CYIL 2012

Harald Christian Scheu CYIL 3 ȍ2012Ȏ countries in breach of Article 3 of ECHR. Another criticism has been devoted to the unclear protection of de facto family life for those refugees who have been granted so-called subsidiary protection. 26 A UNHCR Discussion Paper of 2006 27 highlights the problems linked to a narrow concept of family in the Dublin Regulation. Family relations were not always recognized in cases where the marriage took place only within a religious ceremony and without official recognition by the state authorities. The UNHCR document also identifies some technical problems related to the proof of family ties. Whereas some EU Member States assess the existence of family ties according to the credibility of the testimony of persons, other Member States (including the Czech Republic) insisted on the need for official documentation. As ultima ratio solution some Member States even applied DNA tests. In practice, the formalistic concept of family as defined in the Dublin Regulation, which excludes some cases of so-called de facto family, causes difficulties, especially with respect to the case law of the European Court of Human Rights (ECtHR) which repeatedly confirmed that de facto family ties fall within the notion of family life under Article 8 of ECHR. Other voices have asserted that the implementation of the Dublin system serves as a way to restrict the personal liberty of asylum seekers. In this context Andrea Baršová has called particular provisions of the Dublin system “the Achilles heel” with a view to the protection of asylum applicants against restrictions of personal freedom. 28 As a particularly illogical weakening of the standard of protection she perceived those cases in which the responsible country was determined on the basis of so-called humanitarian reasons. Furthermore, some voices have repeatedly criticized the Dublin system for its allegedly poor practicability and significant financial demands. In any case, the application of the Dublin system burdens unilaterally only some Member States and contradicts the spirit of loyalty and solidarity on which the EU is founded. 5. The Dublin system in light of case law of the European Court of Human Rights As the major weakness of the Dublin system there eventually appeared another problem which is related to the excessive burden of Member States at the EU’s external borders. Already in September 2010 a report issued by the Council of Europe Commissioner for Human Rights warned that in recent years states such as Greece and Malta could not provide adequate protection to all asylum seekers on international protection and the content of the protection granted (OJ L 304, 30 September 2004, p. 12-23). 26 For an overview see e.g. Peers, S., Rogers, N. (ed.) EU Immigration and Asylum Law, 2006, 229-235. 27 UN High Commissioner for Refugees, The Dublin II Regulation. A UNHCR Discussion Paper, April 2006, (http://www.unhcr.org/refworld/docid/4445fe344.html). 28 Baršová, A. „Dublin II“ a omezení svobody žadatelů o azyl (Contribution at the Seminar „Systémové problemy azylové a cizinecké legislativy v ČR a dopady vstupu České republiky do EU“, Brno, 23 August 2004).

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