REPORT on the implementation of the Dublin III Regulation

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

on the implementation of the Dublin III Regulation

(2019/2206(INI))

The European Parliament,

– having regard to Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU),

– having regard to Article 80 of the TFEU, on the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States,

– having regard to Articles 1, 2, 3, 4, 18, 19 and 47 of the Charter of Fundamental Rights of the European Union,

– having regard to Articles 2, 3, 5, 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),

– having regard to Article 14 of the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948,

– having regard to the UN Global Compact on Refugees,

– having regard to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva Convention),

– having regard to Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 on 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 (recast), known as the Dublin III Regulation[22],

– having regard to Council Decisions (EU) 2015/1523 of 14 September 2015[23] and (EU) 2015/1601 of 22 September 2015[24] establishing provisional measures in the area of international protection for the benefit of Italy and of Greece,

– having regard to the Commission proposal to the European Parliament and the Council (COM(2016)0270) to reform the Dublin III Regulation,

– having regard to the negotiating mandate adopted by the Committee on Civil Liberties, Justice and Home Affairs on 19 October 2017, which was approved in Plenary on 16 November 2017, and confirmed by the Conference of Presidents on 17 October 2019,

– having regard to its resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to Migration[25],

– having regard to the judgements of the Court of Justice of the European Union related to Regulation (EU) No 604/2013, in particular C-695/15 PPU Mirza (ECLI:EU: C:2016 :188), C-63/15 Ghezelbash (Grand Chamber) (*) (ECLI:EU:C:2016:409), C-155/15, Karim (ECLI:EU:C:2016:410), C-578/16 PPU C.K. and others (*) (ECLI:EU:C:2017:127), C-528/15 Al Chodor (ECLI:EU:C:2017:213), C-36/17 Ahmed (Order) (ECLI:EU:C:2017:273), C-490/16 A.S. (Grand Chamber) (ECLI:EU:C:2017 :585), C-646/16 Jafari (Grand Chamber) (*) (ECLI:EU:C:207:586), C-670/16 Mengesteab (Grand Chamber) (ECLI:EU:C:2017:587), C-60/16 Khir Amayri, ECLI:EU:C:2017:675, C-201/16 Shiri, (ECLI:EU:C:2017:805), C-360/16 Hasan (ECLI:EU:C:2018:35), C-647/16 Hassan (ECLI:EU:C:2018:368), C-213/17 X (ECLI:EU:C:2018:538), C-56/17 Fathi (ECLI:EU:C:2018:803), C-47/17 X (Grand Chamber) (ECLI:EU:C:2018:900), C-661/17 M.A. and others (Grand Chamber) (*) (ECLI:EU:C:2019:53), C-163/17 Jawo (Grand Chamber) (*) (ECLI:EU:C:2019:218), C-582/17 H. (Grand Chamber) (*) ECLI:EU:C:2019:280, and C-715/17, C-718/17 and C-719/17 Commission v Poland, Hungary and the Czech Republic,

– having regard to the judgements of the European Court of Human Rights related to Regulation (EU) No 604/2013, and in particular Sharifi v. Austria of 5 December 2013 (Chamber judgment), Mohammadi v. Austria of 3 July 2014 (Chamber judgment), Sharifi and Others v. Italy and Greece of 21 October 2014 (Chamber judgment), and Tarakhel v. Switzerland of 4 November 2014 (Grand Chamber judgment), and ECtHR - M.S.S. v Belgium and Greece (GC), Application No. 30696/09, Judgement of 21 November 2011, related to Regulation (EC) No 343/2003 of 18 February 2003 (Dublin II),

– having regard to the Commission’s European Agenda on Migration of 13 May 2015 (COM(2015)0240),

– having regard to the so-called Malta Declaration of September 2019,

– having regard to the study by the United Nations High Commissioner for Refugees of August 2017 entitled ‘Left in Limbo’, on the implementation of the Dublin III Regulation,

– having regard to the evaluation of the Dublin III Regulation of 2015 and the evaluation of the implementation of the Dublin III Regulation of 2016, carried out on behalf of the Commission by ICF International,

– having regard to the European Court of Auditors’ Special Report 2019/24 of November 2019 entitled ‘Asylum, relocation and return of migrants: time to step up action to address disparities between objectives and results’,

– having regard to the Commission communication entitled ‘COVID-19: Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement’ (2020/C 126/02),

– having regard to the report of the European Asylum Support Office of 2 June 2020 on COVID-19 emergency measures in asylum and reception systems,

– having regard to the report entitled ‘Annual Report on the Situation of Asylum in the European Union’ of the European Asylum Support Office (EASO) of June 2020,

– having regard to the implementation assessment by the European Parliament Research Service (EPRS) of the Dublin Regulation of January 2019, drawn up by Dr Amandine Scherrer of the Ex-Post Evaluation Unit of Parliament’s Directorate for Impact Assessment and European Added Value (first part) and by the research team of the European Council on Refugees and Exiles (ECRE), at the request of the Ex-Post Evaluation Unit (second part),

– having regard to other studies commissioned by the European Parliament, in particular the EPRS’s implementation appraisal of the Dublin Regulation and asylum procedures in Europe by Gertrud Malmersjo and Milan Remáč of 2016, the study of the Policy Department for Citizens’ Rights and Constitutional Affairs (Directorate-General for Internal Policies) on the reform of the Dublin III Regulation by Francesco Maiani of June 2016, the EPRS study ‘The Cost of Non-Europe in Asylum Policy’ by Wouter van Ballegooij and Cecilia Navarra of October 2018, and the EPRS study on the reform of the Dublin system by Anja Radjenovic of March 2019,

– having regard to the hearing of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) held on 19 February 2020,

– having regard to the replies by Member State Parliaments on their work on the Dublin III Regulation provided through the automated European Centre for Parliamentary Research and Documentation system,

– having regard to the answer provided by Germany to a list of five questions sent by the LIBE Chair and the rapporteur to all national authorities involved in the Dublin procedure,

– having regard to the fact-finding journeys by the rapporteur to Bochum (Germany), Ter Apel (Netherlands), Bucharest (Romania), and Lampedusa (Italy),

– having regard to Rule 54 of its Rules of Procedure, as well as to Article 1(1)(e) and Annex 3 of the decision of the Conference of Presidents of 12 December 2002 on the procedure for granting authorisation to draw up own-initiative reports,

– having regard to the letter from the Committee on Women’s Rights and Gender Equality,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0245/2020),

A. whereas 1 393 920 asylum seekers applied for international protection in EU+ countries in 2015 and 1 292 740 in 2016, a fourfold increase compared to 2012 (373 375 applications) and 2013 (464 515); whereas the number of applications for international protection in EU+ countries rose again between 2018 (665 920) and 2019 (738 425), equivalent to 0.13 % of the total population of the EU in 2019;

B. whereas children account for almost half of the asylum requests filed in the EU, and about 17 700 unaccompanied minors lodged an application for international protection in 2019; whereas 86 % of them were boys, and 90 % were aged between 14 and 18;

C. whereas a Member State that issues a visa to a third-country national is responsible for examining the application for international protection according to Article 12 of the Dublin III Regulation; whereas, according to Article 14 of the Dublin III Regulation, the application of a third country national or a stateless person who entered the territory of a Member State granting a visa waiver shall be examined by this Member State;

D. whereas there were 145 000 decisions on Dublin requests in 2019; whereas the acceptance rate for decisions on Dublin requests was 62 % in 2019;

E. whereas one-third of Member States hosted 90 % of asylum seekers between 2008 and 2017;

F. whereas the criteria for establishing the responsibility of a Member State for an asylum application include, in hierarchical order, the family unit, the issuance of residence permits or visas, irregular entry or stay, and visa-waived entry; whereas, if none of these criteria apply, the Member State in which an asylum application was first made becomes the Member State responsible under Article 3(2); whereas, as a consequence of the disproportionate use of Article 13, according to which it is the responsibility of the Member State of first irregular entry to examine an asylum application, responsibilities are not distributed fairly among the Member States; whereas several ‘first-entry’ Member States in the Mediterranean, namely Greece, Italy, Malta, Cyprus and Spain, received a large proportion of first time applications, in particular during the 2015-16 crisis;

G. whereas in 2018, Germany (82.8 million inhabitants, 18,6 % of total EU population) recorded the largest number of applications (184 180, or 28 % of total applications, equivalent to 0.22 % of its population), followed by France (66.9 million inhabitants, 15 % of total EU population) with 120 425 applications (19 % of total applications, equivalent to 0 18% of its population), Greece (10.74 million inhabitants, 2.4 % of total EU population) with 66 695 applications (11 % of total applications, 0.62 % of its population), Italy (60.48 million inhabitants, 13.6 % of total EU population) with 59 950 applications (10 % of total applications, 0.01 % of its population), and Spain (46.66 million inhabitants, 10.49 % of total EU population) with 52 700 applications (9 % of total applications, and 0.11 % of its population);

H. whereas between 2016 and 2019, Germany and France issued by far the most Dublin requests (68 % of the EU total), while Spain, Estonia, Lithuania, Latvia, Slovakia, Bulgaria, Poland and Czech Republic issued few requests; whereas Spain issued almost no Dublin requests, despite a large and growing number of asylum applications; whereas there are significant differences between countries, with 54.6 % of transfers carried out from Greece, 42.2 % from Sweden, 11.2 % from Germany, 6.7 % from France, and 1.6 % from Italy between 2016 and 2019; whereas there is a significant information gap for a number of countries;

I. whereas the Dublin III Regulation is based on the core assumption that asylum seekers are afforded equal rights across Member States, and that each claim gets a fair examination, wherever the claim is lodged in the EU; whereas this is far from being a reality;

J. whereas Member States have made only very limited use of the dependent persons clause (Article 16) or the humanitarian and discretionary (Article 17) clause in the Regulation; whereas these clauses provide reasonable solutions for family reunification or relocations, including following disembarkations;

K. whereas in most Dublin procedures the provisions on the hierarchy of criteria and the deadlines established are not properly implemented, and transfers are not carried out; whereas in situations involving children and families, these shortcomings are particularly harmful to the best interests of the child and the right of asylum seekers to family reunification;

L. whereas data and studies on the implementation of the Dublin III Regulation highlight routine disregard for family provisions and incorrect application of the principle of the best interests of the child; whereas, for instance, in 2018, the family unit criterion was invoked in just 5 % of ‘take charge’ requests in France (out of 12 000) and in 3.7 % in Germany (out of 17 500), with even lower figures in Belgium, Sweden, Switzerland; underlines that in contrast Greece issued 79.3 % of its ‘take charge’ requests on the basis of the family unity criterion in 2018; whereas applications for family reunification are less frequently accepted (48 % of cases), compared to the average rate of acceptance for all procedures (67.6 %); whereas effective implementation of Articles 16 and 17 of the Regulation might ensure the effectiveness of asylum seekers’ right to family life and family unity;

M. whereas there have been significant shortcomings in the implementation of the Dublin III Regulation, including during the high number of arrivals in 2015 and the COVID-19 pandemic, undermining trust between Member States and the right to international protection, and leading to violations of fundamental rights; whereas the Dublin III rules have proven to be unsuited to dealing with substantial influxes of migrants, resulting in a system that places excessive responsibility and burdens upon a few Member States;

N. whereas the temporary solidarity mechanism for search and rescue in the Mediterranean agreed in the Malta Declaration, and signed on 23 September 2019 by Germany, France, Italy and Malta, was valid for a period of at least six months; whereas no other Member State joined this ad hoc agreement;

O. whereas the preventive action provision (Article 33) has never been used;

P. whereas Article 28 of the Dublin III Regulation allows detention as an exceptional measure ‘to secure transfer procedures’ if there is a ‘significant risk’ of the applicant absconding; whereas this definition remains unclear and its interpretation varies between Member State;

Q. whereas there is lack of compliance on procedural guarantees and safeguards for asylum seekers, especially children; whereas the length of the procedures and the lack of predictable outcomes coupled with poor reception conditions and social precariousness have impacts on the well-being of asylum-seekers, who in many cases have undergone traumatic experiences back home and/or on their way to the EU;

R. whereas the implementation of the Dublin III Regulation is closely linked to the implementation of other European asylum and migration policy files; whereas, in particular, flaws in the implementation of the recast Asylum Procedures Directive (2013/32/EU), the recast Reception Directive (2013/33/EU) and the recast Qualification Directive (2011/95/EU) have had an impact on the implementation of the Dublin III Regulation; whereas the European Commission should do more to ensure Member States comply with these Directives, including through infringement procedures;

S. whereas some of these flaws are inherent to the design of the Dublin Regulation and cannot be solved through better implementation alone;

T. whereas information gaps prevent a comprehensive evaluation of the implementation of the Dublin III Regulation; whereas statistical information is not systematically and consistently provided by Member States, and not with the same level of detail or frequency; whereas key information gaps cover grounds for requests, duration of procedures, resources, withdrawn applications, failed transfers, appeals processes and detention;

U. whereas on 6 November 2017 Parliament adopted a legislative Resolution on the Dublin IV recast proposal by a two-thirds majority;

Incorporating the principle of solidarity into the Common European Asylum System

1. Considers that the current Dublin III Regulation imposes a disproportionate responsibility on a minority of Member States, in particular when high numbers of arrivals occur; considers that owing to their geographical location the first country of entry criterion in the Dublin III Regulation puts an unprecedented and disproportionate burden on frontline countries in terms of registration and reception of asylum seekers; points out that the Dublin III Regulation, as designed and implemented, has failed to guarantee its main objective, namely swiftly determining the Member State responsible for an asylum application, and thus to ensure a fair distribution of responsibility between Member States, and effective and swift access to asylum procedures;

2. Stresses that the introduction of hotspots combined with the temporary relocation programme proposed by the Commission in 2015 was intended to facilitate the management of asylum applications when applicants enter EU territory, and was a pragmatic approach that levels out the flaws in the Dublin III Regulation that were becoming apparent at that time; recalls, further, the contribution of EU agencies such as EASO and Frontex to supporting Member States facing excessive burdens in the implementation of the asylum acquis, and stresses the need to improve cooperation between these agencies;

3. Stresses that the inappropriate application of the hierarchy of criteria, in particular the excessive use of the first country of entry criterion and the ineffective execution of transfers, has increased the disproportionate responsibility borne by certain Member States, especially frontline Member States; takes the view that the EU therefore needs a sustainable solidarity mechanism which establishes fair rules for the allocation of responsibility between Member States in accordance with article 80 of the TFEU, and in full respect of the fundamental right to safety and the protection of asylum seekers;

4. Considers it essential to provide more resources and capabilities to frontline Member States, for instance via EASO, as long as Dublin is not reformed;

5. Recalls that the right to asylum is a fundamental right; stresses that the asylum procedure serves to examine applications and grant international protection to applicants who qualify, while providing for a swift and fair decision for those who do not;

6. Notes that, according to article 24(4) of the Dublin III Regulation, Member States may either request to take back a person or carry out a return procedure in the case of persons whose application for international protection has been rejected by a final decision in a Member State; stresses that, in the context of the application of article 24(4), the return of persons who do not qualify for international protection, especially on the basis of voluntary compliance, could help the functioning of EU migration policies;

7. Welcomes the Council Decisions on relocation of 2015 and 2016 that were adopted as an urgent solidarity measure; expresses its disappointment at the Member States’ unfulfilled commitments to solidarity and responsibility sharing, while acknowledging the positive contribution of some Member States; recalls that the European Commission did not follow Parliament’s call in its resolution of 18 May 2017 for a proposal to extend the relocation measures until the adoption of the reform of the Dublin III Regulation; stresses that ad hoc agreements on relocation are not a substitute for a harmonised and sustainable Common European Asylum System (CEAS);

8. Deplores the fact that the Council, unlike Parliament, did not adopt a position on the Dublin IV recast proposal, and therefore blocked efforts to reform the Dublin III Regulation, in spite of its well-documented failings; takes the view that this blocking might be interpreted as a violation of the principle of mutual and sincere cooperation between the EU institutions in Article 13(2) of the TEU, and also in view of the fact that the Council has always sought unanimous agreement even though qualified majority is prescribed by the Treaties; finds it particularly regrettable that the Union still has the same set of rules which have proven to be ineffective in managing a high number of arrivals; calls for a swift reform of the CEAS;

9. Notes that the mechanism for early warning, preparedness and crisis management in Article 33 has not been applied to date, not even during the high number of arrivals in 2015-16; notes, further, that the provisions in the Temporary Protection Directive that aimed to address temporary protection in case of mass influxes of displaced person unable to return to their country of origin have yet to be invoked;

10. Considers that a solidarity-based mechanism in the EU should be established to ensure continuity of the fundamental right of asylum in the EU with a view to ensuring access to asylum and responsibility sharing among Member States; emphasises that the protection of asylum applicants’ fundamental rights should always remain at the centre of this mechanism; considers that such a mechanism should allow for the participation of civil society organisations providing professional assistance to people in need of international protection, particularly where this is of a legal nature;

11. Underlines that the discretionary clause in Article 17, which enables a Member State to take responsibility for an asylum application, even if it has not been identified as the responsible Member State under the Dublin III Regulation, is used differently, rarely, and only by a few Member States; notes that Germany, the Netherlands and France accounted for the majority of cases in 2018; calls on all Member States to make better use of the discretionary clause in Article 17 to deal with challenging situations and humanitarian emergencies in the absence of a permanent solidarity mechanism; takes the view that the discretionary clauses of Article 17 should be used as a solidarity tool for responsibility sharing, in particular in situations of high numbers of arrivals by land and sea, or to transfer asylum seekers currently living in the hotspots in inhuman, degrading, unsanitary and unsafe conditions and without sufficient access to physical and mental health support;

12. Takes the view that provisions on family unity, which are the first in the hierarchy of criteria for the establishment of responsibility, should be effectively implemented, and that the provisions on dependent persons (Article 16) and discretionary clauses (Article 17) could be used more widely to support family unity;

13. Highlights the many challenges involved in implementing the Dublin III Regulation; notes the significant operational and technical support provided by EASO to Member State authorities in implementing the Dublin procedures, in particular in the hotspots;

14. Calls on the Commission and the Member States to facilitate the work of EASO staff by allowing interviews of asylum seekers to be held in a language other than that of the country in which it is conducted while ensuring that the applicant is provided with interpretation in a language they understand; stresses the need for EASO to abide by the highest standards in its operational work, and to put the interests of applicants in need of international protection, including the best interests of the child, at the heart of its work; calls for the establishment of a European Asylum Agency, with sufficient financial and human resources, to support Member States with Dublin procedures; urges adequate organisation and staffing of European Dublin units in order to streamline and expedite the completion of Dublin-related procedures, and particularly to ensure the correct application of Chapter III of the Dublin III Regulation, which links an asylum-seeker to a particular Member State;

Protecting fundamental rights

15. Points out that the protection of fundamental rights must be at the heart of all the measures taken to implement the Dublin III Regulation, including the protection of children, victims of trafficking, LGBTI persons and other vulnerable people; points out the human cost that the deficiencies of the CEAS is causing asylum seekers, whose mental health is already weakened by the traumas they have experienced in their country of origin and potentially along migratory routes;

16. Recalls that asylum seekers have the right to be fully informed on procedures; regrets that the level of information provided to asylum seekers differs considerably between Member States; urges the Member States to guarantee that minors have tailored, child-friendly information and specific support; stresses that providing legal assistance and interpretation are key to ensuring applicants’ right to information;

17. Points out that transfers of asylum seekers, and in particular of vulnerable people, minors and families, can result in violations of their human rights; reiterates that non-refoulement and human rights abuses are reason enough to suspend a transfer even when the destination country does not present systemic deficiencies; urges Member States to properly assess the risks to which applicants would be exposed in the Member State of destination; stresses in particular that transfers must be carried out in a way that under no circumstances exposes individuals to a risk of refoulement;

18. Notes that, as set out in Article 28, detention of asylum seekers under the Dublin procedure may take place only as a last resort, only if it complies with the proportionality principle, and if no alternative and less coercive measure can be effectively implemented to ensure the transfer procedure can be carried out in cases where there is a significant risk of absconding; calls on Member States to make concrete efforts to find valid alternatives to detention;

19. Considers that such detention shall be as brief as possible, and be for no longer than the time reasonably necessary to fulfil the administrative procedures required with due diligence until the transfer under this Regulation is carried out; stresses that in the absence of harmonised criteria for determining the risk of absconding, Member States have adopted divergent and sometimes controversial criteria; calls on the Member States and the Commission to clarify a ‘significant risk of absconding’;

20. Urges the Member States and the Commission to clearly state that detention is never in the best interests of the child;

21. Recalls that according to the European Court of Human Rights[26] it is unlawful to impose a detention measure on a minor without any consideration of their best interests, of their individual situation as unaccompanied minors if applicable, or without a proportionality assessment or without alternatives to detention being available;

22. Stresses that the ultimate purpose of the protection of children, such as against child trafficking, shall always prevail, in order to ensure that children in migration have swift access to education, healthcare and appropriate accommodation; underlines that unaccompanied children should benefit from appropriate protection measures such as effective guardianship;

23. Points out numerous and systematic deficiencies in compliance with the hierarchy of criteria; stresses that family unity is far from being the most frequent criterion applied, although it is at the top of the hierarchy in Chapter III of the Regulation; considers that Member States, based on the principle of mutual cooperation, should help the competent authorities and third country nationals in improving the establishment of existing proven family links in the procedure for determining the Member States responsible; calls on the Commission to ensure full compliance with the hierarchy of criteria;

24. Regards it as essential to clarify the conditions for applying the family reunification criterion, and to give priority, as set out in Article 7(3) of the Regulation, to the application of Articles 8, 10 and 16 as the main criteria for determining the Member State responsible for examining an asylum application, in order to ensure the effectiveness of the right to family unity and quicker implementation of family reunification decisions; calls on the Commission and the Member States to harmonise the standard of proof required for family reunification in the direction of more achievable standards and requirements; points out that interpretations of what constitutes a ‘family’ vary across Member States, contributing to the lack of compliance with the hierarchy of criteria and the dysfunctionality of the system; calls therefore on the Commission to carefully monitor the sound application of the family-related definitions by Member States, as defined in Article 3 of the Regulation;

25. Recalls that according to the Regulation the best interests of the child should be the primary consideration in all Dublin procedures and decisions concerning children; regrets that Member States apply different interpretations of the best interests of the child;

26. Deplores that inadequate identification mechanisms and sometimes erroneous methods of age assessment often further exacerbate the situation of minors, causing delays or negatively affecting the outcome of Dublin procedures; notes that good practices have been developed in certain Member States, such as the use of specialised staff for unaccompanied minors or a multidisciplinary approach to determine age;

27. Is seriously concerned that in many Member States due to practical challenges the appointment of a representative to assist unaccompanied minors in Dublin procedures is often delayed or is not guaranteed; notes also that in some countries these representatives are insufficiently informed about Dublin procedures, and that unaccompanied minors lack child-friendly support;

Simplify procedures, significantly reduce processing times and uphold the right to an effective remedy

28. Stresses that the number of transfer procedures increased significantly in 2016-17, generating considerable human, material and financial costs; deplores, however, that transfers were carried out in only 11 % of cases, a further factor in the frequent overloading of asylum systems, which clearly demonstrates the lack of effectiveness of the Regulation; regards efforts to guarantee access to information and swift procedures for family reunification and the transfer of asylum seekers as essential;

29. Highlights the important body of ECtHR and CJEU case law in recent years that has clarified the admissible grounds for preventing Dublin transfers, in particular any source of risk to the individual; notes in particular the increasing number of decisions by European and nationals courts to suspend transfers to Member States where an asylum seeker would be unfairly denied international protection (cases of indirect refoulement) or would be denied their rights in the Dublin procedure; deplores that asylum seekers are victims of inhuman or degrading treatment in certain Member States;

30. Notes that shortcomings in the structural organisation and functioning of national asylum authorities, together with shortages of resources, have contributed to delays in Dublin procedures and hindered the application of the regulation; notes that while most countries have a single specialised authority for asylum, some Member States have chosen to share the responsibility between different authorities, creating practical complexities for asylum seekers in certain cases and divergences in the implementation of the Regulation;

31. Stresses that the effectiveness of Dublin procedures also depends on the quality and staffing levels of each national asylum authority; notes important gaps between asylum authorities in terms of number of staff per asylum applicant; stresses that national Dublin units are understaffed while facing a significant increase in their workload; calls on the Member States to increase the resources for making Dublin III operational, particularly the number of asylum officers;

32. Stresses the lack of cooperation and information sharing between Member States, which actively undermines the principle of EU solidarity, and directly contributes to the overburdening of systems in certain Member States;

33. Stresses that the excessive and partly inappropriate application of the ‘irregular entry’ criterion puts a disproportionate burden on first entry countries, which often lack the resources and capacity to host and register asylum seekers; notes that ‘take back’ requests have been the predominant form of Dublin procedure used in recent years, meaning that most persons placed in a Dublin procedure have already applied for asylum in another Member State; notes that adequate measures to prevent secondary movements should apply to Member States in the Schengen Area, and also those outside it;

34. Recalls that the time limits at each stage of the Dublin procedure are meant to keep the procedure short, and enable fast access to the asylum procedure; notes that there are still a lack of clarity and variations between Member States on the calculation of time limits and the time when the clock starts for each procedure; proposes the clarification and harmonisation of the conditions that trigger transfer procedures;

35. Considers that in some cases the rules on transfer of responsibility under Dublin III undermine the efficiency of asylum procedures and the carrying out of transfers by increasing the danger of absconding; deplores the often spurious reasons adduced by Member States for refusing transfers; considers that these factors, among others, have contributed to the increase in the number of secondary movements by encouraging asylum-seekers to remain outside the system; calls on the Commission to revise the rules in order to improve the execution of transfers and do away with the transfer of responsibility in cases where an asylum seeker absconds, to foster trust between Member States, to monitor the situation and, where necessary, impose penalties on Member States which refuse transfers;

36. Notes that the incorrect application of the rules on the hierarchy of criteria, particularly regarding family reunification and the situation of unaccompanied children, as well as the disproportionate use of the criterion of the first country of irregular entry also undermines asylum procedures; notes that these implementation gaps may encourage asylum seekers to remain outside the system; stresses that further harmonisation of the Member States’ asylum systems is key to a functioning Dublin III Regulation and to preventing secondary movements; calls on the Commission to propose a system which duly takes account of asylum seekers’ proven meaningful links to a Member State, such as previous legal residence or educational diplomas, and which ensures that the treatment of asylum seekers is equal in relative terms across the EU;

37. Considers that providing asylum seekers with legal assistance for Dublin procedures, in particular in the hotspots, is fundamental to ensuring applicants are informed of their rights and obligations during a Dublin procedure; stresses that this would enhance rights-compliant procedures, simplify Dublin procedures, and improve decision-making; notes that a legal representative can ensure that each case file is complete and accurate, and contribute to reducing the rate of appeals and safeguarding the right to non-refoulement; notes with concern that some specific issues remain at national level, such as limited access to independent legal representatives in remote asylum centres, low rates of financial remuneration for legal assistance, a lack of adequate facilities for preparatory and private interviews, and inadequate provision of legal aid for applicants in detention centres; calls on the Member States and the European Commission to increase the funds available for the provision of legal assistance during the Dublin procedure;

38. Stresses that the quality and amount of information provided to the applicants during the Dublin procedure is far from satisfactory, varies significantly between countries, and in some cases, within countries; notes that different factors affect compliance with the right of information, such as the quality and clarity of information, access to an interpreter, the availability of translated documents, access to information in due time; recalls that the right to information under Article 4 of the Regulation is essential given the complex nature of Dublin procedures, and for guaranteeing access to a fair examination of an asylum application in the EU; underlines that gaps in this field can attributed to a lack of resources, but also result from deliberate policy choices in certain countries where very few legal representatives have been appointed; urges the Member States, with the support of the Commission and the EASO, to improve the information made available to asylum seekers on complex Dublin procedures, to ensure that it is clear and accessible to everyone, particularly with regard to family reunification, in accordance with Articles 4 and 26 of the Regulation, and access to an effective remedy and legal assistance, in accordance with Article 27;

39. Calls on the Commission to assess the overall implementation of the CEAS, as well as any gaps and shortcomings in the Dublin III Regulation that lead to a disproportionate burden of responsibility being placed on countries at the external borders of the EU;

A single and rights-centred implementation of Dublin arrangements in asylum cases throughout the EU

40. Stresses that the principle of a single EU asylum application cannot be upheld, a state of affairs at odds with the very purpose of the Dublin III Regulation; notes that implementation of this principle is hampered by various factors, meaning that there are multiple reasons for the submission of subsequent asylum applications; considers that the competent national authorities should share their relevant information, in particular on the granting and rejection of asylum applications, in a European database such as Eurodac, in order to speed up procedures and prevent multiple asylum applications, while protecting personal data; considers that registering all applicants and migrants crossing the borders irregularly is a priority;

41. Notes that the extent of protection for asylum seekers varies greatly between Member States for certain nationalities, and that this can contribute to onward movement; considers that taking into account applicants’ individual needs in Dublin procedures would reduce secondary movements; believes that taking account of ‘proven meaningful links’ to a particular Member State is an effective approach to reducing secondary movements, and calls for this to be included as a criterion for relocation;

Strengthening governance and convergence between Member States

42. Stresses that the Commission's network of Member States’ Dublin units has met only once or twice a year, and has not played an operational role; considers that the non-coordinated use of the EASO Dublin Units Network prevents the Dublin III Regulation from functioning effectively; notes however that the EASO Dublin Network has been more active, and that EASO has carried out a number of useful missions to support Member States in implementing the Dublin III Regulation, such as the production of guidance documents and analysis, the organisation of training courses, or the deployment of agents; urges closer cooperation between national asylum authorities in order to share information, foster the development of uniform and best practices, streamline transfers and contribute to preventing cases of multiple applications; proposes that EASO be given the task of drawing up enhanced governance arrangements for the application of the Dublin III Regulation, including a monthly operational dialogue between national authorities, and a platform for the exchange and sharing of information and best practices; 

43. Calls on the Commission and the Member States to include, among the sources used to monitor implementation of the Regulation, reliable, up-to-date information provided by non-state actors, in particular international organisations and NGOs;

44. Notes that between 2008 and 2017 a significant number of asylum applications were lodged by third country nationals who travelled visa-free or with a short-term visa to enter the Schengen Area[27]; notes, further, that some of these applications were submitted in a Member State other than the one for which the visa was issued; underlines that for subsequent Dublin procedures, it has been proven that the rules in Articles 12 and 14 are not sufficiently clear, thus hindering the determining of the Member State responsible; calls on the Commission to clarify how Articles 12 and 14 of the Regulation should be applied when determining what Member State should be responsible for an asylum application; proposes the evaluation, as one of the hierarchy of criteria, of the possible impact of visa-waived entry applications on the proper functioning of the Dublin system;

45. Notes that bilateral agreements have been concluded between Member States to improve the efficiency of Dublin procedures or ensure the transfer of asylum seekers; underlines however that they have also proven to have an adverse effect, in certain cases weakening the achievement of the objectives of the Regulation at European level; urges the Commission and all Member States to rather take stock of the factors contributing to greater efficiency, to take joint and coordinated action to optimise the effective implementation of the Dublin III Regulation, and work towards harmonising the implementation of the Regulation; 46.  Notes that Member States may draw up preventive action plans, with the support of the Commission and in coordination with it, where the application of the Regulation may be jeopardised due to a substantiated risk of particular pressure on Member States’ asylum systems and/or to problems in the functioning of their asylum systems, in accordance with Article 33; notes that these preventive measures may take into account information from the Commission and EASO, and may lead to genuine and practical solidarity, in accordance to Article 80 of the TFEU, with Member States facing particular pressures on their asylum systems in general, including as a result of mixed migration flows, and with applicants, allowing for better preparedness in the event of a potential asylum crisis;

46. Considers that the implementation of the Dublin III Regulation is not proving effective, because its primary objectives are not being met, namely swift and fair determination of the Member State responsible for an application for international protection; recalls that significant implementation gaps have been identified for a number of Dublin provisions; stresses that the implementation of the Regulation is highly inefficient in relation to the efforts, human resources and staff dedicated to it by the Member States;

47. Calls on the Council to adopt qualified majority voting when reforming the Dublin III Regulation, and when acting with regard to Article 78(2) of the TFEU;

48. Deplores the fact that the Commission has still not published its Article 46 assessment report; calls on the Commission to ensure that the Dublin III Regulation is implemented more effectively;

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49. Instructs its President to forward this resolution to the Council, the Commission, the governments of the Member States and the national parliaments.

LETTER OF THE COMMITTEE ON WOMEN'S RIGHTS AND GENDER EQUALITY

Mr Juan Fernando López Aguilar

Chair

Committee on Civil Liberties, Justice and Home Affairs

BRUSSELS

Subject: Opinion on the Implementation of the Dublin III Regulation (2019/2206(INI))

Dear Mister Chair,

Under the procedure referred to above, the Committee on Women's Rights and Gender Equality has decided to submit an opinion to your committee. At its meeting of 4 December 2019, the committee decided to send the opinion in the form of a letter.

The Committee on Women's Rights and Gender Equality considered the matter at its meeting of 16 July 2020. At that meeting[28], it decided to call on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to incorporate the following suggestions into its motion for a resolution.

Yours sincerely,

Evelyn Regner

SUGGESTIONS

A.  Whereas women and girls account for a high share of vulnerable asylum seekers, as they are often subjected to multiple forms of discrimination and all forms of gender based violence, trafficking and exploitation in their countries of origin, transit and destination, namely before getting a documented status;

1. Stresses the importance to detect and take into consideration women and girls’ needs throughout the entire asylum procedure; calls for specific psychological help and access to sexual and reproductive rights for women who experienced trauma and namely gender-based violence (including emergency contraception, safe abortion services and HIV post-exposure prophylaxis) as well as the need for gender sensitive training for all actors across the asylum process including law enforcement and immigration caseworkers;

2. Is extremely concerned by the persistent gender-based violence perpetrated namely towards women, transgender people and all people experiencing violence because of their gender identity and/or sexual orientation which needs to be addressed to protect fundamental rights; condemns the use of coercive measures by law enforcement officials when implementing Dublin transfers reported in several Member States, whereby asylum seekers were handcuffed, sedated and subject to police violence; emphasises that women, particularly pregnant women, women with new-borns, women with disabilities and elderly women as well as LGBTI+ asylum-seekers are especially vulnerable and face long-term consequences;

3. Condemns the detention of asylum seekers and considers paradoxical the application of detention measures to victims of violence seeking asylum and considers it essential to avoid detention of pregnant women and women with new-borns, in the best interest of the physical and mental health of both mother and child; stresses that alternatives to detention should be actively explored and that violence-related asylum claims should be dealt with in a way that protects women and girls from secondary victimisation;

4. Reminds that the right to family life is essential, particularly with a view to their future life prospects including integration, and thus adequate tracing of family members in the EU MS for relevant family member information with a view to family reunification within the Dublin III procedure for the determination of the Member State responsible to the asylum claim is crucial.

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

Key to symbols:

+ : in favour

- : against

0 : abstention

INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

Key to symbols:

+ : in favour

- : against

0 : abstention