2.2.2017   

EN

Official Journal of the European Union

C 34/144

Rapporteur:

Mr José Antonio MORENO DÍAZ

1.1.

The EESC considers it essential to carry out an efficient and effective reform of the Common European Asylum System (CEAS) and improve the legal means of accessing the European Union based on the principle of respecting persecuted people’s human rights.

1.2.

To that end, a genuine common and obligatory system for all Member States should be proposed in order to harmonise national legislation or — failing this — to introduce at the very least a common system for the mutual recognition of resolutions on asylum between all the EU Member States. This would make a genuine Common European Asylum System possible.

1.3.

In any case, the EESC approves of the proposed objective to improve and speed up the determination procedures in the interest of better efficiency, but believes that protective provisions should be clarified and included on procedural issues, individual treatment of applications, maintenance of discretionary clauses, maintenance of the deadline for the cessation of obligation for a Member State to assume responsibility, the rights of applicants and the limitation of the corrective allocation mechanism.

1.4.

Care must be taken to ensure that the provisions proposed in the regulation are consistent with existing provisions in this area and related measures that the EC intends to roll out as part of the fundamental transformation of the CEAS, and that they are consistent with other EU policies.

1.5.

All Member States should be responsible for providing applicants with detailed and up-to-date information regarding the procedures under the Dublin system, in line with the requirements set out in Article 4.

1.6.

The principle of proportionality should be assured so that the system is sustainable in practice, with regard to applicants’ quick access to the asylum procedure and the capacity of Member States’ administrations to apply the system.

2.1.

On 6 April 2016, the Commission published a communication which outlined the shortcomings in the formulation and application of the Common European Asylum System, in particular the ‘Dublin’ provisions, and proposed five priority areas for improving the situation.

2.2.

With a view to establishing a system which is fairer and more efficient and sustainable, the Commission proposes to reform the Common European Asylum System by revising the current Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection.

2.3.

The Commission notes that the Dublin system was not set up to guarantee that responsibilities with regard to applicants for international protection across the whole of the EU were distributed sustainably, fairly and efficiently. The so-called ‘Dublin System’ has not worked properly or uniformly: the last few years have demonstrated that in cases of massive migratory flows, a small number of Member States have to examine the majority of applications for international protection, which on occasion has led to growing breaches of EU asylum standards.

2.4.

To mitigate these shortcomings, the Commission proposes that the regulation be modified to include the following objectives:

3.1.1.

Minors: The proposed reform preserves the established considerations but only for unaccompanied minors who have applied for international protection.

3.1.2.

Family members: The proposal broadens the definition of members in two respects: it extends to siblings and takes into consideration families formed before arrival in the Member State, but not necessarily in the country of origin as defined in Dublin Regulation III (DR III). Both considerations are of utmost important, in particular with regard to those hardship cases that occur when siblings are not considered to be ‘family members’, which in many cases affects unaccompanied minors whose only family connections in a Member State are their siblings.

3.1.3.

Residence or visa documents: The proposal maintains the Member State’s responsibility to assess applications for international protection when issuing such documents, although it also introduces considerations in an effort to clarify the responsibility criteria.

3.1.4.

Irregular entry through a Member State: The proposal removes the provisions on the cessation of responsibility 12 months after the date of the unauthorised border crossing.

3.1.5.

Discretionary clauses: The proposal limits the Member States’ room for manoeuvre and makes it possible for them to assume responsibility for an application for international protection for which they are not responsible only on the basis of family relations which are not taken into account in the definition of members of the family unit.

3.1.6.

Regarding dependent persons, no modifications have been put forward in the proposal. Therefore, if an applicant is dependent on assistance from children, siblings or parents who reside legally in one of the Member States owing to pregnancy, recent child-birth, serious illness, serious disability or old age, or in cases where the abovementioned persons are dependent on assistance from the applicant, the Member States will always bring them together or group them with the applicant if there were ties in the country of origin and the persons in question can provide the abovementioned assistance and declare so in writing.

3.2.1.

The aim of the proposed reform of the Dublin Regulation is to establish a fairer and more sustainable system by simplifying the procedure and increasing its effectiveness, although the modifications introduced are not always geared towards achieving these objectives.

Article 3 of the proposed reform introduces analysis of the admissibility criteria for an application for international protection before the Member State responsible has been determined, without assessing the existence of family in another Member State or the needs of minors.

The admissibility criteria which can be assessed in advance are: safe third country, first country of asylum, safe country of origin, and the indeterminate legal concept of danger to security.

The proposal introduces changes to deadlines which will reduce them significantly, and speeds up readmission procedures.

3.2.2.

The reform removes the circumstances in which responsibility ceases that are laid down in the current Article 19 (if the applicant voluntarily leaves the EU for more than three months or has been expelled). This implies that the same Member State will be responsible for any application submitted at any time, even if the applicant has returned to their country of origin for an extended period of time, their personal and familial circumstances have changed in the interim or the conditions in the Member State in question have altered substantially.

3.3.1.

The right to information: Article 6(1) reinforces the right to information on the part of applicants for international protection who are subject to the process determining which Member State is responsible, and sets out the information that must be provided.

3.3.2.

Right to an effective remedy: Article 27 of the reform stipulates that the applicant must be notified in writing of the decision to transfer them to the Member State responsible without delay. This notification also informs them that the decision can be appealed. Article 28 guarantees the suspensive effect of appeals against decisions to transfer applicants for international protection, and establishes deadlines for the review procedure, although these are too short (only seven days are given to lodge an appeal).

3.3.3.

Right to freedom of movement and detention of applicants subject to the process of determining the Member State responsible for examining an application: Article 29 of the proposal halves the period for procedures in cases where the person applying is being detained. It also reduces from six to four weeks the time in which the transfer must be made, or in the opposite case, the time in which the person must be released.

3.4.1.

The proposal expressly introduces the obligations of applicants for international protection, who must:

3.4.2.

In cases of non-compliance, Article 5 lays down disproportionate procedural and reception consequences which are not in line with the standards in the current directives on asylum procedures (Directive 2013/32/EU) and on reception (Directive 2013/33/EU), and with the Charter of Fundamental Rights of the EU:

4.3.1.

The EESC does not agree with limiting this clause only to cases of family connections that differ from the definition of family members, as it is essential to take into account the fact that problems can arise in a Member State which are not only quantitative — owing to the number of applicants for international protection — but also qualitative. These problems affect issues related to the effective application of Directive 2013/32/EU on common procedures for granting and withdrawing international protection with regard to access to the asylum procedure for applicants for international protection, information and advice, procedural guarantees and special procedures for people who require them. In addition, the recast Directive 2013/33/EU on reception conditions contains common standards to guarantee comparable living conditions in all the Member States to applicants for international protection and guarantee that their fundamental rights are upheld.

4.3.2.

Circumstances can arise in which a Member State is not in a position to guarantee the provisions contained in the directives in question. The wording of DR III must consequently be preserved with regard to the decision of any Member State to assess an application for international protection which is presented to it even when the assessment is not that state’s responsibility.

4.3.3.

Furthermore, it should be taken into account that many applicants for international protection are seriously ill and/or disabled, and do not have family ties in any Member State: however, due to their particular circumstances, these applicants cannot, for medical reasons, be transferred to the Member State responsible for examining their application, which establishes the relationship of dependency with the Member State in which they applied for international protection. Such cases must be included in the new proposed draft of the discretionary clauses.

4.3.4.

The assumption of responsibility on humanitarian or cultural grounds must be preserved in order to guarantee assistance to people applying for international protection who are in particularly vulnerable situations, in accordance with Directive 2013/32/EU, and to guarantee differentiated treatment in accordance with the assessment of specific circumstances.

4.4.1.

Assessing admissibility without prior analysis of the existence of family members in another Member State or the needs of minors, when this results in an application for international protection being rejected, may be at odds with the right to family life recognised under Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention on Human Rights.

4.4.2.

Automatically applying the concepts of safe third country, first country of asylum, safe country of origin and the legal concept of endangering security may lead to situations of discrimination on the basis of nationality or migratory routes. In addition, in the case of safe country of origin and security risk, Article 3(3) stipulates that an accelerated procedure should apply. This accelerated procedure may not under any circumstances cause the procedural guarantees to be undermined due to the speed of deadlines. Nor can it result in a non-individual assessment of the application for international protection, as this is prohibited under Article 10(3)(a) of Directive 2013/32/EU.

4.4.3.

Article 33 of the proposal does not introduce any improvement with regard to exchanges of information between Member States on vulnerable cases, medical situations and other individual cases for the applicants who are to be transferred, in spite of the fact this is one of the biggest shortcomings observed in the practical application of the Dublin system.

4.4.4.

The provision regarding the cessation of responsibility in cases where the applicant voluntarily leaves the EU for more than three months, or has been expelled, may lead to situations in which family ties formed in the country of origin after the original application for international protection in the EU are not taken into account, or in which the reception and procedural conditions which were fulfilled during the first application are not guaranteed in the Member State responsible during the second application.

4.5.1.

Regarding the right to information, the provision on the transmission of information via an information brochure does not take into account the fact that in the majority of Member States this brochure only contains general information, in terms which are barely comprehensible to applicants. This information must always be provided in the interview.

4.5.2.

With regard to the right to an effective remedy, we feel that this remedy should not be limited to the three cases specified, given that access to a fair trial would be restricted in the following situations:

4.5.3.

Regarding the right to freedom of movement and the possible detention of applicants subject to the process of determining the Member State responsible, the limitation upon time in detention (two weeks) does not introduce new provisions on exceptional cases in which detention is to be ordered. Given the divergence in state practices that the Commission itself has observed, clear and specific criteria should be established on the exceptional circumstance of detention and the assessment of the necessity and proportionality of the measure.

4.6.1.

Using such a high figure, 150 % of the capacity of the Member State in question, could compromise the reception and procedural conditions of applicants for international protection who are already in the Member State until the figure is reached. If, according to the criteria, reception capacity has been established, it seems logical to activate the mechanism when that capacity is exceeded rather than wait until it reaches 150 %. Furthermore, to make this mechanism effective, allocation should apply to every person who has the right to seek asylum, regardless of country of origin.

4.6.2.

The mechanism is applied prior to determining which Member State is responsible, which is carried out subsequently by the Member State to which the applicants have been allocated. This implies that, after being transferred from the benefitting Member State to the Member State of allocation, the applicant for international protection may be transferred again to a third Member State where he or she has family members, which would result in a lack of efficiency in the system and a greater delay in accessing the procedure to determine the status of international protection.

4.6.3.

In addition, because it is automatic, the mechanism does not take into account the individual circumstances of applicants for international protection or special needs, for example vulnerability, which may make transfer to the Member State of allocation inadvisable.

4.6.4.

The corrective mechanism takes no account of applicants who arrived before the reform entered into force, and applicants who were rejected before the application of the criteria for determining the Member State responsible, under Article 3, are excluded from allocation, as are applicants who arrived in a Member State before 150 % of reception capacity was reached. The above points may be obstacles to the ultimate aim of the mechanism and have a very limited effect on the distribution of responsibility to assess applications and on reception.

4.6.5.

The fact that Member States may choose not to take part in the corrective mechanism by paying a certain amount for each applicant for international protection who is not allocated to their territory may lead to instances of discrimination by allowing Member States to choose which applicants to accept or reject on the basis of religion, ethnicity or nationality.