CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE Under Articles 9 to 13 of the Dublin Regulation the determination of the responsible Member State is governed by the principle of accountability. States which are responsible for the entry or the stay of a refugee in the EU area shall be competent to examine his application for asylum. 21 This principle does not relate to cases of legal residence only, but also to the illegal crossing of EU external borders. In this sense, Article 9 of the Dublin Regulation states that a valid residence permit or a valid visa should be criteria for the determination of a Member State’s responsibility in asylum cases. Also, in case that a third country national does not need a visa to enter a particular EU Member State, this state will be responsible to deal with the asylum application. 22 Article 12 of the Dublin Regulation extends the principle of accountability to those asylum applications which have been lodged by a third country national in the international transit area of an airport of a Member State. With regard to asylum applications submitted by persons who reside illegally in the EU area, Article 10, paragraph 1of the Dublin Regulation determines the responsibility of the EU Member State whose borders are crossed first by the third country national. 23 This responsibility shall cease 12 months from the date on which the irregular border crossing took place. Subsidiarily, the Member State on whose territory the applicant has resided continuously for at least five months will be responsible. 24 Article 13 of the Dublin Regulation refers to cases in which the responsible Member State cannot be determined under the previous rules and states that the state in which the application was lodged shall be responsible. In addition, Article 15 of the Dublin Regulation introduces a so-called humanitarian clause, under which a Member State which is not competent to deal with the asylum application according to the aforementioned principles may assume responsibility for particular family considerations or reasons of culture. Chapters V and VI of the Dublin Regulation regulate issues concerning the taking- back and the reception of asylum seekers and administrative cooperation between Member States. 4. Criticism of the Dublin system From a human rights perspective the Dublin system has become the target of fierce criticism. Especially in the period before the adoption of the so-called Qualification Directive, 25 there had been concerns about the possible return of refugees to third 21 See Dolk, Klaudia. Das Dublin-Verfahren im Spannungsfeld einer menschenwürdigen und solidarischen Verantwortung für Flüchtlinge in Europa , Friedrich-Ebertstiftung, Internationale Politikanalyse, Oktober 2011, p. 4 (http://library.fes.de/pdf-files/id/ipa/08513.pdf ). 22 See Article 11, paragraph 1 of the Dublin Regulation. 23 As far as the issue of the proof of residence in the first Member State is concerned, Article 10 of the Dublin Regulation refers to Council Regulation No2725/2000/EC of 11 December 2000 (the “Eurodac” Regulation). 24 See Article 10, paragraph 2 of the Dublin Regulation. 25 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need

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