Dublin statistics for 2016 have not been made available by the Ministry of Interior.
The Dublin procedure is implemented by Prefectures, therefore it can vary greatly from one Prefecture to another across France and, even within the same Prefecture, practice can vary over time and depending on the cases. For instance, across the Ile-de-France region, several disparities are witnessed between different Prefectures.1
Application of the Dublin criteria
The Dublin procedure is applied to all asylum seekers without exception (as per the Regulation). The Ministry of Interior issued an instruction on 19 July 2016, recalling to all Prefectures that “in the current migration context, no asylum application should be registered as France’s responsibility without prior verification whether France is in fact the responsible country.”2 The official policy of the French Dublin Unit is that it does not transfer unaccompanied children under the Dublin Regulation. Unaccompanied children can however be placed under a Dublin procedure by Prefectures.
In practice, the elements taken into account to determine the Member State responsible can vary from one Prefecture to another but it has been observed that the taking of fingerprints (and therefore the identification of another responsible State) always takes precedence over the application of the other criteria. According to a Circular of 1 April 2011,3 the taking of fingerprints will be decisive in the search for the most likely responsible State.
Practice was expected to evolve with the implementation of the reform of the law on asylum as the Circular of 2 November 2015 stated that “in case another Member State would be responsible for processing the asylum claim, the Prefecture conduct the interview with the asylum seeker in order to establish his or her conditions of entry, his or her itinerary and potential family ties in another Member State.”4 The instruction of 19 July 2016 also reiterates that the presence of family members must always be inquired, even in the case of a Eurodac ‘hit’.5 In practice, 18 months later the entry into force of the law, the taking of fingerprints remains decisive in the determination of the State responsible for processing the asylum claim.
The discretionary clauses
It is difficult to know how the sovereignty clause is applied. It used to be observed that Prefectures sometimes simply delivered a temporary residence permit (which enables the asylum seeker to lodge a regular application for asylum) after having channelled the asylum seeker under the Dublin procedure, without explaining why and without mentioning whether it is under one clause or the other.6
The use of discretionary clauses had been encouraged on several occasions by the National Consultative Commission of Human Rights (CNCDH) in the frame of the dismantlement of the Calais slums.7 The Ministry of Interior has also recommended the use of these clauses to asylum seekers accommodated in CAOs, especially concerning those with family ties in UK.8 For many stakeholders in the field, it had been understood that the discretionary clauses would be applied to asylum seekers joining the CAOs. This general opinion seems to be shared by the Ombudsman, which recalled the positions of the Ministry of Interior at the beginning of the operations of dismantlement of the Calais “jungle”: “According to the information shared by the Ministry, it was obvious that no removal measure could be applied to people orientated to CAOs, especially regarding the Dublin procedure.”9
In the same report, the Ombudsman deplores the fact that these promises have not been kept. As mentioned above, as of 19 July 2016, the Ministry of Interior requested its services to make a systematic application of the Dublin procedure and to proceed effectively to all the transfer decisions.
The procedure which is described in this section is mainly drawn from the current practice in the Rhône département.
When they go to the Prefecture to apply for asylum, all applicants are given an information leaflet explaining, among others, the Dublin procedure; Leaflet A, produced by the EU and translated into several languages.10 They also receive the general guide for asylum seekers, also translated into several languages, and a form to notify their intention to introduce an asylum claim (see section on Registration).
A date for a future appointment is set in order to complete the request for an asylum claim certification. At this meeting which shall take place within 3 days (up to 10 days in case of massive influx of asylum seekers) fingerprints are taken and the abovementioned form is completed.
During the application process, the officers in Prefectures are requested to take fingerprints for each and every asylum seeker above 14 years old and they have a duty to check these fingerprints in the Eurodac system. An exception is made for asylum seekers whose fingerprints are unfit for identification (i.e. unreadable). In this case, asylum seekers will be summoned again and then their claim will be channelled into the accelerated procedure if their fingerprints are still unfit for identification,11 except very specific cases related to a proved illness. The asylum claim cannot be fully registered without the fingerprints have been taken and checked in the Eurodac system. Therefore, the asylum claim certification is only delivered once all information, including fingerprints, has been registered.12
Asylum seekers receive an asylum claim certification specifying the procedure under which they have been placed, for instance the Dublin procedure.13 This asylum claim certification allows asylum seekers placed under Dublin to remain legally on the French territory during the entire procedure for the determination of the responsible State.
Once a claim is channelled under the Dublin procedure, the applicant receives a second information leaflet on the Dublin procedure (Leaflet B, produced by the EU and translated into several languages)14 and a Dublin notice document (“convocation Dublin”) issued by the Prefecture. The applicant does not always get a copy of the interview form. Since November 2014, the Rhône Prefecture has asked applicants to sign a letter written in French and listing all the information given (as requested under Article 4 of the Dublin III Regulation) and the language in which it is given.
The presence of an interpreter at that stage is not guaranteed and practice varies widely depending on the Prefectures e.g. in Nice or in Clermont-Ferrand, an interpreter is called to translate the written information when the applicant does not speak French. The applicant must go to the Prefecture every month with his or her Dublin notice document.
In the Rhône department, the applicant is informed that a take back or a take charge procedure has been initiated through the information written at the back of his Dublin notice document; the information being translated in the applicant’s language. However, there is not necessarily information either about the country which was contacted or on the criteria leading to this referral.
The asylum seeker is not necessarily informed about the date when the country determined to be responsible for his or her application is contacted and sometimes does not know the date of the requested Member State’s reply either. Asylum seekers under the Dublin procedure are formally informed about these dates through the notification of readmission order letter delivered to them once the decision to “take charge” or “take back” has been made. In the Rhône department, this decision is generally explained and indicates the deadline before which the transfer must take place.
The reform of immigration law in March 2016 has instituted the possibility of notifying a house arrest to asylum seekers during the procedure of determination of the responsible Member State. The foreign national can be notified a house arrest for a 6-month period. This house arrest has to be motivated and it is renewable once for the same period of time. The foreign national then has to present him or herself to the Prefecture when asked to. The Prefecture can also seize his or her passport or identity documents.15
In practice, the use of this possibility varies a lot depending on the Prefectures. In Marseille for example, Forum réfugiés - Cosi staff have reported a systematic notification of house arrest to asylum seekers under a Dublin procedure. In Paris and its surroundings, most of asylum seekers placed under the Dublin procedure are indeed under house arrest, although not all Prefectures notify this possibility during the determination procedure.16 In Lyon, it is not systematic.
Information gathered at the time of writing shows that individualised guarantees for Dublin returnees are not checked. Indeed, the case law Tarakhel v Switzerland foresees that States have to check which reception conditions and procedural provisions will be guaranteed to asylum seekers when being returned to the determined responsible States. That should particularly be applied to vulnerable asylum seekers and families.
The individual guarantees are checked during the judicial review before the administrative courts. It is nevertheless impossible to draw a coherent practice from French case law regarding individualised guarantees. The Administrative Court of Appeal of Nancy found on 31 March 2016 that the Hungarian asylum system did not present deficiencies.17 On 31 May 2016, the Administrative Court of Appeal in Lyon also held that the asylum system in Hungary corresponded to the European standards. According to the Court, there was no reason to consider that the Hungarian asylum system did not meet the required criteria for providing decent living conditions to asylum seekers regarding the claimant’s personal situation.18 Two months later, the Administrative Court of Lyon stated, in its decision of 29 July 2016, that the Hungarian asylum system presented systemic failures incompatible with the preservation of individualised guarantees for asylum seekers.19 The Administrative Court of Appeal in Bordeaux took a different decision on 27 September 2016. The Court stated that the conditions in which asylum seekers had to submit their claim in Hungary did ensure an effective examination of their claim.20
Any transfer decision must be motivated and notified in writing to the applicant.21 It shall mention deadlines to appeal and explain the appeal procedure. When the foreign national is not assisted by a lawyer or an association, the main elements of the decision have to be communicated in a language he or she understands or is likely to understand.
When a Member State agrees to take charge of an asylum seeker, 3 transfer modalities are available:
Voluntary transfer initiated by the applicant him or herself: a laissez-passer is provided as well as a meeting point in the host country;
Enforced transfer: the applicant is accompanied by police forces up until the boarding of the plane; or
Transfer under escort: the applicant is accompanied by police forces up until the transfer to the authorities of the responsible State.
The modalities put in place to arrange transfers can vary from one Prefecture to another. In the Rhône department, a refusal of voluntary transfer (refusal to accept the transfer upon notification) does not necessarily result in immediate administrative detention.
Asylum seekers under the Dublin procedure who do not benefit from stable housing receive a first letter from the Prefecture, informing them of the transfer. If they come to the Prefecture, they are placed under house arrest. If not, they receive a second letter from the Prefecture informing them that the transfer deadline may be extended to 18 months. It is therefore only after 2 refusals to come to the Prefecture that the asylum seeker is considered as absconding.
The reform on immigration law enables the Prefect to place under house arrest, systematically, any asylum seeker subject to a transfer decision.22 Accordingly to this measure, the asylum seeker has to respect the limitations defined by the house arrest order. In case the asylum seeker has not obeyed the house arrest, he or she may be placed in administrative detention.23 The Prefect can also request the Judge of Freedoms and Detention (JLD) to make an order to require the assistance of the police to ensure of the presence of the asylum seekers at the place he or she is supposed to remain or to operate his or her transfer.24 The use of these new provisions seems to be quite widespread on the French territory: Paris and its surroundings, Lyon, Marseille, Bretagne, Toulouse or Perpignan. In Clermont-Ferrand, Forum réfugiés – Cosi staff have reported that the Prefect does not place asylum seekers under house arrest.
In practice, the notification of house arrest is not made under the same conditions if the asylum seekers are accommodated or not. When the asylum seekers placed under Dublin procedure are not accommodated, house arrest is notified in person at the Prefecture. Asylum seekers accommodated are notified by the border police at the place they are housed.
Finally, it should be noted that the rate of actual implementation of transfers is strikingly low. During the first eight months of 2016, only 689 transfers were carried out, of a total 14,052 outgoing requests; a 4.9% transfer rate.25
Asylum seekers placed under the Dublin Procedure do not benefit from an examination of their application for asylum by OFPRA and therefore they do not have a personal interview on the substance of their application for asylum in France in the framework of this procedure. The merit of their asylum claim will be examined if France is designated as the responsible State at the end of the process.
There is a specific interview in the Dublin procedure in France. Difficulties arise from the fact this interview is not always conducted in most cases in practice. In Lyon, Bourgogne and Marseille, the interviews are conducted in order to inform the asylum seekers about their rights. In Clermont-Ferrand, asylum seekers are not summoned to an interview at the prefecture, like in many other parts of the French territory, such as Paris and its surroundings for example. The instruction of the Ministry of Interior of 19 July 2016 also recalls that interviews must be systematically conducted, not only limited to cases of a Eurodac ‘hit’.
When the interviews are conducted, interpreters are normally available in practice. It may nevertheless happen that no interpreter is available. In such cases, fellow asylum-seeking nationals as well can be asked for interpretation during the interview, violating then basic confidentiality rules.
Whether they are interviewed or not, all asylum seekers fill in a form during an appointment at the Prefecture to apply for the asylum claim certification.26 The form includes a part entitled “personal interview” which contains information enabling the Prefecture to determine the Member State responsible for protection, in conformity with Annex I of the Commission Implementing Regulation No 118/2014.27 During this appointment, which takes place at the desk in Prefectures (therefore not in offices guaranteeing confidentiality), questions are asked about civil status, family of the applicant, modes of entry into French territory, countries through which the applicant possibly travelled prior to his or her asylum application, etc. Applicants have the possibility to mention the presence of family members residing in another Member State. Some stakeholders in Lyon have reported that no questions were asked about family members during the interview.
This part of the form is written in French and in English. It must be filled in by the applicant in French, during the appointment. Those appointments are not recorded. The asylum applicant does not always receive a copy of the interview form.
Asylum seekers placed under the Dublin procedure can introduce an appeal before the Administrative Court to challenge the decision of transfer. The appeal has to be introduced within 15 days after the asylum seeker has been notified the decision of transfer, compared to 2 months before the 2015 reform. The appeal has suspensive effect. The designated judge has to rule within 15 days after the appeal has been lodged.28
These time limits are shorter in case of detention or house arrest. In such cases, the appeal has to be introduced within 48 hours after the decision of transfer has been notified.29 The judge has to rule within 72 hours after the appeal has been lodged.30
In practice, the shorter time limit for introducing an appeal might prevent seekers who are not accompanied or who are accompanied in orientation platforms from introducing their appeal on time. It will require a bigger organisational effort from orientation platforms not to miss these short deadlines. In addition, it requires stricter and more comprehensive delivery of information from the Prefectures, in order for asylum seekers placed under Dublin procedure to be aware of appeal deadlines from the beginning of the procedure.
Apart from cases where applicants under a Dublin procedure have access to reception facilities through the emergency scheme, usually they only have access to the legal assistance provided by the orientation platforms. For example, in 2016, the platform managed by Forum réfugiés – Cosi provided legal support to approximately 1,208 persons under the Dublin procedure in Lyon, 262 in Clermont-Ferrand, 290 in Nice and 582 in Marseille.
Access to legal aid can be obtained upon conditions of low income. Applicants must request this allowance at the Legal Aid Office of the relevant Administrative Court. This office can ask for further information and a short account of the legal and de facto reasons why the asylum seeker thinks the contested decision is unlawful or unfounded and may, for instance, lead to a violation of his or her fundamental rights. Access to legal aid can be refused if the arguments are deemed unfounded.
There is no current general policy of suspension of transfers. The official position of the Ministry of Interior consists in systematically applying the Dublin Regulation. On several occasions, French administrative courts have suspended the transfer of asylum seekers under the Dubin Regulation to Hungary, even though these suspensions are not systematic.31
Concerning access to the asylum procedure upon return to France under the Dublin Regulation, these applications are treated in the same way as any other asylum applications. If the asylum seeker comes from a safe country of origin, then his or her application is examined under the accelerated procedure. If the asylum application has already received a final negative decision from the CNDA, the asylum seeker may apply to OFPRA for a re-examination only if he or she possesses new evidence (see section on Subsequent Applications).
The conditions of support and assistance of Dublin returnees are really complicated. The humanitarian emergency reception centre (Permanence d’accueil d’urgence humanitaire, PAUH) run by the Red Cross based next to Roissy – Charles de Gaulle airport faces several difficulties with Dublin returnees.32 This centre initially aims to provide people released from the transit zone, after a court decision, with legal and social support. For many years, without any funding to implement this activity, the centre has received Dublin returnees at their arrival at the airport. The returnees are directed towards the centre by the police or the airport services.
Upon their arrival at the airport, the border police issues a “sauf-conduit” which mentions the Prefecture where the asylum seekers have to submit their claim. This prefecture may be located far from Paris, in Bretagne for example. The returnees have to join the Prefecture by their own; no organisation or official service meets them. The centre cannot afford their travel within the French territory due to its funding shortage.
When the relevant Prefectures are in the Paris surroundings, two situations may occur.
(1) On one hand, some Prefectures do not register the asylum claims of Dublin returnees and channel them to orientation platforms. As it has already been mentioned in the Registration section, access to these platforms is really complicated and some returnees have to wait several weeks before getting an appointment with the organisations running them.
(2) On the other hand, some Prefectures do immediately register the asylum claims of returnees and channel them to OFII in order to find them an accommodation. The PAUH is the only entity receiving and supporting Dublin returnees upon their arrival in France by Charles de Gaulle airport. Considering the systemic difficulties encountered by the orientation platforms in Paris and its surroundings, several Dublin returnees, after registering their claim, are apt to turn to it in order to complete their asylum claim form or to find an accommodation.
In Lyon, the situation is similar upon arrival of returnees at Saint-Exupéry airport. The returnees are not received at their arrival and not supported. They are deemed to present at the orientation platform (PADA) run by Forum réfugiés – Cosi to be registered before submitting their claim. They encounter the same difficulties in terms of accommodation to the conditions in Paris.
Whereas most Dublin transfers to France are upheld by other countries, in some limited cases, individual transfers were suspended in Belgium and the Netherlands in 2016.33
- 1. See La Cimade, ‘Dublin : état des lieux et conseils pratiques en Ile de France’, 5 January 2017, available in French at: http://bit.ly/2iUiHaz.
- 2. Ministry of Interior, Instruction NOR: INTV1618837J of 19 July 2016 relating to the application of the Dublin III Regulation – Resort to house arrest and administrative detention in the context of execution of transfer decisions, available in French at: http://bit.ly/2jI7dEd, 2. Unofficial translation by the author.
- 3. Circular of 1 April 2011 on the application of Council Regulation 343/2003, the so-called ‘Dublin Regulation’. Implementation of accelerated procedures of some asylum claims mentioned in art L741-4 Ceseda, available in French at: http://bit.ly/1dBnfeg.
- 4. Circular of 2 November 2015 on the implementation of the Law of 29 July 2015 on the reform of the asylum law, available in French at: http://bit.ly/1RaHGPQ.
- 5. Ministry of Interior, Instruction NOR: INTV1618837J of 19 July 2016 relating to the application of the Dublin III Regulation – Resort to house arrest and administrative detention in the context of execution of transfer decisions, 3.
- 6. Dublin Transnational Network, Dublin II Regulation: Lives on Hold: French report, December 2012, available at: http://bit.ly/1UgeKXu, 35-37.
- 7. CNCDH, Avis de suivi sur la situation des migrants à Calais et dans le Calaisis (Survey notice on migrants situation in Calais and in Calaisis), 7 July 2016, available in French at: http://bit.ly/2iEsAJB.
- 8. Ministry of Interior and Ministry of Housing, Joint notice on the implementation of CAOs, 7 December 2015, available in French at: http://bit.ly/2k3BFIa.
- 9. Ombudsman, Rapport d’observation : démantèlement des campements et prise en charge des exiles Calais – Stalingrad (Paris) (Survey report: camps dismantlement and support of exilees Calais – Stalingrad (Paris)), 20 December 2016, available in French at: http://bit.ly/2jONLpl. Unofficial translation by the author.
- 10. European Commission and Migrationsverket, Leaflet A: “I have asked for asylum in the EU – Which country will handle my claim?” 2014, available at: http://bit.ly/1PSuhgz.
- 11. Article L.723-2 Ceseda.
- 12. Circular of 2 November 2015 on the implementation of the Law of 29 July 2015.
- 13. Articles L.741-1 and L.742-1 Ceseda.
- 14. European Commission and Migrationsverket, Leaflet B: “I am in the Dublin procedure – What does this mean?”, 2014, available at: http://bit.ly/1dBoCd2.
- 15. Article L.742-2 Ceseda, as amended by Law n. 2016-274 of 7 March 2016.
- 16. See La Cimade, ‘Dublin : état des lieux et conseils pratiques en Ile de France’, 5 January 2017, available in French at: http://bit.ly/2iUiHaz.
- 17. Administrative Court of Appeal of Nancy, Decision No 15NC00961, 31 March 2016.
- 18. Administrative Court of Appeal of Lyon, Decision No 15LY03569, 31 May 2016.
- 19. Administrative Court of Lyon, Decision No 1605495, 29 July 2016.
- 20. Administrative Court of Appeal of Bordeaux, Decision No 16BX00997, 27 September 2016.
- 21. Article L.742-3 Ceseda.
- 22. Article L.561-2 Ceseda, as amended by Law n. 2016-274 of 7 March 2016.
- 23. Ibid.
- 24. Ibid.
- 25. National Assembly, Notice N°4128 regarding the 2017 financial draft law, 13 October 2016, available in French at: http://bit.ly/2k45OHp.
- 26. Scheduled in theory within 3 calendar days after the asylum seekers have voiced their request to be admitted on the territory on the ground of an asylum claim.
- 27. Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 amending Regulation (EC) No 1560/2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2014 L 39/1.
- 28. Article L.742-4 Ceseda, as amended by Law n. 2016-274 of 7 March 2016.
- 29. Ibid.
- 30. Article L.512-1, III Ceseda, as amended by Law n. 2016-274 of 7 March 2016.
- 31. Administrative Court of Appeal of Nancy, Decision No 15NC00961, 31 March 2016; Administrative Court of Appeal of Lyon, Decision No 15LY03569, 31 May 2016; Administrative Court of Lyon, Decision No 1605495, 29 July 2016; Administrative Court of Appeal of Bordeaux, Decision No 16BX00997, 27 September 2016.
- 32. Information collected during an interview with the Director of the centre, 2016.
- 33. Belgian Council of Alien Law Litigation, Decisions No 166 359, 25 April 2016 and No 171 040, 30 June 2016; Dutch District Court of the Hague, Decision AWB 16/10465, 8 June 2016.