Largely unnoticed by many, on 1 January 2014 a new legal regime entered force regarding the allocation of responsibility for considering asylum claims from persons who have entered the country from elsewhere in the European Union: 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, or, as it will doubtless come to be known amongst practitioners, “Dublin 3”. Learning from problems identified under the Dublin 2 Regulation, with which all asylum lawyers will be well familiar, it introduces a number of new provisions which may fundamentally change the way that third country cases are considered in future.
Amongst the most important procedural developments are what appears to be a requirement that in all cases there be an effective remedy against transfer both because of conditions in the country of return, but also based on the allocation of responsibility (thereby suggesting that the conclusion established by courts of every level vis-á-vis Dublin 2 transfers that this latter question is not a justiciable issue and that the Regulation does not give rights to individuals – see eg YZ, G, AR (Iran), and Abdullahi – will not be applicable in Dublin 3 cases), and a requirement that the authorities inform an asylum seeker of the consequences of moving between Member States and that they give a clearly opportunity to submit information regarding the presence of family members and relatives; detention may only take place where there is a significant risk of absconding, and not merely because a person is within the Dublin process, and supervised and escorted transfers must take place humanely and reflecting the need to respect the person’s dignity; and relevant medical information must be passed between States where the returnee has suffered torture, physical, psychological or sexual violence, and the receiving state must ensure these are adequately addressed.
As to the substantive law of third country returns, the “systemic failure” test established by the European courts has now received statutory force; children can be subjected to third country proceedings only after a Member State has taken into account any family reunion possibilities, their well-being and social development, and their views; family members are to have their asylum claims considered in the same Member State where this is reasonably possible; there is a presumption that where a person is dependant on the assistance of a legally resident child, sibling or parent, the country where the latter are located will be responsible, and family and cultural considerations must also be taken account in assessing responsibility.
Also on the third country front, on 2 January 2014 UNHCR declared that the asylum system in Bulgaria was in a state of systemic failure, effectively making it impossible for asylum seekers to be returned there for their asylum claims to be considered given that this is the benchmark identified by the European Courts as marking the point at which returns are likely to amount to inhuman and degrading treatment. Meanwhile all Europe holds its breath pending the Grand Chamber proceedings in Tarakhel which will revisit the appropriate test for determining when reception conditions in a third country fall below minimum acceptable standards, with particular reference to the circumstances in which asylum seekers should be returned to Italy.