No data on Dublin is available for 2015.
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.
Application of the Dublin criteria
The Dublin procedure is applied to all asylum seekers without exception (as per the Regulation). 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 2011,1 the taking of fingerprints will be decisive in the search for the most likely responsible State.
The practice might evolve with the implementation of the reform of the law on asylum as the Circular of 2 November 2015 states 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”.2
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.3
In Paris, the humanitarian clause seemed to be used for asylum seekers who were deemed not fit for travel and for whom no transfer could be carried out. These clauses are not widely used in any case in France. For example, in the prefecture of Nice, an asylum seeker who was ill was transferred to Poland whilst his wife had applied for asylum in France.
No recent information allows us to describe a new practice regarding the use of the discretionary clauses.
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.4 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 above-mentioned 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,5 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.6
Asylum seekers receive an asylum claim certification specifying the procedure under which they have been placed, for instance the Dublin procedure.7 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)8 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 the law on asylum states that during the responsible State determination procedure, 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.9 The Circular of 2 November on the implementation of the reform of the asylum law states that the new provisions in the Law of 29 July 2015, allows to put asylum seekers under Dublin procedure under house arrest from the very beginning of the procedure and thus before the notification of transfer and that “in order to guarantee the effective implementation of transfers, [Prefecture] should make sure to use these provisions”. This could lead to a quasi-systematic notification of a house arrest to asylum seekers under Dublin procedure.
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.
Any transfer decision must be motivated and notified in writing to the applicant.10 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:
(a) Voluntary transfer initiated by the applicant him or herself: a laissez-passer is provided as well as a meeting point in the host country;
(b) Enforced transfer: the applicant is accompanied by police forces up until the boarding of the plane; or
(c) 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.
Finally, it should be noted that the rate of actual implementation of transfers is strikingly low. Whereas the French authorities had received 3,281 agreements from other Member States to take charge or take back asylum seekers under the Dublin Regulation, only 470 transfers were carried out in 2014 (a 14.32% transfer rate).11
The situation of Dublin returnees
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).
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 no specific interview in the Dublin procedure in France. All asylum seekers fill in a form during an appointment at the Prefecture to apply for the asylum claim certification.12 The form includes a part entitled “personal interview” which contains information enabling the Prefecture to determine the State responsible for protection, in conformity with Annex I of the Commission Implementing Regulation No 118/2014.13 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, modalities 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.
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. The presence of an interpreter during this appointment can vary; translation into the applicant’s language is often done by a compatriot. 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 reform. The appeal has a suspensive effect. The designated judge has to rule within 15 days after the appeal has been lodged.14
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.
The decision to place the asylum seeker under house arrest can be challenged before the administrative court too. The asylum seeker has 48 hours to appeal and the judge has to take a decision within 72 hours. This appeal has suspensive effect.
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 Lyon, the platform managed by Forum réfugiés-Cosi provided legal support to approximately 240 persons under the Dublin procedure in 2015.
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.
As a consequence of the European Court on Human Rights (ECtHR)’s ruling in MSS v Belgium and Greece,15 the Ministry of Interior has asked the Prefects to stop, on a temporary basis and awaiting further instructions, transfers towards Greece in a telegram dated 14 March 2011. Consequently, Prefectures must apply the sovereignty clause of the Dublin Regulation and therefore declare France as the responsible State for examining the asylum application.16 As a general rule, applicants who should have been transferred to Greece according to the Dublin Regulation have direct access to a temporary residence permit with a view to lodging their application for asylum in France. It happens sometimes however that the Prefecture looks for another Member State which could be the next one responsible for the applicant; there are cases where Hungary was found to match one of the responsibility criteria for instance.
In addition, several times in 2013, French administrative courts suspended the transfer of asylum seekers under the Dublin Regulation to Hungary. The Council of State confirmed on 16 October 2013 an administrative court decision to suspend the transfer of a Mauritanian asylum seeker to Hungary, arguing that “bearing in mind the treatment this person had received during his detention at the Debrecen centre, there was a serious risk that his asylum application would not be examined by the Hungarian authorities in a way complying with the safeguards required by the respect for the right to asylum”.17 However, Dublin transfers to Hungary are far from being systematically suspended and it also depends on the Prefecture. For instance, in the Ain Département transfers to Hungary are systematically cancelled.
- 1. 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.
- 2. 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.
- 3. Dublin Transnational Network, Dublin II Regulation: Lives on Hold: French report, December 2012, available at: http://bit.ly/1UgeKXu, 35-37.
- 4. 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.
- 5. Article L.723-2 Ceseda, as amended by the Law of 29 July 2015.
- 6. Circular of 2 November 2015 on the implementation of the Law 29 July 2015.
- 7. Articles L741-1 and L.742-1 Ceseda, as amended by the Law of 29 July 2015.
- 8. European Commission and Migrationsverket, Leaflet B: “I am in the Dublin procedure – What does this mean?”, 2014, available at: http://bit.ly/1dBoCd2.
- 9. Article L.742.2, as amended by the Law of 29 July 2015.
- 10. Article L.742-3, as amended in the Law of 29 July 2015.
- 11. Eurostat, Dublin statistics 2014.
- 12. 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.
- 13. 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.
- 14. Article L.742-4 Ceseda, as amended by the Law of 29 July 2015.
- 15. ECtHR, MSS v Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011.
- 16. Circular of 1 April 2011 on the application of the Dublin Regulation.
- 17. Council of State, Decision n°372677, 16 October 2013, available at: http://bit.ly/1FXxK2m.