Dublino reglamentas – nauja atsakomybės už prieglobsčio prašytojus paskirstymo sistema Europos Sąjungoje?

Abstract

The Article analyses the system whereby responsibility for examination of asylum applications submitted in the European Union is determined. New legal act – Council Regulation 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 (hereafter – Dublin Regulation) was adopted on 18 February 2003. It replaced the previously applied Dublin Convention of 1990. Thus the main objective of this Article is to answer, based on analysis of problems related to the application of Dublin Convention and the provisions of Dublin Regulation, whether the later remedies the gaps of the Convention and its’ implementation, thereby establishing a new system for distributing asylum seekers in the European Union? Having analysed the both documents, it is evident that the Regulation differs to a certain extent. First of all, a new provision concerning minors, unaccompanied by their parents or other legal representatives, is introduced: the Regulation allocates the responsibility for examination of claim of such a minor to the state hosting a family member of a minor. If such family members were not present, then the state where the minor applied for asylum would be responsible. Also, an another new criterion for determining responsibility is introduced by the Regulation – toleration of illegal stay in a Member State for a period of more than 5 months. Secondly, it can be concluded that the Regulation partially resolves some of the difficulties related to implementation of the family reunification criteria in the Convention. It does not require that family member was granted refugee status in a Member State before family reunification criteria could be applied. One more family related provision in the Regulation deals with prevention of separation of family members in situations when they apply for asylum around the same time in the same Member State, but differing criteria are being applied to them. Thirdly, time limits relating to submission of requests to take charge of the applicant and reply to such requests are shortened in the Regulation. On the other hand, time limits to transfer the applicant to another Member State have been extended. Therefore the process for determination of responsibility did not become shorter, if compared with the Convention system. It can be said that as a result of modifications, the Regulation did solve some of the gaps in the Dublin Convention itself. However, it is equally clear that it did not solve all problems of its practical application. For instance, the Regulation does not provide for suspension against execution of transfer decision, if the appeal against it is submitted. Though a right of appeal is explicitly recognised. This does not solve the practical problem, challenged several times at Member States’ courts, where legality of transfers under the Dublin Convention was questioned. Also, the Regulation retains a possibility to return an asylum seeker to a third country without at the same time providing guarantees ensuring that asylum application is examined in a third country upon such return. Furthermore, another problematic aspect of Convention’s application, raised in the courts and related to the varying protection standards in the Member States, continues to prevail. However, the solution to this concern is far beyond the application of the Regulation. Meanwhile, it is the objective of EU asylum law harmonisation, which could realistically be achieved not only with the adoption of a directive on harmonised application of refugee definition, but also having implemented this document in practice. Before achieving this, asylum seekers will likely continue questioning the transfer under the Regulation to those Member States, where the level of refugee protection is lower than in a Member State where the asylum application was submitted. Even more acute it may become when new countries become members of the EU, as their refugee protection standards may not be fully compatible with international ones or those of the EU.
To sum, the system for determination of responsibility introduced by the Regulation is largely based on the principles of the Dublin Convention, thus would unlikely be considered a new responsibility sharing system in the European Union. However, the system is improved to a certain extent. Moreover, there are some expectations that the application of Regulation will be improved as a result of recent introduction of „Dublinet“ – electronic network for transmission of data, which facilitates communication among the Member States. Also, the functioning of EURODAC system may have an impact on the improvement of responsibility sharing system. However, the effectiveness of Regulation will be possible to assess only when the practice of its application is formed.