CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE Title II of the Convention implementing the Schengen Agreement and included the major part of its rules. In 1994 the signatories of the Convention implementing the Schengen Agreement which at the same time were also states parties to the Dublin agreement signed a protocol according to which the relevant parts of the Convention implementing the Schengen Agreement remained inapplicable after the entry into force of the Dublin agreement. The Amsterdam Treaty of 1997 can be understood as a milestone in the development of the Dublin system, as it introduced new EU competences into Title IV of the Treaty Establishing the European Community (TEC), which was titled “Visas, asylum, immigration and other policies related to free movement of person” . According to Article 63, paragraph 1 of the TEC, the Council gained the power to, among other things, adopt criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States. At its summit of October 1999 in the Finnish city of Tampere the European Council confirmed this commitment and emphasized the need for the creation of a Common European Asylum System. According to the Summit Conclusions, the rules for the determination of the Member States responsible for concrete asylum applications should be part of that system. In 2000 the European Commission presented a working paper in which it approached some aspects of the Dublin system in a very critical way. 3 The Commission pointed out problems connected to the application of the Dublin convention, e.g. the procurement of reliable proof with respect to the determination of the responsible Member State (especially in cases in which the asylum applicants destroyed personal documents) and the existence of different national standards of asylum procedure. However, when it came to the issue of alternative models, the Commission had to admit that all possible alternatives to the Dublin Convention hide further problems. If the common approach of EU states was to allocate responsibility for asylum applicants to the last known transit Member State within the EU, this would cause serious problems regarding evidence. Moreover, the model based upon the last known transit country would in practice penalize states for the removal of internal borders. Other possible criteria were considered to be arbitrary by the Commission. This applied, for example, for a radical approach under which all asylum applicants from a particular country of origin would be the responsibility of one EU Member State specified according to cultural and historical links. The burden would be significantly unbalanced between EU Member States. Non-governmental organizations suggested that responsibility should be allocated to the first Member State where an asylum claim is lodged. Indeed, such approach could remove some technical and administrative 3 SEC(2000) 522 (“Revisiting the Dublin Convention: developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States”).

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