NOVEMBER 2012
Cecilia Wikström
Member of the European Parliament and
Rapporteur on the recast of the Dublin Regulation
on
“The key tenets and implications of the proposed amendments to
the Dublin Regulation and the Reception Conditions Directive”
Ü Eurasylum: In September this year, the European Parliament’s Committee on Civil Liberties (LIBE) agreed to the proposed recast of the Dublin Regulation and the Reception Conditions Directive. Can you guide us through some of the most noteworthy amendments entailed by this recast?
Ü Cecilia Wikström: As the rapporteur for the Dublin regulation I am very happy that we are so close to an adoption of the Regulation, since the process has been very long and complicated, with the file being blocked in the Council for several years. The Parliament has sought to include a clear reference to solidarity with Member States under pressure and an obligation to protect the asylum seekers’ fundamental rights. If we are serious in building up a Common European Asylum System, we must also take a common responsibility. Today 10 Member States take 90% of the asylum seekers coming to Europe, which means there are 17 Member States that could do a lot more. Solidarity in this field is key to a sustainable asylum system. It is solidarity to assist those Member States facing a particular pressure, but it is also solidarity to correctly implement our common regulations and directives and live up to the standards.
In the new regulation we have inserted a provision that would make it impossible to transfer asylum seekers to Member States where there are systematic flaws in the asylum procedure that could result in inhuman and degrading treatment. This is in line with recent rulings from both the European Court of Justice and the European Court of Human Rights. We have also included a new early warning mechanism that will help to find dysfunctions and flaws in the national asylum systems before they become fully-fledged crises. The intention of this new mechanism is to avoid new situations as in Greece where the asylum system has collapsed.
As regards the Reception Conditions Directive, the outcome of the negotiations also provides for a number of improvements. Asylum seekers can now be detained only on a limited number of clearly defined grounds. The current Directive does not include any detention grounds and thus leaves it open to Member States’ interpretation. This change is a crucial improvement which should avoid catch-all grounds and lack of legal certainty and which should lead to better harmonisation among Member States. The new text also provides for better detention conditions with access to open-air spaces and with asylum seekers being kept separate from ordinary prisoners. Minors can only be detained as a last resort and with a number of additional safeguards.
Access to the labour market for asylum seekers will have to be granted within 9 months from filling in their application, compared to one year under the current Directive. During the negotiations the issue of identification of vulnerable persons was crucial. The Parliament insisted on this point, stressing the importance of having the certainty that an individual assessment of vulnerability is carried out in order to identify special reception needs, such as the need for medical or psychological help.
Ü Eurasylum: Despite acknowledging a range of positive elements in the amended Reception Directive, a number of commentators have pointed to some of its potential drawbacks, particularly as regards the detention of unaccompanied asylum-seeking children “in exceptional circumstances”, the detention of asylum seekers “to determine identity and nationality”, and the detention of asylum seekers in prison accommodations. Can you comment on the extent to which some of these elements may indeed prove challenging in the future?
Ü Cecilia Wikström: It has to be said that both the Parliament and the Commission wanted to see much stronger provisions for detention and there was a strong political will in the Parliament not to allow the detention of minors. It is regrettable that the final text is not as strong on this issue as we would have hoped for, but this is the result of difficult negotiations where everybody had to compromise. I welcome the fact that the grounds for detention are now specified and that Member States will no longer be able to detain asylum seekers for just any reason they may come up with. This provides for more legal certainty as well as better harmonisation among Member States. I also welcome the fact that, as a general rule, detention shall take place in specialised detention facilities and that asylum seekers shall be kept separated from ordinary prisoners. The fact that some Member States have not had sufficient places in detention centres for asylum seekers and therefore have had to place them in prisons, has been problematic. It is now up to the Member States to implement this Directive correctly and this includes providing for sufficient places in special detention centres.
I would have preferred to see that minors could not be detained under any circumstances. However, as a compromise with the Council, they can now be detained only as a last resort and provided that it is in their best interest. I personally find it very difficult to imagine a situation where it could be in a child’s best interest to be detained. However, detention shall only be for the shortest possible period and all efforts shall be made to release minors and place them in more suitable centres. In terms of unaccompanied minors they can only be detained in exceptional circumstances and they shall not be kept in prison. They shall be provided with staff and facilities adapted to their needs and they shall be kept separately from adults.
Again I have to state that it is now up to the Member States to implement this in a correct way and make sure that exceptional circumstances will indeed remain exceptional. Otherwise I believe we will see a lot of court cases which I expect even the Member States will want to avoid.
Ü Eurasylum: In a statement following LIBE’s agreement to the proposed recast, you indicated that the new Dublin regulatory framework would provide “stronger legal guarantees for individual refugees and clear rules for member states to live up to”. Can you list and comment on some of these new legal guarantees and rules?
Ü Cecilia Wikström: There are many improvements and clarifications of the rules for Member States. In the current Directive deadlines and responsibilities are sometimes unclear. For example, if Member State A sends a request to Member State B to take back an applicant and member State B does not reply, then what happens? And who is responsible for the transfer costs etc.? There are many unclear situations that have led to asylum seekers being caught in a limbo where no one is examining their request for asylum and where the procedure can go on for a long time. Now all these responsibilities and deadlines are clearly defined and this should help both asylum seekers and the relevant administrations in the Member States.
When it comes to stronger protection for asylum seekers, there are a number of substantial improvements. For example, there is now a right to a personal interview in the Member State where the asylum seeker is present in order to help determine which Member State is responsible for processing the application. Furthermore, EU countries will now be obliged to provide free legal assistance on request in case there is a review of a transfer decision.
Member States will also have to provide more information to asylum seekers about their rights. One achievement I feel very strongly about is the right for unaccompanied minors to reunite not only with their parents, but now also with siblings, grandparents, aunts and uncles. The new text also allows married minors to reunite with parents or other adults responsible for them when they are not accompanied by their spouse.
Asylum seekers will have the right to appeal against a decision to be transferred to another EU state. The Parliament has also fought for them to have the right to remain in the Member State where they are based, until a decision on the appeal is issued. We are very happy to see that this provision has been included in the agreed text. The new text also introduces a single ground for detention in cases where there is a significant risk of absconding. After strong requests by the Parliament, the detention period has now been limited to a maximum of three months.
One thing I regret is that we as legislators were not able to find a solution about which Member State should be responsible for an unaccompanied minor. The current regulation is unclear on this point and while we have had the opportunity to clarify this, we have failed. The Parliament wanted it to be the country where the unaccompanied minor lodged his or her most recent application while the Council wanted it to be the country of first application. There is a pending court case on this issue and we have adopted a common declaration, inviting the Commission to return to this issue when we have the decision from the court. It is truly regrettable that we have left this important decision to the court, instead of taking it in our own hands.
