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Dublin
II
This material was prepared in association
with GEA2000. It is NOT legal advice. It is provided for general
information only. You should make every effort to speak directly
with a lawyer BEFORE taking any
action.
Valid for Europe Only
The Dublin II regulation is determining which of the countries
in the "Dublin area" is responsible for examining an asylum application.
If you want to
be sure that
a certain country of asylum is responsible for your application
you must know more about Dublin II. The "Dublin
area" or "Dublin II area" includes Austria, Belgium,
Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece,
Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, the Netherlands, Norway, Poland, Portugal, Spain, United
Kingdom, Slovakia, Slovenia, Sweden. Denmark does not participate
to the Dublin II system. Norway and Iceland do participate though
they are not EU Member States. So
the Dublin area is slightly different from the EU area.
You should always respect the official Dublin
procedure. Many people travel without authorisation to another
Dublin State in order to join their family there. But they risk
losing everything: The other state will not examine the asylum
application as the first one is in charge. And the first one might
finish the examination in absence of the applicant. The result
is almost always negative: no asylum in the two states, no further
chance to get asylum in the whole Dublin area as the ”one-chance-only” principle
applies. So, once you have applied for asylum within the Dublin
area, you have to accept the outcome of Dublin II. Don’t
travel to another Dublin State without authorisation!
Is it possible to avoid the application of Dublin II by saying: ”I
do not apply for asylum but I apply for humanitarian protection”?
Humanitarian protection is protection against forcible return /
expulsion for other reasons than the once mentioned in the Geneva
Refugee Convention. The answer to this question is not easy. We
deal with it on Alternatives
to Dublin II? Humanitarian protection. But before you check
alternatives, please verify the result of Dublin II in your individual
case.
Our first general explanations are:
If no other indication is given, the situation
at the time of the first application within the Dublin area is
the
relevant one. So it does not
matter whether the situation was different before or after.
When we write that one state can ask another
to examine the application and to take over the applicant, this
does
not mean that it must do so.
It can also examine the asylum application itself.
Some Dublin States prefer
to do so because they think it takes too much time to
convince the other state to take the applicant and his application
back.
A report of the year
2000 on the old Dublin I reveals the states' practice
at that time (please click here). The same report states elsewhere
that requests
to take over
an applicant are rejected in 10 to 50%. So, you cannot
always know where you end up.
Unfortunately, Dublin II is a complicated system that
cannot be easily simplified. You should read the original text
in order to find out which Dublin State is responsible for examining
your asylum claim.
If you follow the reading instructions, it will be much easier
to find out which Dublin State is responsible for you. The reading
instructions reflect
the logical structure of the Dublin regulation. The logical structure is slightly
different from the text structure.
The first and most important reading instruction is:
Don’t read the full text. Read the following list of criteria first.
Check from the top down which articles are relevant for you. Only when you
think that the article might be relevant for you, click on the link for the
article. Come back to the list when you have followed the other reading instructions.
Check then the next criteria of the list.
We also have added explanations
(green), examples (blue), and reading
instructions (red) to make the rules easier to understand.
You are an unaccompanied minor and you have
a member of your family somewhere in the Dublin II area:
read Articles 6, 14 and Article 15-3 (the third paragraph of Article 15).
A member of your family has been recognised somewhere in
the Dublin II area:
read Article 7, 14 and 15.
A member of your family is still in the asylum
procedure somewhere in the Dublin area:
read Article 8, 14 and 15..
You have more than one valid residence document or visa issued
by different Dublin States: Read Article 9-3 and 9-5
You have one valid residence document:
read Article 9-1 and 9-5
Article 6
Where the applicant for asylum is an unaccompanied minor,
the Member State responsible for examining the application shall be
that where a member of his or her family is legally present, provided
that this is in the best interest of the minor. In the absence of
a family member, the Member State responsible for examining the application
shall be that where the minor has lodged his or her application for
asylum.
"Legally present" means with a
valid residence permit or long-stay visa. Asylum seekers are not
yet ”legally present."
An "unaccompanied minor" is somebody between 0 and 17 years
old who is not married and not accompanied by an adult who is responsible
for him. Only fathers, mothers, and guardians are "family members" of "unaccompanied
minors" in the context of Article 6. According to Article 15-3,
also other members of the minor's family, even without residence permit,
can be taken into account.
Example: Mike applied for asylum in Spain because of the civil war
in southern Sudan. He had lost his father some years before in the
civil war. In Sudan he was living with his mother and her new husband.
His mother lives still in Sudan, but her new husband lives in Denmark
where he was recognised as refugee. Spain will probably ask Denmark
to take over Mike and to examine his asylum application.
Always read Article 14 and Article 15-3 together with this article
Article 7
Where the asylum seeker has a family member,
regardless of whether the family was previously formed in the country
of origin, who has been allowed to reside as a refugee in a Member State,
that Member State shall be responsible for examining the application
for asylum, provided that the persons concerned so desire.
Only spouses and natural or
adopted children of at least one of the two partners of a married
couple are "family
members" in the context of Article 7. Second or third wives are
not recognised as spouses.
Example: Hassan from Somalia applied recently
for asylum in Luxembourg. He marries a lady from Somalia living
in Germany. He came to know
her recently. His wife has no refugee status, but is ”tolerated” for
humanitarian reasons because she risks to be circumcised against her
will. Has Germany to take over Hassan and his asylum application?
It does not harm that they never lived together, but the answer is
nonetheless ”No”: As Hassan’s wife has a humanitarian
status, but no refugee status, Article 7 does not apply. Germany is
allowed to take over Hassan according to Article 15, but it is not
obliged to do so according to Article 7.
Always read Article 14 and Article 15 together with this article!
Article 8
If the asylum seeker has a family member in a Member State whose application
has not yet been the subject of a first decision regarding the substance,
that Member State shall be responsible for examining the application for
asylum, provided that the persons concerned so desire.
Only spouses and natural or adopted children
of at least one of the two partners of a married couple are "family members".
Second or third wives are not recognised as spouses.
Always read Article 14 and Article 15 together with this article!
Article 9
1. Where the asylum seeker is in possession of a valid residence document, the
Member State which issued the document shall be responsible for examining the
application for asylum.
A residence document is valid for more than three months.
Example: Ananda from Sri Lanka has a British residence permit and
a French visa. He entered the territory of the European Union via
Frankfurt airport in Germany where he applied for asylum. Because
of the British residence permit, the United Kingdom has to examine
the asylum application. All other criteria (visa and point of entry
into the Dublin area) are not relevant.
Always read Article 9-5 together
with this article!
2. Where the asylum seeker is in possession of a valid visa, the
Member State which issued the visa shall be responsible for examining
the application for asylum, unless the visa was issued when acting
for or on the written authorisation of another Member State. In such
a case, the latter Member State shall be responsible for examining
the application for asylum. Where a Member State first consults the
central authority of another Member State, in particular for security
reasons, the latter's reply to the consultation shall not constitute
written authorisation within the meaning of this provision.
Example: Cesaria, a journalist from Angola,
had criticised the corruption of the Angolan government. She has got
a French visa in order to participate
to a journalists’ conference in Paris. On her way to Paris, she
applies for asylum in Portugal (Lisbon airport) where she has some cousins.
Portugal can ask France to examine her asylum claim because of the French
visa, though she never entered France!
Always read Article 9-5 together with this article!
3. Where the asylum seeker is in possession of more than one valid
residence document or visa issued by different Member States, the responsibility
for examining the application for asylum shall be assumed by the Member
States in the following order: (a) the Member State which issued the
residence document conferring the right to the longest period of residency
or, where the periods of validity are identical, the Member State which
issued the residence document having the latest expiry date; (b) the
Member State which issued the visa having the latest expiry date where
the various visas are of the same type; (c) where visas are of different
kinds, the Member State which issued the visa having the longest period
of validity, or, where the periods of validity are identical, the Member
State which issued the visa having the latest expiry date.
For instance a transit visa valid
for some days and a tourist visa valid for three months are "visas of different kinds". Dublin
II distinguishes between the following ”kinds” of visa:
- ”long-stay visa” for people who will get a residence
permit allowing them to live there for more than 3 months;
- ”short-stay visa” for a stay up to 3 months (in all Member
States together);
- ”transit visa” and ”airport transit visa.”
Example: Chandra from India was a local activist
against the caste system. Some leading members of an extremist
Hindu party persecute him.
He had known that he wouldn’t get a visa for Germany if he says
that he wants to apply for asylum. Therefore he had successfully asked
for a long-stay visa and a residence permit as specialised cook in the
Indian restaurant of his cousin. Thus he got a residence permit for
Germany valid for one year. He also has a residence permit for the Netherlands
valid for 3 years because his wife lives there. He applies for asylum
in Germany. Will the Netherlands or Germany examine Chandra’s
application? If Germany comes to know of the other residence permit,
it will ask the Netherlands to examine the asylum application
because the residence permit in the Netherlands is valid for a
longer period
than the German one.
Always read Article 9-5 together with this article!
4. Where the asylum seeker is in possession only of one or more
residence documents which have expired less than two years previously
or one or more visas which have expired less than six months previously
and which enabled him actually to enter the territory of a Member
State, paragraphs 1, 2 and 3 shall apply for such time as the applicant
has not left the territories of the Member States.
Where the asylum
seeker is in possession of one or more residence documents which
have expired more than two years previously or one or more visas which
have expired more than six months previously and enabled him actually
to enter the territory of a Member State and where he has not left
the territories of the Member States, the Member State in which
the
application is lodged shall be responsible.
Example 1: Abdullah was legally living in Belgium until one year ago.
After returning to his country Afghanistan he faced problems with a
local warlord. The Italian police arrest him on the second illegal journey
to Belgium. Thus he applies for asylum in Italy. Belgium is not in charge
of examining his application but Italy, because he has left the territory
of the European Union.
Example 2: Mustafa was as well legally living in Belgium. Then he
decided to join his brother in the United Kingdom without UK visa
or residence permit. He is caught 18 months later by the British police.
Belgium is still in charge of his asylum claim because he has not
left the territory of the European Union.
Example: When his first application for asylum was rejected three
years ago, Chris from Uganda had no residence permit for Finland anymore.
Since then he has been living in Sweden illegally. One day he decides
to apply again for asylum, but this time under another name. His fingerprints
and his former application reveal his real identity. Nonetheless Sweden
is in charge of his application because the residence permit expired
more than two years ago.
Always read Article 9-5 together with this article!
5. The fact that the residence document or visa was issued on the
basis of a false or assumed identity or on submission of forged, counterfeit
or invalid documents shall not prevent responsibility being allocated
to the Member State which issued it. However, the Member State issuing
the residence document or visa shall not be responsible if it can establish
that a fraud was committed after the document or visa had been issued.
Please note that Article 9 does not apply when the visa too is counterfeit
or forged.
Example: Martha from Chechnya (Russia) is in possession of the passport
of a friend. In the passport there is a visa of the Czech Republic.
She entered the European Union illegally via Slovakia and the Czech
Republic, but applied for asylum in Poland. The passport is valid,
the Czech visa as well, but the photograph was exchanged after delivery
of the visa in Moscow. The Czech Republic is in charge of the asylum
application, because it delivered a visa. But if the Czech Republic
can prove that the photo was exchanged after the visa had been inserted,
Slovakia is in charge because Martha entered the European Union via
Slovakia (see Article 10).
If your case does not fall under this Article,
please check our list of Dublin criteria again, from top down.
Article 10
1. Where it is established, on the basis of proof or circumstantial evidence
as described in the two lists mentioned in Article 18(3), including the data
referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum
seeker has irregularly crossed the border into a Member State by land, sea
or air having come from a third country, the Member State thus entered shall
be responsible for examining the application for asylum. This responsibility
shall cease 12 months after the date on which the irregular border crossing
took place.
Article 10-1 refers to two different
lists of types of evidence used to prove particular
matters. The
lists of proof are here.
Example: Salima from Syria risks to be killed
by her husband and his family because of alleged adultery. On
her flight the German police
catches 20 kilometres beyond the Austrian boarder. She applies spontaneously
for asylum. The police discover in her pocket a one-month-old ferry
ticket for the journey Alexandria - Athens. Germany can ask Greece
to examine the asylum application and to take back Salima because
such tickets are a ”weak” means of proof according to
the mentioned second list. But Germany might also examine the application
itself instead of trying to convince the Greek authorities that
the ferry ticket is evidence enough for a transit through Greece.
This
is the most frequent case in which the practice differs from the
legal situation.
If your case does not fall under this Article,
please check our list of Dublin
criteria again, from top down.
2. When a Member State cannot or can no longer be held responsible
in accordance with paragraph 1, and where it is established, on the
basis of proof or circumstantial evidence as described in the two lists
mentioned in Article 18(3), that the asylum seeker - who has entered
the territories of the Member States irregularly or whose circumstances
of entry cannot be established - at the time of lodging the application
has been previously living for a continuous period of at least five
months in a Member State, that Member State shall be responsible for
examining the application for asylum. If the applicant has been living
for periods of time of at least five months in several Member States,
the Member State where this has been most recently the case shall be
responsible for examining the application.
Example: Nguyen, a Christian from
Vietnam, had been living first in Hungary for 7 months and then in
Slovakia for six months. He applied for asylum
in Austria. Hungary is in charge of the application because he stayed
there for a longer period than in Slovakia.
If your case does not fall under
this Article, please check our list of Dublin
criteria again, from top down.
Article 11
1. If a third-country national enters into the territory of a Member State in
which the need for him or her to have a visa is waived, that Member State shall
be responsible for examining his or her application for asylum. 2. The principle
set out in paragraph 1 does not apply, if the third-country national lodges
his or her application for asylum in another Member State, in which the need
for him or her to have a visa for entry into the territory is also waived.
In this case, the latter Member State shall be responsible for examining the
application for asylum.
Example: Han from Hong Kong does not need a visa for the United
Kingdom (Britain). But he applies for asylum in France where his brother
in law runs a business. The United Kingdom has to examine the application
because he would have needed a visa for entering France legally. It
will not ask France to take over Han and his asylum claim.
If your case does not fall under this Article,
please check our list of Dublin criteria again,
from top down.
Article 12
Where the application for asylum is made in an international transit area of
an airport of a Member State by a third-country national, that Member State
shall be responsible for examining the application.
Example: Maria from Cuba has booked a flight
to Russia via Madrid and Paris. She has to change the plane first
in Madrid and then in Paris. She applies for asylum at Paris Charles
de Gaulle airport at the boarder controls for people who want to
leave the international transit area and enter France. France has
to examine the application. It cannot say that it is not responsible
though Maria could have asked for asylum at the Madrid airport as
well. In the context of Dublin II Maria has not ”entered Spain” or ”entered
the European Union” just because she changed her plane in
Madrid!
Attention: There have been cases in which,
according to help organisation for refugees, the right to apply
for asylum in transit areas has not
been respected. We do not know whether these reports are right. But
if ever it happens to you, try to contact such an organisation. In
order to be prepared, search for help organisation for refugees preferably
in advance! (insert link to the page ”Start” at the Number
8.)
If your case does not fall under this Article,
please check our list of Dublin criteria again,
from top down.
Article 13
Where no Member State responsible for examining the application for asylum
can be designated on the basis of the criteria listed in this Regulation,
the first Member State with which the application for asylum was lodged
shall be responsible for examining it.
Example 1: Mohammed from Ghana was trafficked by ship to an unknown
seaport in northern Europe and then by lorry to Norway. He applies
for asylum in Norway. After one month he travels to Ireland by ship
and applies again for asylum at the Dublin seaport. Ireland might
ask Norway to take Mohammed back and to examine his case. Norway is
legally in charge of Mohammed because he first applied for asylum
there. As it cannot be stated where Mohammed first entered the Dublin
area, no other Dublin state might be in charge of him.
We assume that Article 13 does not apply if the asylum seeker has
left the Dublin area between the first and the second application.
See Example 2.
Example 2: Sharif, a liberal student from Iran, had applied for asylum
in Germany two years ago. His application was rejected. He returned
to Iran, but faced again political problems with religious conservatives.
He decided to flee again, but this time to Italy. Italy discovers
that Sharif had applied for asylum two years ago in Germany. Can Italy
ask Germany to take over Sharif and to examine his case? For a couple
of legal arguments we think that Italy cannot do so. But we are not
sure that all Dublin States have the same view.
If your case does not fall under this Article,
please check our list of Dublin criteria again,
from top down.
Article 14
Where several members of a family submit applications for asylum in the same
Member State simultaneously, or on dates close enough for the procedures
for determining the Member State responsible to be conducted together, and
where the application of the criteria set out in this Regulation would lead
to them being separated, the Member State responsible shall be determined
on the basis of the following provisions: (a) responsibility for examining
the applications for asylum of all the members of the family shall lie with
the Member State which the criteria indicate is responsible for taking charge
of the largest number of family members; (b) failing this, responsibility
shall lie with the Member State which the criteria indicate is responsible
for examining the application of the oldest of them.
Always read Article 15 together with this article!
CHAPTER IV HUMANITARIAN CLAUSE Article 15
1. Any Member
State, even where it is not responsible under the criteria set out
in this Regulation, may bring together family members, as well as
other dependent relatives, on humanitarian grounds based in particular
on family or cultural considerations. In this case that Member State
shall, at the request of another Member State, examine the application
for asylum of the person concerned. The persons concerned must consent.
2. In cases in which the person concerned is dependent on the assistance
of the other on account of pregnancy or a new-born child, serious
illness, severe handicap or old age, Member States shall normally
keep or bring together the asylum seeker with another relative present
in the territory of one of the Member States, provided that family
ties existed in the country of origin. 3. If the asylum seeker is
an unaccompanied minor who has a relative or relatives in another
Member State who can take care of him or her, Member States shall
if possible unite the minor with his or her relative or relatives,
unless this is not in the best interests of the minor. 4. Where the
Member State thus approached accedes to the request, responsibility
for examining the application shall be transferred to it. 5. The conditions
and procedures for implementing this Article including, where appropriate,
conciliation mechanisms for settling differences between Member States
concerning the need to unite the persons in question, or the place
where this should be done, shall be adopted in accordance with the
procedure referred to in Article 27(2).
The legal character of Article 15 is different
from all other articles. All other articles ”oblige” Dublin States to accept the
responsibility for an asylum application and to take over the applicant.
Not in all, but in most of the cases, the Dublin States respect this
obligation. Article 15 gives them only the possibility / the option
to take over the responsibility for an asylum applicant and his application.
It is up to the Dublin States whether they follow the advice of Article
15 or not. You can verify this by your own: The wording in Article 15
is different as it only says that Member States (Dublin States) ”may” or ”shall” do
this or that. The consequences of this different legal character are
important:
You should never rely on Article 15, but always check which Dublin
State is responsible if Article 15 is not applied.
If your case does not fall under this Article,
please check our list of Dublin criteria again,
from top down.
