a homelessness and destitution in certain cases. In a series of rulings, the Superior Court (Tribunal Superior de Justicia, TSJ) of Madrid condemned the Spanish Government for denying reception to asylum seekers returned to Spain within the Dublin procedure.[20] For this purpose, the Ministry of Labour, Migration and Social Security issued an instruction establishing that asylum seekers shall not be excluded from the reception system if they left voluntarily Spain to reach another EU country.[21]

The organisation “Neighbours Coordinator” (Coordinadora de Barrios) has been supporting Dublin returnees in Spain since 2015. During the summer of 2020, they supported and documented at least 15 cases of Dublin returnees in Madrid that were not able to access reception as a result of a lack of available places, thus resulting in homelessness.[22] The NGO also reported that the situation worsened during the first months of the COVID-19 pandemic, when the capacity of shelters was reduced in order to comply with physical distancing and quarantine measures. This issue persisted in Spain throughout the year and as of the end of October 2020, there were around 8,000 asylum seekers waiting for a place in the reception system.[23] The media reported similar issues that affected asylum seekers transferred back from the United Kingdom to Spain, as 11 Syrian asylum seekers had to wait 8 hours at the Madrid Airport without any information on how to access reception conditions.[24]

While Dublin returnees face important obstacles in accessing the reception system, they may also face obstacles in re-accessing the asylum procedure given the persistent general deficiencies of the asylum system described throughout this report. The OAR prioritises their registration appointment for the purpose of lodging an asylum application. If their previous asylum claim has been discontinued, they have to apply again for asylum. However, that claim is not considered a subsequent application.

[1] Information provided by OAR, 28 February 2017; 2 March 2018; 8 March 2019.

[2] OAR, Oficina de Asilo y Refugio, ‘Asilo en cifras 2019’, July 2020, available at: https://bit.ly/2PlG4eg, 62.

[3] Ibidem, 61.

[4] The agreement is available at: https://bit.ly/2G2lZ7E.

[5] See e.g. ECRE, Bilateral agreements: Implementing or bypassing the Dublin Regulation?, December 2018, available at: https://bit.ly/2rvGNur.

[6] Oficina de Asilo y Refugio (OAR), ‘Information about the Dublin Regulation for applicants for international protection pursuant to article 4 of Regulation (EU) No 604/2013’, available at: https://bit.ly/3q9vu6I.

[7] Oficina de Asilo y Refugio (OAR), ‘Information for applicants for international protection found in a Dublin procedure, pursuant to article 4 of Regulation (EU) No 604/2013, available at: https://bit.ly/3sEJPtI.

[8] European Commission, Evaluation of the implementation of the Dublin III Regulation, March 2016, 20.

[9] Information provided by OAR, 2 March 2018.

[10] Information provided by OAR, 28 February 2017; 2 March 2018.

[11] Oficina de Asilo y Refugio (OAR), Información para los solicitantes de protección internacional sobre el reglamento de Dublín de conformidad con el artículo 4 del Reglamento (UE) nº 604/2013, available at: https://cutt.ly/We9RJSn.

[12] Information provided by OAR, 20 August 2017.

[13] Information provided by OAR, 28 February 2017; 2 March 2018; 8 March 2019.

[14] OAR, ‘Asilo en cifras 2019’, July 2020, available at: https://bit.ly/2PlG4eg, 62.

[15] It has to be noted that Public data just refer to requests received, those accepted and those refused. See: Ministerio del Interior, ‘AVANCE de datos de protección internacional, aplicación del Reglamento de Dublín y reconocimiento del estatuto de apátrida. Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2021’, 2022, available at: https://bit.ly/3vWg9gD.

[16] European Commission, Evaluation of the implementation of the Dublin III Regulation, March 2016, 12.

[17] Information provided by OAR, 8 March 2019.

[18] Ministerio del Interior, ‘AVANCE de datos de protección internacional, aplicación del Reglamento de Dublín y reconocimiento del estatuto de apátrida. Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2021’, available at: https://bit.ly/3vWg9gD.

[19] Information provided by OAR, 20 August 2017.

[20] El Diario, ‘La Justicia obliga al Gobierno a readmitir en el sistema de acogida a los refugiados devueltos desde otros países europeos’, 22 January 2019, available in Spanish at: https://bit.ly/2HwBFAQ.

[21] La Vanguardia, ‘Los solicitantes de asilo que abandonen voluntariamente España no serán excluidos del sistema de protección’, 22 January 2019, available in Spanish at: https://bit.ly/2MoPeRC.

[22] Information provided by Coordinadora de Barrios, 22 January 2021.

[23] El País, España mantiene 8.000 solicitantes de asilo a la espera de una plaza de acogida, 7 October 2020, available in Spanish at: https://bit.ly/3iIsfkB.

[24] El Salto Diario, ‘Solicitantes de asilo devueltos por Gran Bretaña son abandonados en Barajas’, 8 September 2020, available in Spanish at: https://bit.ly/3umnlPT.