Explanatory Memorandum to COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a third-country national or a stateless person (recast) - EU monitor

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Explanatory Memorandum to COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a third-country national or a stateless person (recast)

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1. CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

The EU is working towards a more sustainable approach to managing migration, both for people who need international protection and for those who move for other reasons. The approach aims to end irregular and dangerous movements and the business model of smugglers, and to replace these with safe and legal ways to the EU for those who need protection. Protection in the region and resettlement from there to the EU should become the model for the future, and best serves the interests and safety of refugees.

However it remains likely that in the short and medium term people will continue to arrive at the EUs external borders. Those who do not claim international protection should be returned. Those who do claim asylum should have their claim processed efficiently, and be assured decent reception facilities and support in the Member State responsible to deal with their applications, whilst that process is ongoing and beyond that if their claims are found to be grounded.

Recent experience has however shown that large-scale uncontrolled arrivals put an excessive strain on the Member States asyl um systems, which has led to an increasing disregard of the rules. This is now starting to be addressed with a view to regaining control of the present situation by applying the current rules on Schengen border management and on asylum, as well as through stepped up cooperation with key third countries in particular Turkey. However the situation has exposed more fundamental weaknesses in the design of our asylum rules which undermine their effectiveness and do not ensure a sustainable sharing of responsibility, which now need to be addressed.

On 6 April 2016, the Commission set out its priorities for improving the Common European Asylum System (CEAS) in its Com municati on 'Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe'.1 The Commission announced that it would progressively work towards reforming the existing Union framework on asylum, to establish a sustainable and fair system for determining the Member State responsible for examining asylum applications, reinforce the Eurodac system, achieve greater convergence in the asylum system, prevent secondary movements, and establish an enhanced mandate for the European Asylum Support Office (EASO). The need for reform has been widely acknowledged, including by the European Parliament2 and the European Council.3

This proposal on the reform of the Dublin III Regulation is part of the first instalment of legislative proposals which will constitute a major reform of the CEAS. This first package also includes a proposal for recast of the Eurodac Regulation and a proposal for establishing a European Union Agency for Asylum. The Eurodac proposal includes the necessary changes to adapt the syste m to the proposed Dublin rules, in line with its primary objective to serve the implementation of the Dublin Regulation. Eurodac shall also become a database for wider immigration purposes, facilitating return and the fight against irregular migration.

COM(2016) 197 final.

See for example European Parliament resolutions of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)); of 10 September 2015 on migration and refugees in Europe (2015/2833(RSP).

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The proposal for a European Union Agency for Asylum aims to improve the implementation and functioning of the CEAS by building on the work of the European Asylum Support Office and further develop it into an Agency which should be responsible for facilitating functioning of the CEAS, for ensuring convergence in the assessment of applications for international protection across the Union, and for monitoring the operational and technical application of Union law.

A second stage of legislative proposals reforming the Asylum Procedures and Qualification Directives, as well as the Reception Conditions Directive will follow, to ensure the full reform of all parts of the EU asylum system, including to avoid the disruption of the Dublin mechanism by abuses and asylum shopping by applicants for and beneficiaries of international protection. In particular, asylum procedures will have to speed up and become more convergent, more uniform rules are needed on the procedures and rights to be offered to beneficiaries of international protection and reception conditions will have to be adapted, to increase as much as possible harmonisation across the Member States.

As set out in its 6 April Communication, the migratory and refugee crisis exposed significant structural weaknesses and shortcomings in the design and implementation of the European asylum system, and of the Dublin rules in particular. The current Dublin system was not designed to ensure a sustainable sharing of responsibility for applicants across the Union. This has led to situations where a limited number of individual Member States had to deal with the vast majority of asylum seekers arriving in the Union, putting the capacities of their asylum systems under strain and leading to some disregard of EU rules. In addition, the effectiveness of the Dublin system is undermined by a set of complex and disputable rules on the determination of responsibility as well as lengthy procedures. In particular, this is the case for the current rules which provide for a shift of responsibility between Member States after a given time. Moreover, lacking clear provisions on applicants' obligations as well as on the consequences for not complying with them, the current system is often prone to abuse by the applicants.

The objectives of the Dublin Regulation – to ensure quick access of asylum applicants to an asylum procedure and the examination of an application in substance by a single, clearly determined, Member State – remain valid. It is clear, however, that the Dublin system must be reformed, both to simplify it and enhance its effectiveness in practice, and to be equal to the task of dealing with situations when Member States' asylum systems are faced with disproportionate pressure.

This proposal is a recast of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person ("the Dublin III Regulation").

In particular, this proposal aims to:

enhance the system's capacity to determine efficiently and effectively a single Member State responsible for examining the application for international protection. In particular, it would remove the cessation of responsibility clauses and significantly shorten the time limits for sending requests, receiving replies and carrying out transfers between Member States;


ensure fair sharing of responsibilities between Member States by complementing the current system with a corrective allocation mechanism. This mechanism would be activated automatically in cases where Member States would have to deal with a disproportionate number of asylum seekers;

discourage abuses and prevent secondary movements of the applicants within the EU, in particular by including clear obligations for applicants to apply in the Member State of first entry and remain in the Member State determined as responsible. This also requires proportionate procedural and material consequences in case of noncompliance with their obligations.

Targeted consultations with the European Parliament and the Member States, including on the basis of the 6 of April Communication, as well as the United Nations High Com missi oner for Refugees (UNCHR) and civil society confirmed divergent views on the nature and extent to which the Dublin Regulation should be reformed4. Against this background, the Commission carefully assessed the arguments brought forward. The Commission came to the conclusion that the current criteria in the Dublin system should be preserved, while supplementing them with a corrective allocation mechanism to relieve Member States under disproportionate pressure. At the same time, the new Dublin scheme will be based on a European reference system from the start of its implementation with an automatically triggered corrective solidarity mechanism as soon as a Member State carries a disproportionate burden.

At the same time, other fundamental changes are introduced in order to discourage abuses and prevent secondary movements of the applicants within the EU.

Consistency

with existing policy provisions in the policy area

The Dublin system is the cornerstone of the Common European Asylum System and deals with the determination of which Member State is responsible for an asylum claim. It operates through the legal and policy instruments in the field of asylum, in particular asylum procedures, standards for the qualification for individuals for international protection, and reception conditions, as well as relocation and resettlement.

Progress is being stalled by the fact that the track record of implementation of EU law in the field of asylum is poor. Ensuring the full and swift implementation by Member States of EU law is a priority. In particular, the Commission has been working over the last years with the Greek authorities to prioritise a normalisation of the situation since Dublin transfers were suspended in 2010. To that end, the Commission addressed a recommendation to Greece on 10 February 20165 on the urgent measures to be taken by Greece in view of the resumption of Dublin transfers.

This proposal is part of a package including proposals reforming other elements of the Dublin system, which will ensure consistency of provisions in this policy area. The proposal for reform of the Eurodac Regulation includes the necessary changes to reflect those proposed in the Dublin Regulation and to assist in better controlling irregular migration. The Commission is also proposing to establish a European Union Agency for Asylum to support the

4 See below under 3.4 'stakeholder consultation'

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functioning of the Common European Asylum System, including of the revised Dublin mechanism.

In response to the crisis situation in Greece and Italy, the Council adopted in September 2015 two relocation decisions6, which will be applied until September 2017. This was a temporary, ad hoc and emergency response to the situation in these two Member States which experienced unprecedented flows of migrants and which should have been relieved of some of the burden in that the responsibility for certain asylum claimants from Italy and Greece is transferred to other Member States. The Commission reported twice on the implementation of

these decisions7.

With a view to designing a structural solution for dealing with such crisis situations, the Commission proposed a crisis relocation mechanism in September 20158. Relocation was proposed to be triggered through a delegated act, which would also determine the number persons to be relocated. This proposal introduces an automatically triggered corrective allocation mechanism. It has therefore a similar objective as the proposal made by the Commission in September 2015 and, depending on the results of the discussions on this proposal, the Commission could consider withdrawing the September proposal.

The proposal also envisages new rules for determining the Member State responsible for examining an application lodged by an unaccompanied minor, namely that— in the absence of family relations the Member State of first application shall be responsible, unless this is not in the best interests of the minor. This rule will allow a quick determination of the Member State responsible and thus allow swift access to the procedure for this vulnerable group of applicants, also in view of the shortened time limits proposed. Given that this rule differs from what the Commission proposed in June 20149, the Commission has the intention to withdraw that proposal, on which it has so far been impossible to reach an agreement.

Consistency with other Union policies

This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration10, which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist of reducing the incentive for irregular migration, securing external borders and saving lives, a strong asylum policy and a new policy on legal migration. This proposal, which further implements the European Agenda on Migration as regards the objective of strengthening the Unions asylum policy should be seen as part of the broader policy at EU level towards building a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for the third country nationals concerned and countries of origin and transit.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

2.

Council Decision 2015/1523 of 14 September 2015 and Council Decision (EU) 2015/1601 of 22


September

COM (2016)165 and COM (2016)222

COM (2015) 450

Com (2014) 382

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7

8

9

10

This proposal recasts Regulation (EU) No 604/2013 and should therefore be adopted on the same legal basis, namely Article 78, second paragraph, point (e) of the T FEU, in accordance with the ordinary legislative procedure.

Variable geometry

The United Kingdom and Ireland are bound by Regulation 604/2013, following the notification of their wish to take part in the adoption and application of that Regulation based on the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the TEU and to the T FEU.

In accordance with the above-mentioned Protocol, the United Kingdom and Ireland may decide to take part in the adoption of this proposal. They also have this option after adoption of the proposal .

Under the Protocol on the position of Denmark, annexe d to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas ). However, given that Denmark applies the current Dublin Regulation, on the basis of an international a gre em ent that it concluded with the EC in 200611, it shall, in accordance with Article 3 of that Agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.

The participation of the United Kingdom, Ireland and Denmark in the arrangements laid down in this proposal recasting Regulation (EU) No 604/2013 will be determined in the course of negotiations in accordance with these Protocols. These Protocols notably allow the United Kingdom and Ireland, but do not require them, to opt into initiatives in the policy area of freedom, security and justice while respecting their operability.

Impact of the proposal on non EU Member States associated to the Dublin system

In parallel to the association of several non-EU Member States to the Schengen acquis, the Union has concluded several agreements associating these countries also to the Dublin/Eurodac acquis:

- the agreement associating Iceland and Norway, concluded in 2001;

- the agreement associating Switzerland, concluded on 28 February 2008;

- the protocol associating Liechten stein, concluded on 7 March 2011.

In order to create rights and obligations between Denmark which as explained above has been associated to the Dublin/Eurodac acquis via an international agreement and the associated countries mentioned above, two other instruments have been concluded between the Union and the associated countries12.

Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention (OJ L66, 8.3.2006,p.38)

Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request

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In accordance with the three above-cited agree m ents, the associated countries shall accept the Dublin/Eurodac acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the European Parliament and the Council. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac acquis, the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise, by unanimity.

Subsidiarity

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.

The proposal streamlines the current Dublin rules and complements these with a new corrective allocation mechanism to put in place a system to address situations when Member States asylum systems are faced with disproportionate pressure.

The aim is to achieve a fair sharing of responsibilities between Member States by relieving a Member State with a disproportionate burden and sharing that burden among the remaining Member States. By definition, this requires EU action. In addition, the proposal aims at ensuring the correct application of the Dublin system in times of crisis and at tackling secondary movements of third country nationals between Member States, issues which are cross-border by nature. It is clear that actions taken by individual Member States cannot satisfactorily reply to the need for a common EU approach to a common problem.

Proportionality

As regards the streamlining of the Dublin rules, the changes proposed are limited to what is necessary to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States admini strations to apply the syste m.

As regards the introduction of a new corrective allocation mechanism, Regulation (EU) No 604/2013 does not provide, in its current form, for tools enabling sufficient responses to

situations of disproportionate pressure on Member States’ asylum systems. The provisions on

the corrective allocation mechanism that the proposal introduces seek to address this gap. These provisions do not go beyond what is necessary to achieve the objective of addressing the situation effectively.

Choice of the instrument

Given that the existing Dublin mechanism was established by means of a Regulation, the same legal instrument is used for streamlining it and complementing it with a corrective allocation mechanism.

24.06.2009, p.

8) and Protocol to the Agreement between the Com munity, Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

1.

consultations


ANDIMPACTASSESSMENTS


Ex-post evaluations/fitness checks of existing legislation

In the European Agenda for Migration, the Commission, while urging the Member States to fully implement the Dublin III Regulation and existing EU asylum acquis, announced the evaluation and possible revision of the Regulation in 2016. In line with this comm it m ent the Commission commissioned external studies on the evaluation of the Dublin system. The

evaluation assessed the effectiveness, efficiency, relevance, consistency and EU added value of the Dublin III Regulation. It examined the extent to which the Regulation addressed its objectives, the wider policy needs of the EU and the needs of the target stakeholders. T he

evaluation included an in-depth study on the practical implementation of the Dublin III Regulation in the Member States.15 The main findings are set out below.

3.1. The relevance of the Dublin III Regulation

The Dublin system is a cornerstone of the EU asylum acquis and its objectives remain valid. An EU instrument for establishing criteria and a mechanism for determining the Member State responsible for examining an application is essential as long as separate national asylum systems exist within the Union. Without this, Member States would have to rely on ad hoc agreements as in pre-Dublin times, which would make the determination of responsibility between Member States extremely difficult. The evaluation concluded that no national or bilateral instrument could provide the same effect overall, which could result in a failure to address applications for international protection falling between national jurisdictions. Mixed views were expressed regarding the actual impact of the Regulation, which should ensure a swift access to the asylum procedures for the applicant and lead to a long-term strategy discouraging multiple applications. This would further provide efficiency to the asylum system by preventing misuse and would reduce the overall costs.

3.2 Implementation of the Regulation

General

The most significant problem highlighted in the evaluation was the lack of consistent and correct implementation across the Member States. It was further concluded that the design of the Dublin III Regulation had a number of shortcomings which made it more difficult to achieve its main objectives. The hierarchy of criteria as set out in the Dublin III Regulation

Evaluation and implementation reports available at: ec.europa.eu/dgs/home-affairs/what-we-do/policies.

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The evaluation was based on desk research, quantitative analysis and consultations with legal/policy advisors in a total of 19 Member States (BE, BG, CH, CY, EL, FR, HR, HU, IT, LT, LV, MT, NL, NO, PL, RO, SE, SI, SK). Information from the other 12 Member States participating in the Dublin III Regulation was not received in time to be included in the report.

15 A broad range of stakeholders were consulted, including: Dublin units in national asylum

administrations, legal/policy advisors, NGOs, lawyers/legal representatives, appeal and review authorities, law enforcement authorities, detention authorities, applicants and/or beneficiaries of international protection. A total of 142 interviews were conducted. Field visits were conducted in 15 Member States (AT, BE, DE, EL, FR, HU, LU, IT, MT, NL, NO, PL, SE, UK, CH), whereas in 16 (BG, CY, CZ, DK, EE, ES, FI, HR, IE, LT, LV, PT, RO,

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does not take the capacity of the Member States into account, nor does it aim for a balance of efforts. The method of allocating responsibility delays access to the asylum procedure. Under the current system applicants may wait up to 10 months (in the case of take back requests) or 11 months (in the case of take charge requests), before the procedure for examining the

claim for international protection starts. This undermines Dublin’s aim to ensure an

applicants swift access to the asylum procedure.

It has also become clear that the Dublin III Regulation was not designed to deal with situations of disproportionate pressure. It does not aim at the objective of a fair sharing of responsibility or to address the disproportionate distribution of applicants across the Member States. These factors have become especially evident in some Member States, which have experienced difficulties in applying the Regulation in this context, with registrations of asylum seekers not always taking place, procedures being delayed and internal capacity insuff icient to deal with the cases in a timely manner.

Procedural guarantees and safeguards

Information to the appl icant about th e Dublin procedure significantly differs. Approximately half of the participating Member States reported that the information provided consists of

“general information”, which may fall short of the requirements stipulated in Article 4 i.

Furthermore, the findings suggest that in a small number of Member States, information may not be provided at all, and if provided it seems to be outdated.

The personal interview is a standard practice when determining responsibility in nearly all Member States, but the lack of capacity in some of the overburdened countries has prevented the authorities from routinely conducting interviews. If interviews are omitted, the applicant will generally be allowed to submit information in other forms. Many Member States reported that interviews were severely delayed, as a result of the current high influx.

The interpretation of the best interests of the child diverges. This has on some occasions led to communication issues and mistrust between the Member States. Furthermore, practical problems have been identified in the process of appointing a representative for the minor, especially as a consequence of the current high influx. T his however constitutes a wider problem for the asylum procedure.

Criteria for determining the responsible Member State and evidence

The criteria most often applied as grounds for transfer were those relating to documentation and entry (Articles 12 and 13), resulting in placing a substantial share of responsibility on Member States at the external border. This has led applicants to avoid being fingerprinted, contributing to secondary movements.

Several Member States indicated that the interpretations of what is considered to be acceptable evidence by the authorities in the receiving country placed an unreasonable burden of proof on the sending country. Eurodac and Visa Information System (VIS) data are accepted as proof by nearly all Member States, and is the evidence most often relied on when determining responsibility. The data obtained through interviews were generally not considered as sufficient evidence. The discretionary provision and provisions on dependent persons (Articles 16 and 17), dealing with humanitarian cases, are infrequently used, with the exception of only a small number of Member States.

The criteria relating to family links were less frequently used, mainly due to the difficulty of tracing family or obtaining evidence of family connections. The Member States greatly differ in respect of the evidence accepted for these criteria, but a main requirement is usually documentary evidence (such as birth or marriage certificate), which is often difficult to produce for the asylum applicant. T he substantial divergence on what is acceptable proof of family connections makes it difficult to determine responsibility, leading to lengthy procedures. This could be a factor in driving secondary movements, with applicants attempting to travel onwards.

aking charge and taking back procedures

The number of take back requests was significantly higher than the number of take charge requests. Between 2008 and 2014 72% of outgoing Dublin requests were take back requests, against 28% of outgoing take charge requests. Similarly, 74% of incoming Dublin requests were take back requests compared with 26% of incoming take charge requests. The

timeframes stipulated for submitting and replying to these requests were mostly complied with by all Member States, but the high inflow of migrant put an increased pressure on the asylum agencies, prolonging the response time for some Member States. This also led to an increase in incomplete requests, which could lead to rejections and disputes. This also

influenced the practice of ‘acceptance by default’, with some countries deliberately failing to

respond to requests by the deadline as a way of handling the large amount of cases.

In 2014, the total number of take charge and take back requests was 84,586 which represents 13% of the total asylum applications made in the EU, which is a decline from previous years. Out of all requests, 33% were rejected by the receiving Member State, which could suggest that the entry into force of the Dublin III Regulation in 2014 has made it harder for the Member States to reach consensus on the responsibility. In 2014, only about a quarter of the total number of accepted take back and take charge requests actually resulted in a physical transfer. These low numbers suggest that there are problems with the practical application of the Dublin III Regulation. However, it could also be partly explained by delays in the transfers, which is not captured in the annual data used in the evaluation. Another important reason for the low rate of transfers, as confirmed by many Member States, is the high rate of absconding during the Dublin procedures, resulting in a shift of responsibility between Member States.

Implementation of transfers

The timeframe for implementing the transfers varied significantly. The efficiency depends on the capacity and resources in the units in charge of implementing transfers, the fact that a separate authority was in charge of the arrangements, the number of cases, the degree of cooperation of the applicant and the knowledge of their whereabouts. One indicated reason for delays was the extension of the time limits as per Article 29 i. Twenty Member States stated that the absconding of the applicant, allowing for a total of 18 months for transfers, was the primary explanation for delays. The practice of detention, reported as often used by 21 of 31 countries, varies considerably in regards to the stage of the procedure: some authorities resort to detention from the start of the Dublin procedure, others only when the transfer request has been accepted by the responsible Member State. These divergent practices create legal uncertainty as well as practical problems. Furthermore, 13 Member States highlighted

that transfers in general lack effectiveness, indicating that secondary movements are ‘often’

observed following a completed transfer.

Appeals

Remedies are available against a transfer decision in all Member States. Member States favour judicia l remedies, most frequently before the administrative courts. In the process of appeals, all Member States have introduced time limits for an applicant to exercise their right to an effective remedy, although the interpretation of what constitutes a reasonable period of

time’ greatly vary, ranging from three to 60 days. If a case is appealed, some Member States

will automatically suspend the transfer, whilst others apply Article 27(3)(c), where this has to be requested by the applicant.

Administrative cooperation

All Member States indicated the frequent use of the secured electronic DubliNet network for exchange of information and informal information channels are only applied in exceptional circumstances. To further facilitate the effective application of the Dublin III Regulation, many Member States have concluded administrative arrangements as referred to in Article 36. However, to date, no Member State has made use of the conciliation procedure as described in Article 37, any disputes being resolved informally.

Early Warning and Preparedness Mec hanism

The Early Warning and Preparedness Mechanism has not been implemented to date. While some Member States argued that the conditions for triggering the mechanism were never fulfilled, others argued that it is difficult to reach a political agreement on triggering the mechanism in the absence of clear criteria and indicators to measure the pressure. This procedure was also considered lengthy and complicated. Alternative support measures had also helped to relieve the pressure and may have obviated the need to trigger the mechanism. The European Asylum and Support Office was used as an example of support that made it unnecessary to activate the mechanism, helping to prevent or manage crises in the field of international protection.

3.3 Achieving the obj ect ives of t he Dublin III Regulation

The main findings of the external study regarding the evaluation of the Dublin III Regulation were as set out below.

To prevent applicants from pursuing multiple applications, thereby reducing

secondary movements

Notwithstanding the aim of reducing secondary movements, multiple asylum applications remain a common problem in the EU. 24% of the applicants in 2014 had already launched previous applications in other Member States, which suggests that the Regulation has had little or no effect on this objective. It was further argued that it may have served inadvertently to increase the incidence of other types of secondary movements, since the national differences in the quality of reception and asylum systems continue to exist and continue to encourage secondary movements.

To ensure an equitable distribution of applicants for and beneficiaries of international protection between the Member States

The Dublin III Regulation has limited impact on the distribution of applicants within the EU, given that net transfers in Dublin procedures are close to zero. When Member States receive and transfer similar numbers of applicants, their incoming and outgoing requests cancel each other out, indicating that there is no or very little redistri buti ve effect from the Dublin III Regulation. This appears to be due to: the hierarchy of criteria, which does not take Member States capacity into account; the disproportionate responsibility placed on Member States at the external border, by mostly applying the criteria of first country of entry; and the low number of actual transfers, which suggests that applicants are able to submit claims where they choose, placing a greater responsibility on more desirable destinations. This is evident from the figures from 2014, where 70% of all first-time asylum applications were submitted in only five Member States.

The reasonable cost in terms of financial and human resources deployed in the implementation of the Dublin III Regulation

The direct and indirect estimated cost of Du bli n-re lated work in 2014 in Europe was approximately EUR 1 billion. The absence of such a mechanism would generate even higher costs for the EU and E E A States, but the evaluation found that the Dublin III Regulation in general lacked efficiency. The legally envisaged time to transfer an applicant is long and the rate of actual transfers small: both of these have a significant financial implication on the indirect costs; and the overall efficiency of the system. In an attempt to counteract absconding, the cost of detention in some Member States is very high. Absconding generates other indirect costs and reduces the efficiency of the system. Absence of transfers and returns of rejected applicants in practice generates high social costs linked to irregular migration. It is estimated that a maximum of 42% of the Dublin applicants not effectively transferred may still be staying as irregular migrants within the EU.

There is a high likelihood that the current syste m will remain unsustainable in the context of the continuing migratory pressure. The effective suspension of Dublin transfers to Greece from 2011 has proved a particularly critical weakness in the system in particular given the large number of migrants arriving in Greece in recent months.

3.4 Stakeholder

consultations

In addition to the external evaluation the Commission concluded targeted consultations with LIBE coordinators of political groups of the European Parliament's Committee on Civil Liberties, Justice and Home affairs, with Member States and other stakeholders.

The coordinators of political groups of the European Parliament's Committee on Civil Liberties, Justice and Home affairs were consulted on basis of a discussion document and preliminary results from the external evaluation of the Dublin Regulation. There was overall broad support for a fundamental reform of the Dublin system and a recognition that the status quo was not sustainable. While some supported having objective criteria to determine responsibility, including in the form of a distribution key, others noted the importance of taking an applicant's preferences/characteristics into account, despite the difficulty in doing so in an objective, fair and workable way.

The Member States were consulted on basis of the same documents. There was agreement that the current Regulation is too complex and over-regulated and thus very difficult for administrations to apply. Changes added under the 2013 Dublin III reform resulted in increased rights for applicants which could be misused to frustrate the entire system. Secondary movements were mentioned as the most pressing implementation problem. The discussion around the need or not to transform Dublin III into a responsibility-sharing instrument, changing its current purely responsibility-allocation nature, confirmed that there are two main views: some Member States called for a permanent system for burden sharing through a distribution key, while others were in favour of keeping and streamlining the current system, including the irregular entry criterion.

There were divergent views on whether the preferences of applicants should be taken into account: While some said that preferences could not be fully ignored as this would almost inevitably result in secondary movements, others strongly advised against, as clear, objective criteria were needed and adding preferences would result in complicated case-by-case assessments. Also, Member States recalled that applicants are seeking international protection/fleeing persecution and that, therefore, they should not be provided with excessive room for choosing the final country of asylum, since the rationale of Dublin is not that of an (economic) migration scheme.

Other stakeholders such as UNHCR and non-governmental organisations working in the area of asylum were also consulted. They agreed that the current Dublin III regulation has important shortcomings as regards its underlying rationale – the irregular entry criterion as default criterion in the first place – and that practice during the last months has shown that a fundamental reform is necessary. The general view was that an applicant's preferences or characteristics should be taken into account for the allocation of a Member State responsible in view of integration perspectives and to reduce secondary movements. To that same end, the family criterion should be expanded. Many underlined the need to make progress towards a level playing field in all Member States, in particular as regards reception conditions and procedures.

3.5 Fundamental rights

This proposal is fully compatible with fundamental rights and general principles of Community as well as international law.

In particular, better informing asylum-seekers about the application of this Regulation and their rights and obligations within it will on the one hand enable them to better defend their rights and on the other hand will contribute to diminish the level of secondary movements as asylum-seekers will be better inclined to comply with the system. The effectiveness of the right to judicial remedy will be increased, by specifying the scope of the appeal and defined a harmonised time limit for taking decisions. The appeal will in addition have automatic suspensive effect.

The right to liberty and freedom of movement will be reinforced by shortening the time limits under which a person may be detained in an exceptional case prescribed under the Regulation and only if it is in line with the principles of necessity and proportionality.

The right to family reunification will be reinforced, in particular by enlarging the scope of the Regulation to include siblings as well as families formed in transit countries.

The rights of unaccompanied minors have also been strengthened through better defining the principle of the best interests of the child and by setting out a mechanism for making a best interests of the child-determination in all circumstances implying the transfer of a minor.

4. BUDGETARYIMPLICATIONS

The total financial resources necessary to support the implementation of this proposal amount to EUR 1828.6 million foreseen for the period 2017-2020. This would cover the transfer costs once the corrective allocation mechanism has been triggered for the benefit of a Member State, the establishment and operation of the IT system for the registration and automatic allocation of asylum applicants, but also support for developing the necessary reception capacity, both as regards infrastructure and the running costs, in particular in those Member States which so far only had to deal with low numbers of asylum applicants.

3.

The financial needs are compatible with the current multiannual financial framework and may entail the use of special instruments as defined in the Council Regulation (EU, Euratom)


No 1311/2013.16

5. DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSAL

The proposal retains the link between responsibility in the field of asylum and the respect by Member States of their obligations in terms of protection of the external border, subject to exceptions designed to protect family unity and the best interests of the child. The current criteria for the allocation of responsibility are essentially preserved, but targeted changes are proposed, notably to strengthen family unity under Dublin by extending the family definition.

The main amendments made intend to on the one hand improve the efficiency of the system, notably by maintaining a stable responsibility of a given Member State for examining an application, once that responsibility has been established. On the other hand, the amendments serve to limit secondary movements, in particular by deleting the rules on shift of responsibility between Member States.

The system is supplemented with a new corrective allocation mechanism, based on a reference key, allowing for adjustments in allocation of applicants in certain circumstances. It therefore means the system can deal with situations when Member States' asylum systems are faced with disproportionate pressure, by ensuring an appropriate system of responsibility sharing between Member States.

I. Streamlining the Dublin Regulation and

improving its efficiency

With the aims of ensuring that the Dublin procedure operates smoothly and in a sustainable way, that it fulf ils the aim of quick access to the examination procedure and to protection for those in need of it, and that secondary movements are discouraged, various modifications are proposed, in particular:

A new obligation is introduced that foresees that an applicant must apply

in the Member State either of first irregular entry or, in case of legal stay, in that Member State. The aim is to ensure an orderly management of flows,

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Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual


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to facilitate the determination of the Member State responsible, and to prevent secondary movements. With this amendment it is clarified that an applicant neither has the right to choose the Member State of application nor the Member State responsible for examining the application. In case of non-compliance with this new obligation by an applicant the Member State must examine the application in an accelerated procedure. In addition, an applicant will only be entitled to material reception rights where he or she is required to be present.

Before the start of the process of determining the Member State responsible, the Regulation introduces an obligation for the Member State of application to check whether the application is inadmissible, on the grounds that the applicant comes from a first country of asylum or a safe third country. If this is the case, the applicant will be returned to that first country or safe third country, and the Member State who made the inadmissibility check will be considered responsible for that application. The Member State of application must also check whether the applicant comes from a safe country of origin or presents a security risk, in which case the Member State of application will be responsible and has to examine the application in accelerated procedure.

The Regulation introduces a rule that once a Member State has examined the application as Member State responsible, it remains responsible also for examining future representations and applications of the given applicant. This strengthens the new rule that only one Member State is and shall remain responsible for examining an application and that the criteria of responsibility shall be applied only once.

The requirement of the cooperation of applicants is enhanced with a view to assuring quick access to status determination procedures, correct functioning of the system and preventing the circumvention of the rules, notably absconding. The Regulation sets out proportionate obligations of the applicant concerning the timely provision of all the elements and information relevant for determining the Member State responsible and also concerning cooperation with the competent authorities of the Member States. It is also explicitly stated that applicants have an obligation to be present and available for the authorities of a relevant Member State and respect the transfer decision. Non-fulfilment of legal obligations set out in the Regulation will have proportionate procedural consequences for the applicant, such as preclusion of accepting information that was unjustifiably submitted too late.

The Regulation enlarges the scope of the information which must be provided to applicants. The personal interview serves to facilitate the process of determining the Member State responsible by helping in gathering all the necessary information. However, it should not result in delaying the procedure when the applicant has absconded or when sufficient information has already been provided.

The rule on hierarchy of criteria for determining responsibility states explicitly that the criteria shall be applied only once. This means that, as of the second application, the readmission rules (take back) will apply without exceptions. The rule that criteria shall be determined on the basis of the situation obtaining when the applicant first lodged his or her application with a Member State, now applies to all criteria, including those regarding family


members and minors. A clear cut-off deadline for providing relevant information will enable a quick assessment and decision.

The definition of family members is extended in two ways: by i including the sibling or siblings of an applicant and by i including family relations which were formed after leaving the country of origin but before arrival on the territory of the Member State. Siblings are a rather targeted but important category where the possibility to prove and check the family relation is relatively easy and thus the potential for abuse is low. The extension to cover families formed during transit reflects recent migratory phenomena such as longer stays outside the origin country before reaching the EU, such as in refugee camps. These targeted extensions of the family definition are expected to reduce the risk of irregular movements or absconding for persons covered by the extended rules.

A number of modifications are proposed to streamline the responsibility criteria set out in Articles 14, 15, and 16. In Article 14 the criteria of responsibility regarding visas and residence documents have been clarified. In Article 15 on irregular entry, the clause envisaging cessation of responsibility after 12 months from irregular entry as well as the complicated and difficult to prove clause in relation to illegal stay were deleted. In relation to the criterion of visa waived entry, the exception concerning subsequent entries to a Member States for which the need for an entry visa is waived is also deleted, in line with the approach that the Member State of first entry should, as a rule, be responsible and in view of preventing unjustified secondary movements after entry. The discretionary clause is made narrower, to ensure that it is only used on humanitarian grounds in relation to wider family.

The amended Regulation establishes shorter time limits for the different steps of the Dublin procedure, in order to speed up the determination procedure and to grant swifter access of an applicant to the asylum procedure. This concerns time limits for submitting and replying to a take charge request, making a take back notification, and taking a transfer decision. As a result of shortening the time limits, the urgency procedure was removed.

Expiry of deadlines will no longer result in a shift of responsibility between Member States (with the exception of the deadline for replying to take charge requests). Such shifts appear to have encouraged circumventing the rules and obstructing the procedure. The new rule should instead be that once a Member State was determined responsible, that Member State shall remain responsible.

Take back requests have been transformed into simple take back notifications, given that it is clear which the responsible Member State is and there will be no longer be any scope for shift of responsibility. Such notifications do not require a reply, but instead an immediate confirmation of receipt. This will be a significant tool to address secondary movements, considering the current prevalence of take back rather than take charge requests.

Related to this are procedural consequences for the examination of the application after a take back transfer. The rules have been modified as concerns how the Member States responsible should examine the application after taking


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the person back, with a view to dissuading and sanctioning secondary movements


An obligation for the Member State responsible has been added to take back a beneficiary of international protection, who made an application or is irregularly present in another Member State. This obligation will give Member States the necessary legal tool to enforce transfers back, which is important to li m it secondary movements.

The rules on remedies have been adapted in order to considerably speed up and harmonise the appeal process. In addition to establishing specific, short time limits, making use of a remedy automatically suspends the transfer. A new remedy is introduced for cases where no transfer decision is taken, and the applicant claims that a family member or, in the case of minors, also a relative, is legally present in another Member State.

The conciliation procedure as a dispute resolution mechanism has not been formally used since it was foreseen in the 1990 Dublin Convention (albeit in a slightly different form), and seems therefore unnecessary and should be abolished.

The objectives of the existing early warning and preparedness mechanism are proposed to be taken over by the new European Union Agency for Asylum, as set out notably in Chapter 5 on monitoring and assessment and Chapter 6 on operational and technical assistance in the proposal on a European Union Agency for Asylum. T hat mechanism has therefore been deleted from the Dublin Regulation.

A network of Dublin units is set up and facilitated by the European Union Agency for Asylum to enhance practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance.

In relation to unaccompanied minors, the proposal clarifies that the Member State where the minor first lodged his or her application for international protection will be responsible, unless it is demonstrated that this is not in the best interests of the minor. This rule will allow a quick determination of the Member State responsible and thus allow swift access to the procedure for this vulnerable group of applicants, also in view of the shortened time limits proposed.

The provision on guarantees for unaccompanied minors is adapted to make the best interests assessment more operational. Thus, before transferring an unaccompanied minor to another Member State, the transferring Member State shall make sure that that Member State will take the necessary measures under the asylum procedures and reception conditions Directives without delay. It is also stipulated that any decision to transfer an unaccompanied minor must be preceded by an assessment of his/her best interests, to be done swiftly by qualified staff.

II. Corrective allocation mechanism

The recast Regulation establishes a corrective mechanism in order to ensure a fair sharing of responsibility between Member States and a swift access of applicants to procedures for granting international protection, in situations when a Member State is confronted with a

disproportionate number of applications for international protection for which it is the Member State responsible under the Regulation. It should mitigate any significant disproporti onal ity in the share of asylum applications between Member States resulting from the application of the responsibility criteria.

Registration and monitoring system

An automated system is established that will allow for the registration of all applications and the monitoring of each Member States share in all applications. The Unions Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) will be responsible for the development and technical operation of the system. As soon as an application is lodged, the Member State shall register that application in the automated system, which will record each application under a unique application number. As soon as a Member State has been determined to be the Member State responsible, this will also be included in the system. The automated system will also indicate, in real time, the total number of applications lodged in the EU and the number per Member State, as well as after a Member State responsible has been determ ined the number of applications that each Member State must examine as Member State responsible and the share which this represents, compared to other Member States. The system will also indicate the numbers of persons effectively resettled by each Member State.

Triggering the corrective allocation mechanism

The number of applications for which a given Member State is responsible and the numbers of persons effectively resettled by a Member State are the basis for the calculation of the respective shares. This includes applications for which a Member State would be responsible under the inadmissibility check, safe country of origin and security grounds. Calculations take place on a rolling one year basis, i.e. at any moment, based on the number of new applications for which a Member State has been designated as responsible in the system over the past year and the number of persons effectively resettled. The system continuously calculates the percentage of applications for which each Member State has been designated as responsible and compares with the reference percentage based on a key. This reference key is based on two criteria with equal 50% weighting, the size of the population and the total GDP of a Member State.

The application of the corrective allocation for the benefit of a Member State is triggered automatically where the number of applications for international protection for which a Member State is responsible exceeds 150% of the figure identified in the reference key.

Allocation of appl icatio ns through a reference key and cessation

As of the triggering of the mechanism, all new applications lodged in the Member State experiencing the disproportionate pressure, after the admissibility check but before the Dublin check, are allocated to those Member States with a number of applications for which they are the Member State responsible which is below the number identified in the reference key; the allocations are shared proportionately between those Member States, based on the reference key. No further such allocations will be made to a Member State once the number of applications for which it is responsible exceeds the number identified in the reference key.

The allocation continues as long as the Member State experiencing the disproportionate pressure continues to be above 150% of its reference number. Family members to whom the allocation procedure applies will be allocated to the same Member State. The corrective allocation mechanism should not lead to the separation of family members.

Financial solidarity

A Member State of allocation may decide to temporarily not take part in the corrective mechanism fora twelve months-period. The Member State would enter this information in the automated system and notify the other Member States, the Commission and the European Agency for Asylum. Thereafter the applicants that would have been allocated to that Member State are allocated to the other Member States instead. The Member State which temporarily does not take part in the corrective allocation must make a solidarity contribution of EUR 250,000 per applicant to the Member States that were determined as responsible for examining those applications. The Commission should adopt an implementing act, specifying the practical modalities for the implementation of the solidarity contribution mechanism. The European Union Agency for Asylum will monitor and report to the Commission on a yearly basis on the application of the financial solidarity mechanism.

Procedure in the transferring Member State and the Member State of allocation

The Member State which benefits form the corrective mechanism shall transfer the applicant to the Member State of allocation and shall also transmit the applicant's fingerprints in order to allow security verification in the Member State of allocation. This aims to prevent any impediments to allocation as experienced during the implementation of the relocation decisions. Following the transfer, the Member State of allocation will do the Dublin check to verify whether there are primary criteria, such as family in another Member State, apply in the case of the applicant. Where this should be the case, the applicant will be transferred to the Member State which would consequently be responsible.

Review clause

It is foreseen that the Commission will review the functioning of the corrective allocation mechanism 18 months after entry into force of this Regulation and from then on annually, in order to assess whether the corrective allocation mechanism is meeting its objective of ensuring a fair sharing of responsibility between Member States and of relieving disproportionate pressure on certain Member States.

The Commission will in particular verify that the threshold for the triggering and cessation of the corrective allocation effectively ensure a fair sharing of responsibility between the Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation.


* 604/2013