03 April 2015
ECRE has published an information note providing guidance to apply the recast Dublin Regulation from the perspective of the fundamental rights of the asylum seekers. The Dublin Regulation determines the Member State responsible for the examination of an asylum application in the EU.
ECRE welcomes the fact that the recast Dublin Regulation clearly stipulates that the best interest of the child must always be a primary consideration when determining which Member State is responsible for examining an application. In ECRE’s view this requires a multi-disciplinary approach following an individual examination of the personal circumstances of each child, and always involving qualified legal representatives.
ECRE remains concerned that the definitions of ‘family members’ in the recast Dublin Regulation are over-restrictive and not in accordance with the case-law of the European Court of Human Rights (ECtHR), which considers family life to be an autonomous concept which extends beyond blood ties. Member States should also take into account the fact that many asylum seekers establish families during flight and assess whether the distinction between pre-flight and post flight families in the recast Regulation is not discriminatory under the European Convention on Human Rights and the EU Charter of Fundamental Rights. ECRE calls on States to utilise the discretionary clause under Article 17, where necessary to ensure respect for family life.
ECRE highlights that the non-application of the new early warning mechanism, conceived to be triggered in the case of particular pressure on national asylum systems, should not be interpreted as being relevant to assess whether there are risks of a violation of asylum seekers’ fundamental rights. ECRE calls upon Member States to comply with the obligation not to send back asylum seekers to another Member State where they risk a violation of their fundamental rights, irrespective of whether the risk arises from systemic deficiencies. In this regard, it is noted that the early warning mechanism has not been applied in some Member States where it could have been appropriate, such as Bulgaria, where UNHCR considered that the situation amounted to systemic deficiencies in the asylum procedure and reception conditions.
ECRE also recommends that the right to effective remedy must be guaranteed not only with respect to decisions to return asylum seekers to another Member State but also with regard to decisions under the recast Dublin Regulation not to return them.
Furthermore, ECRE urges Member States to refrain from detaining asylum seekers under the recast Dublin regulation and to apply alternatives to detention. ECRE reminds Member States that they are prohibited from using detention as a tool to determine more quickly which country is responsible for examining an asylum application.
In the longer term ECRE continues to call for the development of an alternative system for determining which Member State should examine an asylum application. Such an alternative system should ensure genuine responsibility sharing and take into consideration connections between applicants for international protection and particular Member States.