The UK left the EU on 31 January 2020 but has remained subject to the Dublin Regulation during the Transition Period (TP). The UK issued guidance explaining how to process cases where a Dublin Regulation responsibility request was made by a Dublin State to the UK prior to the end of the TP at 23h 00 on 31 December 2020 but either no decision has been made in relation to that request or a decision has been made but the transfer has not taken place before the end of the TP.
Cases introduced after the Transition period can be treated under the new inadmissibility rules on safe third countries. “The rules allow an inadmissibility decision to be taken on the basis of a person’s earlier presence in or connection to a safe third country, even if that particular country will not immediately agree to the persons return.” The guidance on inadmissibility of asylum claims explains that: “the safe countries most likely to be identified in asylum claims will be the UK’s near neighbours in the EU. Other EU member states, the wider EEA countries (Iceland, Liechtenstein and Norway) and Switzerland may also be identified, as may country such as the United States of America, Canada, Australia and New Zealand” (see further under Admissibility procedure).
Dublin statistics: 2020
|Outgoing procedure||Incoming procedure|
Source: Home Office, available at: https://bit.ly/39sFbWD.
In February 2018, the government published up-to-date Dublin statistics for the first time, having previously referred enquirers to Eurostat figures, even as recently as in responses to parliamentary questions in January 2018. These statistics are produced annually.
The UK issued outgoing 8,502 requests and received 2,331on the following grounds in 2020:
|Outgoing and incoming Dublin requests by criterion: 2020|
|Dublin III Regulation criterion||Outgoing||Incoming|
|Family provisions: Articles 8-11||106||933|
|Regular entry: Articles 12 and 14||72||184|
|Irregular entry: Article 13||824||9|
|Dependent persons: Article 16||9|
|Humanitarian clause: Article 17(2)||2||724|
|“Take back”: Articles 18 and 20(5)||7,498||472|
|Total outgoing and incoming requests||8,502||2,331|
Source: Home Office.
The Home Office finally issued guidance in November 2017 on the operation of the Dublin III Regulation, following a consultation period with key stakeholders in September 2016. It has been amended several times during 2020 initially to reflect changes in approach to DNA evidence, subsequently to change guidance relating to the transfer of unaccompanied children. As the UK is no longer part of the Dublin Regulation new guidance was issued to inform Home Office staff how to deal with the remaining requests made prior to 31 December 2020.
The majority of requests to third countries were based on Eurodac hits, as these are objective and easy to identify for the authorities. If the applicant wished to be transferred out of the UK, a referral was made to the Third Country Unit (TCU) and the Home Office would not normally object. However, if the applicant wished to have his or her claim substantively considered in the UK, it was the obligation of the applicant or their legal representative to submit documentary evidence such as status papers, passports, asylum interview records etc. of family members, as well as representations explaining why the UK should consider the claim.
The family criteria
The Upper Tribunal detailed in the case of MS the state’s duty to “act reasonably” and to take “reasonable steps” in discharging the duty to investigate the basis of a “take charge” request sent by another country. This includes the option of DNA testing in the sending country or, if not, in the UK.
DNA tests were not routinely carried out. This would only be necessary if there is no other way to prove relationship. If the applicant fails to declare he or she has family members in the UK at an early stage, normally the Home Office attempt to proceed with removal. However, a judicial review challenge can be brought if there is a good reason for the lack of disclosure; for example the applicant only found out later the whereabouts of his family.
With regard to Article 9, the Upper Tribunal clarified in April 2018 that a family member acquiring citizenship in the UK after having received international protection remains a “family member who is a beneficiary of international protection” for the purposes of the Dublin III Regulation.
Statistics show that in 2020, 724 requests were made for the UK to take in an applicant under the humanitarian clause, while 321 people were transferred under this article in the same period. Two requests but no transfers were made by the UK under that clause.
In addition to the rise in transfers out of the UK some unaccompanied children were reunited with family members. The government drew attention to this during the same period as publicising the returns of asylum seekers under the Dublin Regulation.
During 2020 there were many efforts by campaigners to force the government to negotiate ‘replacements’ for the family unity clauses of Dublin III. The UK government published draft agreements, which were not reciprocated by the EU. The two proposals related to general returns agreement and a specific measure to allow unaccompanied children to unite with family members. The UK has indicated it will attempt to negotiate returns agreements with individual EU member states. The revised inadmissibility guidance advises that if a person can be removed to another country, including a Dublin III state, the claim should be refused as inadmissible in the UK.
During the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, the government agreed to publish the existing routes for family reunification in the UK. This was fulfilled on 31st December with a document outlining existing routes (most not specific to refugee or people seeking asylum).The government also committed to a review of safe and legal routes to the UK; in February 2021 it fulfilled its obligation to update parliament with routes available to reunite families, which was a reiteration of the December 2020 document.
The First List is set out in the statute and consists of EU member states (except Croatia), Iceland, Norway and Switzerland. There is no reference to the Dublin III Regulation, but the legislation states that the listed countries are to be treated as places in which a person will not be at risk of persecution contrary to the Refugee Convention, and from which they will not be sent in breach of the Refugee Convention or European Convention on Human Rights (ECHR).
Whether the person can be removed to one of these countries is determined in the first instance by whether they can be shown to have travelled through that country. During 2020 the UK had access to the Eurodac system but from 2021 access is limited to transfer requests made prior to the beginning of 2021.
Enquiries as to the route of travel are also a routine part of the screening process in all cases. The asylum seeker’s account of their route of travel and other evidence of the person having lived in or travelled through a country will influence whether the application is referred to the Third Country Unit.
On the Second List, see the section on Admissibility Procedure.
The UK did not formally recognise any requirement to request individual guarantees of adequate reception facilities. The judgment of the High Court in MS  EWHC 1095 (Admin), referring to the ECtHR case of Tarakhel, maintained that there was no such general requirement where children were not involved, even where applicants have experienced trauma and have mental health difficulties. This did not mean that guarantees are never sought in individual cases, since officers in UKVI may do so, but it meant that the UK did not seek guarantees as a matter of routine practice or policy.
The Court of Appeal judgment on the case, referred to as NA (Sudan), broadly maintained this position. It decided that Tarakhel did not extend to other vulnerable persons and was only ever intended to apply to families with children. And the two appellants in NA (Sudan) were extremely vulnerable, suffering a range of health problems including severe depressive disorder, and the risk of suicide, with one appellant suffering a history of rape and sexual abuse in Italy.
In coming to this conclusion, the Court relied on the decision of several cases decided since Tarakhel involving individuals suffering from serious PTSD, health problems, and the risk of suicide. In some, children were involved, and it decided that general, rather than specific, assurances were sufficient, representing a further rollback of Tarakhel.
In line with the Supreme Court’s ruling in EM (Eritrea), the Court of Appeal reaffirmed the fundamental question as being whether, in assessing all the circumstances of an individual’s case, substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to treatment meeting the Article 3 threshold. But the starting point is always going to be the presumption, labelled as a ‘significant evidential presumption’ by the Court, that Member States will comply with their obligations. The Court decided in the case of Italy that the presumption was not rebutted, taking the opportunity to remind us all that: ‘the situation in Italy is in no way comparable to that in Greece and that a general ban on returns to Italy cannot be justified’.
Once the EU Member State or Schengen Associated State took or was deemed to take responsibility for examining the asylum application on the basis of the Dublin III Regulation, the claim was refused as inadmissible on third country grounds without its substance being considered in the UK.
Regulations laid in 2017 provided a list of criteria to consider prior to deciding to detain but give wide discretion e.g. whether there are reasonable grounds to believe that a person is unlikely to return voluntarily to any other participating State determined to be responsible for consideration of their application for international protection under the Dublin III Regulation.
The Home Office was not able to provide figures on the average duration of the Dublin procedure in recent parliamentary questions.. Anecdotal evidence from ngos and legal reps is that particularly during the period September to November transfers of people who had arrived in small boats were processed very quickly after arrival, with minimal checks conducted to ascertain whether or not transfer is appropriate.
No personal interview took place specifically relating to the Dublin procedure.
Information obtained in the screening interview, particularly about route of travel, is used to make a decision that the case should be referred to the Third Country Unit. The standard information read out from the screening form includes the following:
“It is possible that the United Kingdom may not be the state responsible for considering your asylum application. You will be informed of any application or decision to transfer your case to another country.”
The screening process was criticised and legally challenged in 2020 after it was revealed that some questions were not being asked of asylum seekers; the omitted questions related to the identification of characteristics that may have resulted in them not being transferred under the Dublin Regulation. An order in relation to the challenge forced the Home Office to ensure these questions would be asked.
There was no appeal on asylum grounds against a decision that a person may be returned to another country on the First List – i.e. through the Dublin III Regulation, and no appeal against a decision in the Dublin procedure could be made on the grounds that the asylum seeker would be sent to another country in breach of their rights under the ECHR or in breach of the Refugee Convention. The one ground of appeal available against a Dublin removal (i.e. a removal to a First List country) was that the person’s ECHR rights would be breached in the receiving country. A human rights appeal of this kind may only be brought in the UK if the Home Office does not certify that the human rights claim is clearly unfounded. The Home Office, however, is required to certify that it is clearly unfounded unless there is evidence to the contrary. The two Dublin states that fall outside of the First List are Croatia and Liechtenstein; in these cases if an appeal is made under the ECHR as outlined above, the case must be discussed with a senior caseworker to establish if it is appropriate to certify as clearly unfounded.
In cases where an appeal is available, an out of country appeal must be brought within 28 calendar days (where the human rights appeal is certified clearly unfounded); an in-country appeal (where the human rights appeal is not certified) must be brought within 14 days. There are very few appeals of this kind. Normally any challenge to removal based on breach of human rights in the receiving country is made by judicial review application challenging the Secretary of State’s certificate that the human rights claim is unfounded. The result is that the only suspensive appeal against a Dublin removal would be the rare case of a human rights claim, which is not certified by the Home Office as clearly unfounded. Otherwise, the decision to remove under the Dublin Regulation can only be challenged by judicial review.
On the Second List, see section on Admissibility Procedure.
With regard to judicial review against the refusal to accept a “take charge” request, the Upper Tribunal held in 2018 that the principle of fairness requires the applicant to be given an opportunity to know the ‘gist’ of what is submitted against him or her in respect of the application of the Dublin criteria. Therefore in judicial review against the rejection of a “take charge” request by the UK, it is for the court or tribunal to decide whether the Dublin criteria have been correctly applied.
Before a Dublin certificate was issued, an asylum seeker had the same opportunity as any other asylum seeker to obtain access to free legal representation. They were affected by the limited resources and the lack of incentive for legal representatives to advise before the screening interview (see Regular Procedure: Legal Assistance). Once the Dublin decision was issued they were likely to be detained. If they already had a legal representative that person could continue to represent them. If not, they could, again subject to resources, obtain access to representation in detention (see section on Legal Assistance for Review of Detention). There were no special restrictions on legal aid in Dublin cases (see section on Regular Procedure: Legal Assistance) and judicial review was funded by legal aid, although only if the merits were considered strong, and if the Court granted permission for the case to go ahead. In practice that is likely to restrict any legal challenge.
Suspension of transfers
Greece: Transfers to Greece were generally suspended as a matter of practice following the European Court on Human Rights (ECtHR) judgment in M.S.S. v. Belgium and Greece, and in anticipation of the Court of Justice of the European Union (CJEU) decision in NS. This was an executive decision applying to all potential transfers to Greece, and is kept under review in conjunction with the European Asylum Support Office (EASO) and UNHCR. However, decisions can still be made to return asylum seekers to Greece under the Dublin procedure, even if they are not implemented. There is no automatic legal mechanism to prevent such returns actually being carried out. Challenges must be made in individual cases, and practitioners say that some returns to Greece have been made since the decisions in M.S.S. v. Belgium and Greece.
Hungary: In the case of Ibrahimi and Abasi, two Iranians challenged their removal to Hungary on the basis that they were at risk of refoulement, referred to in the case as ‘chain refoulement’ i.e. along a succession of unsafe countries including Serbia, Macedonia, Greece and Turkey. The High Court, in its ruling of 5 August 2016, referred to AIDA and UNHCR reports in its judgment and criticised the UK government for its “broad and sweeping generalisations about presumptions of compliance”. Transfers are still being suspended.
Italy: In the NA (Sudan) ruling of 1 November 2016, the Court of Appeal upheld a transfer to Italy on the basis that no risk of treatment contrary to Article 3 ECHR was demonstrated. The High Court has also dismissed appeals challenging transfers to Italy earlier in the year. In SM, however, the Upper Tribunal found that the circumstances before it, relating to a vulnerable person, were “markedly different” from established High Court case law on transfers to Italy.
Bulgaria: The High Court found in Khaled (No 1) that the deficiencies of the Bulgarian asylum system were not such as to warrant a suspension of Dublin transfers. In its assessment, the Court took into consideration elements such as the fact that UNHCR has not issued any position relating to returns to Bulgaria. Despite the Court of Appeal’s dismissal of the appeal in HK (Iraq), all Dublin transfers to Bulgaria were suspended until 15 July 2018, stayed behind a case known as JA (Iraq), heard in June 2018. Transfers have not resumed since then.
Austria: In Abdulkadir and Mohammed, the High Court decided on 28 June 2016 that a transfer to Austria was lawful, on the ground that there was no evidence of ‘systemic failure’ in the Austrian legal system to amount to an Article 3 ECHR violation or infringe upon Article 18 of the EU Charter. Although transfers have resumed only three people were transferred to Austria in 2019.
The UK does not automatically assume responsibility for examining asylum applications where transfers are suspended. If discussions with the receiving country become protracted so that it appears there is no realistic prospect of the transfer taking place, the asylum seeker may be released from detention. Once released from detention in these circumstances, asylum seekers may be granted accommodation and cash support. An asylum seeker who is the subject of a Dublin decision qualifies for reception conditions on the same conditions as those in the regular procedure.
The situation of Dublin returnees
There are no reported issues regarding the situation of adults returned to the UK under the Dublin regulation. Children reunited with family under Article 8 are not considered to be unaccompanied even if they are not dependants on a family member’s asylum claim. Concerns have been raised about the support they receive and the difficulties arising from them being part of families e.g. many do not qualify for legal aid and are not routinely assisted thought the asylum procedure.
 Home Office, Dublin III Regulation, April 2019, available at: https://bit.ly/2wBbuE0.
 Dublin Regulation guidance v 4 August 2020, available at: https://bit.ly/3ojHQZh
 Requests made to the UK under the Dublin III Regulation prior to the end of the transition period, available at: https://bit.ly/39hMp1S
 Upper Tribunal, MS v Secretary of State for the Home Department  UKUT 9 (IAC), 19 July 2018.
 Upper Tribunal, HA v Secretary of State for the Home Department  UKUT 297 (IAC), 19 April 2018.
 Government news story https://bit.ly/2Yd1U53
 A summary of these proposals and of commitments made to review the routes available to families is provided in the House of Commons library note.
 Legislation available at: https://bit.ly/3oiCJsf
 Overview of family reunion options in the Immigration Rules: see: https://bit.ly/36fdReH
 Statement on gov.uk, available at: https://bit.ly/3qqmp9P
 Schedule 3 Part 2, First List AITOCA.
 Inadmissibility guidance December 2020, see: https://bit.ly/3qUdPki
 Court of Appeal, NA (Sudan) v Secretary of State for the Home Department  EWCA Civ 1060, paras 107 and 156.
 Ibid, para 110.
 UK Legislation, The transfer for determination of an application for international protection (detention) regulations 2017, available at: https://bit.ly/2RG35q2.
 DA ad Ors v Secretary of State for the Home Department, 13 November 2020, available at: https://bit.ly/3ol8IIq
 Schedule 3, Part 2 AITOCA.
 Para 5, Schedule 3 Part 2 AITOCA.
 Upper Tribunal, MS v Secretary of State for the Home Department  UKUT 9 (IAC), 19 July 2018.
 The ticked box concerning appeals refers to judicial review since there is no appeal.
 ECtHR, M.S.S. v Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011.
 Ibid, para 16.
 High Court, R (BG) v Secretary of State for the Home Department  EWHC 786 (Admin), 12 April 2016, available at: http://bit.ly/1NooJV8; R (Adam) v Secretary of State for the Home Department  EWHC 1352 (Admin), 9 June 2016, available at: http://bit.ly/2jQTq07.
 Upper Tribunal, R (SM) v Secretary of State for the Home Department (Dublin Regulation – Italy)  UKUT 429 (IAC), 4 December 2018.
 Khaled (No 1), para 94.
 Information provided by ASAP. See also CJEU, Case 179/11 Cimade & GISTI v Ministre de l’interieur, 27 September 2012.