Dublin II Regulation, Unaccompanied Children, and The Continuing EU Immigration Debate

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Austin Aneke

In 2003 the EU adopted a common procedure for dealing with asylum applications within the territory of the European Union. The procedure known as Dublin II Regulation put mechanisms and criteria in place for determining member states responsible for dealing with particular asylum applications. The EURODAC finger print matching system constitutes a complementary and important tool for the implementation of the Dublin II Regulation, and both make up the Dublin system.

The “taking charge” and “taking back” policies that deal with adult and unaccompanied children netted by the Dublin system, have resulted in European wide transfer of about 30,000 third country nationals from one European country to another.

However a critical evaluation of the system already considered successful across Europe, has put the mode of implementation of the system into serious question. For example, the Council Regulation (EC) No 343/2003 which introduced the system, automatically presumed that all EU members respected the principle of non-refoulement i.e. ( nobody is sent back to persecution), and thus considered all EU countries as safe for third country nationals. Is this still the case? How about Greece?

Furthermore, is the original objective of rapid processing of applications and determination of responsibility still in play? Has the system helped to preserve family unity as intended? Are member states derogating on the responsibility criteria in order to facilitate the bringing of family members together, especially where it is necessary on humanitarian grounds? Are there effective bilateral procedures aimed at improving communications between states in order to reduce time for processing transfers? Do member states behave in ways that guarantee “their obligations under instruments of international law to which they are party”?

Moreover, we may ask whether the implementation of the system so far still guarantees the observance of the right to asylum under article 18? Do member states regularly apply the “sovereignty” clause which empowers member states to decide to examine an asylum application even though it may not be responsible according to the provisions of the Regulation? Are the processing of applications relating to unaccompanied children done in their best interest?

The answers to the above questions could be found in the reviews and Court cases on the matter. It has since been found that there is no uniformity in the mode of assessment of the protection needs of unaccompanied asylum seeking children among the various states. Moreover there is ambiguity in the definition of close family members leading to varying treatment of unaccompanied children. Furthermore member states are not obliged to proactively seek out family members of the minors, and most times the children depend on their own knowledge of the location of their parents. Unfortunately, most times their parents are in the home countries they left behind. Unaccompanied children also have no consistent support in terms of independent advocates, guardians or agencies ensuring and guaranteeing their best interest.

On Greece, most NGOs are concerned about Greece’s policy on “interrupted Claims”. Greece treats all returnees under the Dublin II Regulation as having abandoned their asylum applications, and do not re-open such applications. This has also led to allegations of maltreatment, exploitation and intimidation of returnee asylum seekers.

The most recent and significant matter of the Dublin II Regulation is the case of MA & Ors (on application of) V Secretary of State for UK Home Department. The argument here is that in articles 5.2 and 4.1 -which deal with adult transfers, the draftsman used the phrase “first lodged”. In essence if an adult first lodged an application in a member state before proceeding to another, he/she will understandably be subject to transfer back to the original EU country. On the other hand it has been argued that such phrase was not used in article 6 which dealt with unaccompanied children. In essence, any indication of “has lodged” regarding children means “has most recently lodged”.

Bindmans LLP, the law firm making this argument is therefore saying that it is unlawful to deport unaccompanied minors back to other EU countries under the “Dublin” law. This matter has been referred to EU Court of Justice (CJEU), and it may soon be concluded that as a matter of construction there is no power to remove children in these circumstances.

If this happens, the only alternative remaining, maybe, will be the European Return Platform for Unaccompanied Minors (ERPUM). It is a project that aims to find new ways of returning unaccompanied asylum seeking minors of third countries, who have failed, in their asylum applications in the EU. As Europe’s political mood moves more to the right, the only hope for vulnerable immigrants/asylum seekers may be the Courts and Civil Rights groups.

first published in Huffington Post

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