Pro Bono Centre – The Dublin Convention and asylum

Amy Oliver and Libby Anderson are BPP University alumni students from the academic year 20015-2016. In completing their BPTC, they researched the implications of the Dublin Convention on asylum applications. Their work was supervised by BPP Pro Bono Centre’s Supervising Solicitor, Shaila Pal and appears in full below.

History and Aims

The aim of the Dublin system since its conception has been to create a clear, effective framework which assigns responsibility for an applicant’s claim to one Member State (MS), when the claim is made within the collective territories of all the MSs. The rationale behind this is that ‘there should be only one claim […] processed in a single Member State thereby avoiding “asylum-shopping” or the “refugees in orbit” phenomenon’.[1]

The Dublin Convention came into force on 1st September 1997, encompassing all EU MSs, and four non-EU signatories. The Convention was superseded in 2003 by the Dublin II Regulation,[2] and again in 2013 following proposed amendments by the European Commission. The updated Dublin Regulation, EU Regulation No. 604/2013, also known as the Dublin III Regulation, and frequently referred to as ‘Dublin III’, applies to asylum applications made on or after 1st January 2014.[3]

Dublin III determines which MS is responsible for dealing with an asylum seeker’s claim for international protection under the UN Convention Relating to the Status of Refugees 1951 and EC Council Directive 2004/83/EC. It has streamlined the application process, including imposing time limits on MSs, giving applicants the right to appeal decisions,[4] and emphasises respect for family life.[5]

 Overview of Family Reunification Provisions

In the act of fleeing a war-torn country, family groups are frequently split up and lose each other, and may end up split across multiple MSs instead of reaching the intended destination as a unit. Dublin III’s family reunification provisions enable applicants, in certain circumstances, to transfer their asylum claim from one MS to another.[6] For example, in some circumstances an individual in Calais could request transfer to the  United Kingdom rather than having their asylum claim dealt with by France, in order to be together and have their asylum claims assessed by the same authorities.[7]

The criteria in Articles 8-15 provide a systematic method of determining which MS is responsible for an asylum claim. The hierarchy means that, for example, if Country A is deemed responsible by virtue of Article 8, this takes precedence over any responsibility Country B has by virtue of Article 10.

 

Table 1 – the relevant family reunification provisions of Dublin III
Article Provision
2 Defines ‘family members’, ‘relative’ and ‘minor’.
6 The best interests of the child are a primary consideration.
7 The criteria for determining the MS responsible are hierarchical.
8 The MS responsible shall be that where a family member or sibling of unaccompanied minor is legally present, provided they can take care of the minor.
9 – 10 Where the applicant has a family member who has successfully claimed, or is claiming, asylum in a MS, that MS shall be responsible for examining the applicant’s claim.
11 Procedure to be used when relations submit applications for international protection in different MSs simultaneously, or on dates close enough for the procedures to be conducted together. The MS responsible for the whole family is determined by establishing which MS is responsible for taking charge of the largest number of them.
12 Where the applicant has a valid visa, the MS which issued that visa shall be responsible.
13 Where applicants have irregularly entered the State by land, sea or air, that MS shall be responsible.
14 Where applicants have entered a MS in which the need for them to have a visa is waived, that MS shall be responsible.
15 Where an application is made in the international transit area of an airport in a MS, that MS shall be responsible.

 

Articles 16 and 17, while not within the hierarchical criteria set out in Chapter III, are discretionary provisions containing the clauses relating to dependent persons and humanitarian grounds carried over from Dublin II.

Evidence and Proof: Satisfying the requirement for family relationships

Article 7(3) states:

Member States shall take into consideration any available evidence regarding the presence, on the territory of a Member State, of family members, relatives or any other family relations of the applicant, on condition that such evidence is produced before another Member State accepts the request to take charge or take back the person concerned, pursuant to Articles 22 and 25 respectively (emphasis added).

In order to engage the relevant Articles of Dublin III and request family reunification, there must be a family within the definition of Article 2(g), which defines ‘family members’ as being the spouse or unmarried partner of the applicant, minor unmarried children of that couple, or the parent of an applicant who is an unmarried minor.

An applicant’s claim is unlikely to succeed if the relation with whom they are trying to reunite does not fit the Dublin definition. For adult applicants, evidence of the presence in a MS of other relations will only be taken into consideration in particular circumstances: firstly where ‘family members’ (as previously defined) are applicants for international protection in the MS (Article 10), or secondly where dependent or depended-upon children, parents or siblings are legally resident in the MS (Article 16). This restriction is particularly likely to impact upon those applicants coming from cultural backgrounds where members of the extended family play a large role in an individual’s life, and may form familial bonds of equal strength as those within the nuclear family model.

A MS is entitled to consider any evidence available to prove the existence of family relations before accepting responsibility for an asylum claim. Article 22 defines proof as ‘formal proof […] as long as it is not refuted by proof to the contrary’ (Art 22(3)(a)(i)). Circumstantial evidence may be sufficient to demonstrate a MS’s responsibility if it is ‘coherent, verifiable and sufficiently detailed to establish responsibility’ (Art 22(5)). The ‘duties of enquiry, investigation and evidence gathering course through the veins of the Dublin Regulation’.[8] are ‘unavoidably factually and contextually sensitive’, requiring each claim to be individually assessed.[9]  These duties are not absolute, but do require the MS concerned to take reasonable steps to investigate and gather evidence.[10] Failure by the MS to discharge these duties is an infringement of the applicant’s rights.[11]

A family may be refused reunification where uncertainty as to familial relationship exists. Birth certificates, unequivocal photographic evidence or other documents may constitute evidence. If there is no tangible proof of family relationship, the Secretary of State may require a DNA test to prove it.[12] The MS cannot be passive, but should take steps to gather the relevant evidence,[13] to avoid damage to the applicant’s case through impecuniosity or legal uncertainties. This is a double-edged sword: it benefits applicants with genuine biological relationships who are otherwise unable to prove the relationship and who could not afford DNA tests themselves, whilst barring non-genuine applications. On the other hand, it narrows opportunities for applicants presenting with non-biological relationships.

 Credibility

Without proof or circumstantial evidence, the tribunal may consider the applicant’s credibility to assess how likely it is that the family relationship exists. Credibility may be reduced where an applicant has failed to mention a child, family member or significant event at their initial asylum interview, then seeks to use this to persuade the tribunal of a relationship at a later date.[14] In the UK, the applicant’s credibility will also be damaged by various factors often present in asylum claims, such as the failure to produce a valid passport or travel ticket, the use of a falsified passport, or the delay in an applicant’s asylum claim until after an immigration decision on their case or their arrest. Credibility will also be significantly reduced if an applicant for asylum in the UK has failed to take advantage of a reasonable opportunity to make a claim in a safe EU country through which they have passed. The applicant may have failed to make a claim in a different country for a good reason, such as language issues or family connections in the UK, but the burden will lie upon them and their representative to reduce the damage done to their credibility. Importantly, this provision on credibility applies to any ‘statement made by or on behalf of’ the applicant, and therefore a statement made as to a family relationship could be disbelieved if the applicant’s credibility were to be thus damaged.

It is foreseeable that claims made by asylum seekers fleeing danger in their country of origin will often be at risk of being barred at this stage. Physical evidence of family connections may be left behind in the urgency or other circumstances of their flight from home, or lost or destroyed during their journey to the receiving MS. Claims unsupported by evidence are to be assessed in light of the credibility of the applicant, which can be damaged by steps the applicant took in order to reach safety, such as travelling without a passport. Finally, applicants seeking to prove non-biological relationships, such as marriage or adoption, face an uphill struggle.

 The Interplay with Human Rights

Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life”, and forbids interference by public authorities with the exercise of that right save for certain necessary exceptions such as national security. Applicants can use their Article 8 rights to strengthen their case for reunification.

When applying for family reunification under Dublin III, Applicants should plead their strongest possible case at the earliest opportunity, minimising the length and cost of the process, and ensuring their full case is given due consideration. Applicants who intend to rely on the ECHR (for example the Article 8 right to respect for family life) or other humanitarian grounds should plead these in the first instance alongside Dublin family reunification provisions. While these regimes are separate, they are not in competition with each other, and it is often possible to achieve cohesion between the two.[15]

Occasionally, the two regimes do ‘pull in different directions’ and a balance must be struck.[16] Article 8 of the ECHR is a qualified right, allowing for proportionate interferences from alternate regimes; the ECHR is not considered to override Dublin III where the two conflict.[17] An example of the process of balancing ECHR and Dublin rights can be seen in the case of AT v Entry Clearance Officer of Abu Dhabi [2016] UKUT 00227 (IAC), where the need to protect the family as a whole, the fact that family reunification in the UK was a last resort, and the need to promote the public interest were each considered to be a ‘potent factor in the balancing exercise’.[18] In that case the judge used Article 8 as the vehicle for reunification of a refugee with his family.

The case of ZAT v Secretary of State for the Home Department IJR [2016] UKUT 00061 (IAC) concerned seven applicants from Syria. Three members of the family had refugee status in the UK, but the other four were living in ‘the Jungle’ in Calais. Three of them were unaccompanied minors; the fourth was an adult dependent brother of one of the minors who suffered from mental problems and required care. The applicants argued for reunification in the UK until their asylum applications were determined, on the grounds that the refusal of the Secretary of State to allow this would amount to a disproportionate interference with their Article 8 ECHR right to family life.

In ZAT it was the way in which the Dublin provisions were applied that constituted a disproportionate interference, rather than the Regulation being inherently incompatible. The court considered several factors arising from the facts of the case, including the age of the applicants, psychological harm already suffered and further harm likely to be suffered if denied entry, previous enjoyment of family life and the capability of Dublin III to meet the Applicants’ needs, and found that refusal to admit the four relevant applicants to the UK amounted to a disproportionate interference with their Article 8 ECHR rights. The court clarified that there can be a breach of ECHR rights where the Regulation is applied properly, but that ‘the question to be determined is proportionality’.[19] Dublin III is ‘a material consideration of undeniable potency’ in this balancing exercise, [20] but as can be seen from ZAT, it should be considered alongside other important factors central to the case in question.

The case of ZAT demonstrated a particular set of facts where Article 8 arguments prevail over Dublin III, but in most cases arguments under Dublin III and human rights arguments will stand or fall together. There is little point waiting until an appeal to make relevant human rights arguments, because ‘judges will not lightly find that, in a given context, Article 8 [ECHR] operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms’.[21] This means that applicants whose arguments on Dublin grounds have been rejected at the First Decision will rarely succeed in an appeal on human rights grounds: ‘vindication of an Article 8 challenge will require a strong and persuasive case and such cases are likely to be rare’.[22]

 Conclusion

In the first quarter of 2016, the most common country of origin of asylum applicants in the UK was Iran, followed by Iraq, Pakistan, Bangladesh, Afghanistan and Syria.[23] Many of these people enter via Calais. When the family reunification provisions are examined in the context of the Calais refugees, it becomes apparent how rarely they are actually successfully used. Only a very small number of asylum claims are successfully transferred from France to the UK under Dublin III; only 27 transfers took place in 2014-2015.[24]

The Dublin family reunification provisions may assist Calais asylum seekers in reuniting with their families, provided they are able to access legal advice and assistance with their claims. However, it is foreseeable that many of these individuals will face difficulties in substantiating their applications, in light of the bars to reunification discussed above. Applicants who have fled from war-torn countries in circumstances of immediate threat will be particularly affected by the provisions dealing with physical evidence and credibility.[25]

The MS has an investigative responsibility, and is entitled to consider all available evidence when assessing an application, including proof, circumstantial evidence, and the applicant’s credibility. Where an applicant feels their claim has not been satisfactorily dealt with by the family reunification provisions in Dublin III, they may be able to appeal based on their Article 8 ECHR rights, although success on such an appeal will be rare. It was recognised in ZAT that this must turn on the facts of each case,[26] highlighting the need for applicants to receive appropriate professional advice. Genuine applicants should not be put off from using Dublin III or humanitarian grounds to seek family reunification, but they should understand that the process is difficult and will require careful navigation, with limited prospects of success.

 

Index of Cases and Documents Cited

 

Cases

AT and another v Entry Clearance Officer of Abu Dhabi [2016] UKUT 00227 (IAC).

MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department [2016] UKUT 00231(IAC).

ZAT and Others v Secretary of State for the Home Department IJR [2016] UKUT 61 (IAC).

Legislation

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights).

EC Council Directive 2004/83/EC.

Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 art 2 (Dublin III).

UN Convention Relating to the Status of Refugees 1951.

Statistics

Home Office, ‘Immigration Statistics: January to March 2016’ <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/525623/asylum1-q1-2016-tabs.ods>, accessed 30th May 2016.

Eurostat, ‘Outgoing ‘Dublin’ transfers by receiving country (PARTNER), legal provision and duration of transfer’ http://ec.europa.eu/eurostat/, accessed 14th May 2016.

Articles

C Filzwieser, ‘The Dublin Regulation vs the European Convention of Human Rights – A Non-Issue or a Precarious Legal Balancing Act?’ (2006), 2.

Immigration Law Practitioners’ Association, ‘Dublin III Regulation’ (Information Sheet) (January 2014), <www.ilpa.org.uk/data/resources/25755/14.01.10-Info-Sheet_Dublin-III.pdf>, accessed 14th May 2016, 2.

S Peers, Statewatch Analysis, The revised “Dublin” rules on responsibility for asylum-seekers: The Council’s failure to fix a broken system’ (April 2012), 2.

Refugee Council, ‘The ‘Dublin’ Regulation and family unity’ (Policy Briefing) (November 2015), <https://www.refugeecouncil.org.uk/assets/0003/6143/Nov15_Dublin_III.pdf> accessed 30 May 2016, 1.

W Spindler, ed. F Markus, ‘UNHCR calls for comprehensive response to the Calais situation’ (7 August 2015) <http://www.unhcr.org/news/latest/2015/8/55c4d98c9/unhcr-calls-comprehensive-response-calais-situation.html?query=calais>, accessed 30th May 2016.

 

[1] C Filzwieser, ‘The Dublin Regulation vs the European Convention of Human Rights – A Non-Issue or a Precarious Legal Balancing Act?’ (2006), 2.

[2] S Peers, Statewatch Analysis, The revised “Dublin” rules on responsibility for asylum-seekers: The Council’s failure to fix a broken system’ (April 2012), 2.

[3] Refugee Council Policy Briefing, ‘The ‘Dublin’ Regulation and family unity’ (November 2015), <https://www.refugeecouncil.org.uk/assets/0003/6143/Nov15_Dublin_III.pdf> accessed 30 May 2016, 1.

[4]  Ibid.

[5] ILPA Information Sheet, ‘Dublin III Regulation’ (January 2014), <www.ilpa.org.uk/data/resources/25755/14.01.10-Info-Sheet_Dublin-III.pdf>, accessed 14th May 2016, 2.

[6] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 art 2 (Dublin III).

[7] Refugee Council Policy Briefing (Nov 15) 1.

[8] MK v Secretary of State for the Home Department IJR [2016] UKUT 00231(IAC) [38].

[9] MK [40].

[10] Ibid.

[11] MK [44].

[12] Ibid.

[13] MK [45].

[14] MK [10].

[15] ZAT v Secretary of State for the Home Department IJR [2016] UKUT 00061 (IAC) [50].

[16] ZAT 1.

[17] ZAT [50].

[18] AT v Entry Clearance Officer of Abu Dhabi [2016] UKUT 00227 (IAC) [36] – [41].

[19] ZAT [52]

[20] Ibid.

[21] ZAT [52].

[22] Ibid.

[23] Home Office, ‘Immigration Statistics: January to March 2016’ <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/525623/asylum1-q1-2016-tabs.ods>, accessed 30th May 2016.

[24] Eurostat, ‘Outgoing ‘Dublin’ transfers by receiving country (PARTNER), legal provision and duration of transfer’ http://ec.europa.eu/eurostat/, accessed 14th May 2016.

[25] W Spindler, ed. F Markus, ‘UNHCR calls for comprehensive response to the Calais situation’ (7 August 2015) <http://www.unhcr.org/news/latest/2015/8/55c4d98c9/unhcr-calls-comprehensive-response-calais-situation.html?query=calais>, accessed 30th May 2016.

[26] ZAT [57]; app [4].

 

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