EUROPEAN COMMISSION Brussels, 4.5.2016 COM(2016) 270 final/2 2016/0133(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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)



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The EU is working towards a more sustainable approach to managing migration, both for people who need international protection and for those who move for other reasons. The approach aims to end irregular and dangerous movements and the business model of smugglers, and to replace these with safe and legal ways to the EU for those who need protection. Protection in the region and resettlement from there to the EU should become the model for the future, and best serves the interests and safety of refugees. However it remains likely that in the short and medium term people will continue to arrive at the EU's external borders. Those who do not claim international protection should be returned. Those who do claim asylum should have their claim processed efficiently, and be assured decent reception facilities and support in the Member State responsible to deal with their applications, whilst that process is ongoing and beyond that if their claims are found to be grounded. Recent experience has however shown that large-scale uncontrolled arrivals put an excessive strain on the Member States' asylum systems, which has led to an increasing disregard of the rules. This is now starting to be addressed with a view to regaining control of the present situation by applying the current rules on Schengen border management and on asylum, as well as through stepped up cooperation with key third countries in particular Turkey. However the situation has exposed more fundamental weaknesses in the design of our asylum rules which undermine their effectiveness and do not ensure a sustainable sharing of responsibility, which now need to be addressed. On 6 April 2016, the Commission set out its priorities for improving the Common European Asylum System (CEAS) in its Communication "Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe". The Commission announced that it would progressively work towards reforming the existing Union framework on asylum, to establish a sustainable and fair system for determining the Member State responsible for examining asylum applications, reinforce the Eurodac system, achieve greater convergence in the asylum system, prevent secondary movements, and establish an enhanced mandate for the European Asylum Support Office (EASO). The need for reform has been widely acknowledged, including by the European Parliament and the European Council. This proposal on the reform of the Dublin III Regulation is part of the first instalment of legislative proposals which will constitute a major reform of the CEAS. This first package also includes a proposal for recast of the Eurodac Regulation and a proposal for establishing a European Union Agency for Asylum. The Eurodac proposal includes the necessary changes to adapt the system to the proposed Dublin rules, in line with its primary objective to serve the implementation of the Dublin Regulation. Eurodac shall also become a database for wider immigration purposes, facilitating return and the fight against irregular migration. The proposal for a European Union Agency for Asylum aims to improve the implementation and functioning of the CEAS by building on the work of the European Asylum Support Office and further develop it into an Agency which should be responsible for facilitating functioning of the CEAS, for ensuring convergence in the assessment of applications for international protection across the Union, and for monitoring the operational and technical application of Union law. A second stage of legislative proposals reforming the Asylum Procedures and Qualification Directives, as well as the Reception Conditions Directive will follow, to ensure the full reform of all parts of the EU asylum system, including to avoid the disruption of the Dublin mechanism by abuses and asylum shopping by applicants for and beneficiaries of international protection. In particular, asylum procedures will have to speed up and become more convergent, more uniform rules are needed on the procedures and rights to be offered to beneficiaries of international protection and reception conditions will have to be adapted, to increase as much as possible harmonisation across the Member States. As set out in its 6 April Communication, the migratory and refugee crisis exposed significant structural weaknesses and shortcomings in the design and implementation of the European asylum system, and of the Dublin rules in particular. The current Dublin system was not designed to ensure a sustainable sharing of responsibility for applicants across the Union. This has led to situations where a limited number of individual Member States had to deal with the vast majority of asylum seekers arriving in the Union, putting the capacities of their asylum systems under strain and leading to some disregard of EU rules. In addition, the effectiveness of the Dublin system is undermined by a set of complex and disputable rules on the determination of responsibility as well as lengthy procedures. In particular, this is the case for the current rules which provide for a shift of responsibility between Member States after a given time. Moreover, lacking clear provisions on applicants' obligations as well as on the consequences for not complying with them, the current system is often prone to abuse by the applicants.

The objectives of the Dublin Regulation – to ensure quick access of asylum applicants to an asylum procedure and the examination of an application in substance by a single, clearly determined, Member State – remain valid. It is clear, however, that the Dublin system must be reformed, both to simplify it and enhance its effectiveness in practice, and to be equal to the task of dealing with situations when Member States' asylum systems are faced with disproportionate pressure. This proposal is a recast of 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 ("the Dublin III Regulation"). In particular, this proposal aims to: enhance the system's capacity to determine efficiently and effectively a single Member State responsible for examining the application for international protection. In particular, it would remove the cessation of responsibility clauses and significantly shorten the time limits for sending requests, receiving replies and carrying out transfers between Member States; ensure fair sharing of responsibilities between Member States by complementing the current system with a corrective allocation mechanism. This mechanism would be activated automatically in cases where Member States would have to deal with a disproportionate number of asylum seekers; discourage abuses and prevent secondary movements of the applicants within the EU, in particular by including clear obligations for applicants to apply in the Member State of first entry and remain in the Member State determined as responsible. This also requires proportionate procedural and material consequences in case of non-compliance with their obligations. Targeted consultations with the European Parliament and the Member States, including on the basis of the 6 of April Communication, as well as the United Nations High Commissioner for Refugees (UNCHR) and civil society confirmed divergent views on the nature and extent to which the Dublin Regulation should be reformed. Against this background, the Commission carefully assessed the arguments brought forward. The Commission came to the conclusion that the current criteria in the Dublin system should be preserved, while supplementing them with a corrective allocation mechanism to relieve Member States under disproportionate pressure. At the same time, the new Dublin scheme will be based on a European reference system from the start of its implementation with an automatically triggered corrective solidarity mechanism as soon as a Member State carries a disproportionate burden. At the same time, other fundamental changes are introduced in order to discourage abuses and prevent secondary movements of the applicants within the EU. Consistency with existing policy provisions in the policy area The Dublin system is the cornerstone of the Common European Asylum System and deals with the determination of which Member State is responsible for an asylum claim. It operates through the legal and policy instruments in the field of asylum, in particular asylum procedures, standards for the qualification for individuals for international protection, and reception conditions, as well as relocation and resettlement. Progress is being stalled by the fact that the track record of implementation of EU law in the field of asylum is poor. Ensuring the full and swift implementation by Member States of EU law is a priority. In particular, the Commission has been working over the last years with the Greek authorities to prioritise a normalisation of the situation since Dublin transfers were suspended in 2010. To that end, the Commission addressed a recommendation to Greece on 10 February 2016 on the urgent measures to be taken by Greece in view of the resumption of Dublin transfers. This proposal is part of a package including proposals reforming other elements of the Dublin system, which will ensure consistency of provisions in this policy area. The proposal for reform of the Eurodac Regulation includes the necessary changes to reflect those proposed in the Dublin Regulation and to assist in better controlling irregular migration. The Commission is also proposing to establish a European Union Agency for Asylum to support the functioning of the Common European Asylum System, including of the revised Dublin mechanism.

In response to the crisis situation in Greece and Italy, the Council adopted in September 2015 two relocation decisions, which will be applied until September 2017. This was a temporary, ad hoc and emergency response to the situation in these two Member States which experienced unprecedented flows of migrants and which should have been relieved of some of the burden in that the responsibility for certain asylum claimants from Italy and Greece is transferred to other Member States. The Commission reported twice on the implementation of these decisions. With a view to designing a structural solution for dealing with such crisis situations, the Commission proposed a crisis relocation mechanism in September 2015. Relocation was proposed to be triggered through a delegated act, which would also determine the number persons to be relocated. This proposal introduces an automatically triggered corrective allocation mechanism. It has therefore a similar objective as the proposal made by the Commission in September 2015 and, depending on the results of the discussions on this proposal, the Commission could consider withdrawing the September proposal. The proposal also envisages new rules for determining the Member State responsible for examining an application lodged by an unaccompanied minor, namely that – in the absence of family relations – the Member State of first application shall be responsible, unless this is not in the best interests of the minor. This rule will allow a quick determination of the Member State responsible and thus allow swift access to the procedure for this vulnerable group of applicants, also in view of the shortened time limits proposed. Given that this rule differs from what the Commission proposed in June 2014, the Commission has the intention to withdraw that proposal, on which it has so far been impossible to reach an agreement. Consistency with other Union policies This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration, which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist of reducing the incentive for irregular migration, securing external borders and saving lives, a strong asylum policy and a new policy on legal migration. This proposal, which further implements the European Agenda on Migration as regards the objective of strengthening the Union's asylum policy should be seen as part of the broader policy at EU level towards building a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for the third country nationals concerned and countries of origin and transit. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY Legal basis This proposal recasts Regulation (EU) No 604/2013 and should therefore be adopted on the same legal basis, namely Article 78, second paragraph, point (e) of the TFEU, in accordance with the ordinary legislative procedure. Variable geometry The United Kingdom and Ireland are bound by Regulation 604/2013, following the notification of their wish to take part in the adoption and application of that Regulation based on the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the TEU and to the TFEU. In accordance with the above-mentioned Protocol, the United Kingdom and Ireland may decide to take part in the adoption of this proposal. They also have this option after adoption of the proposal. Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of "measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas"). However, given that Denmark applies the current Dublin Regulation, on the basis of an international agreement that it concluded with the EC in 2006, it shall, in accordance with Article 3 of that Agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation. The participation of the United Kingdom, Ireland and Denmark in the arrangements laid down in this proposal recasting Regulation (EU) No 604/2013 will be determined in the course of negotiations in accordance with these Protocols. These Protocols notably allow the United Kingdom and Ireland, but do not require them, to opt into initiatives in the policy area of freedom, security and justice while respecting their operability. Impact of the proposal on non EU Member States associated to the Dublin system In parallel to the association of several non-EU Member States to the Schengen acquis, the Union has concluded several agreements associating these countries also to the Dublin/Eurodac acquis: – the agreement associating Iceland and Norway, concluded in 2001; – the agreement associating Switzerland, concluded on 28 February 2008; – the protocol associating Liechtenstein, concluded on 7 March 2011. In order to create rights and obligations between Denmark – which as explained above has been associated to the Dublin/Eurodac acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Union and the associated countries.

In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/Eurodac acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the European Parliament and the Council. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac acquis, the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise, by unanimity. Subsidiarity Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union. The proposal streamlines the current Dublin rules and complements these with a new corrective allocation mechanism to put in place a system to address situations when Member States' asylum systems are faced with disproportionate pressure. The aim is to achieve a fair sharing of responsibilities between Member States by relieving a Member State with a disproportionate burden and sharing that burden among the remaining Member States. By definition, this requires EU action. In addition, the proposal aims at ensuring the correct application of the Dublin system in times of crisis and at tackling secondary movements of third country nationals between Member States, issues which are cross-border by nature. It is clear that actions taken by individual Member States cannot satisfactorily reply to the need for a common EU approach to a common problem. Proportionality As regards the streamlining of the Dublin rules, the changes proposed are limited to what is necessary to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States' administrations to apply the system. As regards the introduction of a new corrective allocation mechanism, Regulation (EU) No 604/2013 does not provide, in its current form, for tools enabling sufficient responses to situations of disproportionate pressure on Member States’ asylum systems. The provisions on the corrective allocation mechanism that the proposal introduces seek to address this gap. These provisions do not go beyond what is necessary to achieve the objective of addressing the situation effectively. Choice of the instrument Given that the existing Dublin mechanism was established by means of a Regulation, the same legal instrument is used for streamlining it and complementing it with a corrective allocation mechanism. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS Ex-post evaluations/fitness checks of existing legislation In the European Agenda for Migration, the Commission, while urging the Member States to fully implement the Dublin III Regulation and existing EU asylum acquis, announced the evaluation and possible revision of the Regulation in 2016. In line with this commitment the Commission commissioned external studies on the evaluation of the Dublin system. The evaluation assessed the effectiveness, efficiency, relevance, consistency and EU added value of the Dublin III Regulation. It examined the extent to which the Regulation addressed its objectives, the wider policy needs of the EU and the needs of the target stakeholders. The evaluation included an in-depth study on the practical implementation of the Dublin III Regulation in the Member States. The main findings are set out below. 3.1. The relevance of the Dublin III Regulation The Dublin system is a cornerstone of the EU asylum acquis and its objectives remain valid. An EU instrument for establishing criteria and a mechanism for determining the Member State responsible for examining an application is essential as long as separate national asylum systems exist within the Union. Without this, Member States would have to rely on ad hoc agreements as in pre-Dublin times, which would make the determination of responsibility between Member States extremely difficult. The evaluation concluded that no national or bilateral instrument could provide the same effect overall, which could result in a failure to address applications for international protection falling between national jurisdictions. Mixed views were expressed regarding the actual impact of the Regulation, which should ensure a swift access to the asylum procedures for the applicant and lead to a long-term strategy discouraging multiple applications. This would further provide efficiency to the asylum system by preventing misuse and would reduce the overall costs.

3.2 Implementation of the Regulation General The most significant problem highlighted in the evaluation was the lack of consistent and correct implementation across the Member States. It was further concluded that the design of the Dublin III Regulation had a number of shortcomings which made it more difficult to achieve its main objectives. The hierarchy of criteria as set out in the Dublin III Regulation does not take the capacity of the Member States into account, nor does it aim for a balance of efforts. The method of allocating responsibility delays access to the asylum procedure. Under the current system applicants may wait up to 10 months (in the case of "take back" requests) or 11 months (in the case of "take charge" requests), before the procedure for examining the claim for international protection starts. This undermines Dublin’s aim to ensure an applicant's swift access to the asylum procedure. It has also become clear that the Dublin III Regulation was not designed to deal with situations of disproportionate pressure. It does not aim at the objective of a fair sharing of responsibility or to address the disproportionate distribution of applicants across the Member States. These factors have become especially evident in some Member States, which have experienced difficulties in applying the Regulation in this context, with registrations of asylum seekers not always taking place, procedures being delayed and internal capacity insufficient to deal with the cases in a timely manner. Procedural guarantees and safeguards Information to the applicant about the Dublin procedure significantly differs. Approximately half of the participating Member States reported that the information provided consists of “general information”, which may fall short of the requirements stipulated in Article 4(1). Furthermore, the findings suggest that in a small number of Member States, information may not be provided at all, and if provided it seems to be outdated. The personal interview is a standard practice when determining responsibility in nearly all Member States, but the lack of capacity in some of the overburdened countries has prevented the authorities from routinely conducting interviews. If interviews are omitted, the applicant will generally be allowed to submit information in other forms. Many Member States reported that interviews were severely delayed, as a result of the current high influx. The interpretation of the best interests of the child diverges. This has on some occasions led to communication issues and mistrust between the Member States. Furthermore, practical problems have been identified in the process of appointing a representative for the minor, especially as a consequence of the current high influx. This however constitutes a wider problem for the asylum procedure. Criteria for determining the responsible Member State and evidence The criteria most often applied as grounds for transfer were those relating to documentation and entry (Articles 12 and 13), resulting in placing a substantial share of responsibility on Member States at the external border. This has led applicants to avoid being fingerprinted, contributing to secondary movements. Several Member States indicated that the interpretations of what is considered to be acceptable evidence by the authorities in the receiving country placed an unreasonable burden of proof on the sending country. Eurodac and Visa Information System (VIS) data are accepted as proof by nearly all Member States, and is the evidence most often relied on when determining responsibility. The data obtained through interviews were generally not considered as sufficient evidence. The discretionary provision and provisions on dependent persons (Articles 16 and 17), dealing with humanitarian cases, are infrequently used, with the exception of only a small number of Member States. The criteria relating to family links were less frequently used, mainly due to the difficulty of tracing family or obtaining evidence of family connections. The Member States greatly differ in respect of the evidence accepted for these criteria, but a main requirement is usually documentary evidence (such as birth or marriage certificate), which is often difficult to produce for the asylum applicant. The substantial divergence on what is acceptable proof of family connections makes it difficult to determine responsibility, leading to lengthy procedures. This could be a factor in driving secondary movements, with applicants attempting to travel onwards.

Taking charge and taking back procedures The number of "take back" requests was significantly higher than the number of "take charge" requests. Between 2008 and 2014 72% of outgoing Dublin requests were take back requests, against 28% of outgoing take charge requests. Similarly, 74% of incoming Dublin requests were take back requests compared with 26% of incoming take charge requests. The timeframes stipulated for submitting and replying to these requests were mostly complied with by all Member States, but the high inflow of migrant put an increased pressure on the asylum agencies, prolonging the response time for some Member States. This also led to an increase in incomplete requests, which could lead to rejections and disputes. This also influenced the practice of ‘acceptance by default’, with some countries deliberately failing to respond to requests by the deadline as a way of handling the large amount of cases. In 2014, the total number of take charge and take back requests was 84,586 which represents 13% of the total asylum applications made in the EU, which is a decline from previous years. Out of all requests, 33% were rejected by the receiving Member State, which could suggest that the entry into force of the Dublin III Regulation in 2014 has made it harder for the Member States to reach consensus on the responsibility. In 2014, only about a quarter of the total number of accepted take back and take charge requests actually resulted in a physical transfer. These low numbers suggest that there are problems with the practical application of the Dublin III Regulation. However, it could also be partly explained by delays in the transfers, which is not captured in the annual data used in the evaluation. Another important reason for the low rate of transfers, as confirmed by many Member States, is the high rate of absconding during the Dublin procedures, resulting in a shift of responsibility between Member States. Implementation of transfers The timeframe for implementing the transfers varied significantly. The efficiency depends on the capacity and resources in the units in charge of implementing transfers, the fact that a separate authority was in charge of the arrangements, the number of cases, the degree of cooperation of the applicant and the knowledge of their whereabouts. One indicated reason for delays was the extension of the time limits as per Article 29(2). Twenty Member States stated that the absconding of the applicant, allowing for a total of 18 months for transfers, was the primary explanation for delays. The practice of detention, reported as often used by 21 of 31 countries, varies considerably in regards to the stage of the procedure: some authorities resort to detention from the start of the Dublin procedure, others only when the transfer request has been accepted by the responsible Member State. These divergent practices create legal uncertainty as well as practical problems. Furthermore, 13 Member States highlighted that transfers in general lack effectiveness, indicating that secondary movements are ‘often’ observed following a completed transfer. Appeals Remedies are available against a transfer decision in all Member States. Member States favour judicial remedies, most frequently before the administrative courts. In the process of appeals, all Member States have introduced time limits for an applicant to exercise their right to an effective remedy, although the interpretation of what constitutes a ‘reasonable period of time’ greatly vary, ranging from three to 60 days. If a case is appealed, some Member States will automatically suspend the transfer, whilst others apply Article 27(3)(c), where this has to be requested by the applicant. Administrative cooperation All Member States indicated the frequent use of the secured electronic DubliNet network for exchange of information and informal information channels are only applied in exceptional circumstances. To further facilitate the effective application of the Dublin III Regulation, many Member States have concluded administrative arrangements as referred to in Article 36. However, to date, no Member State has made use of the conciliation procedure as described in Article 37, any disputes being resolved informally. Early Warning and Preparedness Mechanism The Early Warning and Preparedness Mechanism has not been implemented to date. While some Member States argued that the conditions for triggering the mechanism were never fulfilled, others argued that it is difficult to reach a political agreement on triggering the mechanism in the absence of clear criteria and indicators to measure the pressure. This procedure was also considered lengthy and complicated. Alternative support measures had also helped to relieve the pressure and may have obviated the need to trigger the mechanism. The European Asylum and Support Office was used as an example of support that made it unnecessary to activate the mechanism, helping to prevent or manage crises in the field of international protection. 3.3 Achieving the objectives of the Dublin III Regulation The main findings of the external study regarding the evaluation of the Dublin III Regulation were as set out below.

To prevent applicants from pursuing multiple applications, thereby reducing secondary movements Notwithstanding the aim of reducing secondary movements, multiple asylum applications remain a common problem in the EU. 24% of the applicants in 2014 had already launched previous applications in other Member States, which suggests that the Regulation has had little or no effect on this objective. It was further argued that it may have served inadvertently to increase the incidence of other types of secondary movements, since the national differences in the quality of reception and asylum systems continue to exist and continue to encourage secondary movements. To ensure an equitable distribution of applicants for and beneficiaries of international protection between the Member States The Dublin III Regulation has limited impact on the distribution of applicants within the EU, given that net transfers in Dublin procedures are close to zero. When Member States receive and transfer similar numbers of applicants, their incoming and outgoing requests cancel each other out, indicating that there is no or very little redistributive effect from the Dublin III Regulation. This appears to be due to: the hierarchy of criteria, which does not take Member States' capacity into account; the disproportionate responsibility placed on Member States at the external border, by mostly applying the criteria of first country of entry; and the low number of actual transfers, which suggests that applicants are able to submit claims where they choose, placing a greater responsibility on more desirable destinations. This is evident from the figures from 2014, where 70% of all first-time asylum applications were submitted in only five Member States. The reasonable cost in terms of financial and human resources deployed in the implementation of the Dublin III Regulation The direct and indirect estimated cost of Dublin-related work in 2014 in Europe was approximately EUR 1 billion. The absence of such a mechanism would generate even higher costs for the EU and EEA States, but the evaluation found that the Dublin III Regulation in general lacked efficiency. The legally envisaged time to transfer an applicant is long and the rate of actual transfers small: both of these have a significant financial implication on the indirect costs; and the overall efficiency of the system. In an attempt to counteract absconding, the cost of detention in some Member States is very high. Absconding generates other indirect costs and reduces the efficiency of the system. Absence of transfers and returns of rejected applicants in practice generates high social costs linked to irregular migration. It is estimated that a maximum of 42% of the Dublin applicants not effectively transferred may still be staying as irregular migrants within the EU. There is a high likelihood that the current system will remain unsustainable in the context of the continuing migratory pressure. The effective suspension of Dublin transfers to Greece from 2011 has proved a particularly critical weakness in the system in particular given the large number of migrants arriving in Greece in recent months. 3.4Stakeholder consultations In addition to the external evaluation the Commission concluded targeted consultations with LIBE coordinators of political groups of the European Parliament's Committee on Civil Liberties, Justice and Home affairs, with Member States and other stakeholders. The coordinators of political groups of the European Parliament's Committee on Civil Liberties, Justice and Home affairs were consulted on basis of a discussion document and preliminary results from the external evaluation of the Dublin Regulation. There was overall broad support for a fundamental reform of the Dublin system and a recognition that the status quo was not sustainable. While some supported having objective criteria to determine responsibility, including in the form of a distribution key, others noted the importance of taking an applicant's preferences/characteristics into account, despite the difficulty in doing so in an objective, fair and workable way. The Member States were consulted on basis of the same documents. There was agreement that the current Regulation is too complex and over-regulated and thus very difficult for administrations to apply. Changes added under the 2013 Dublin III reform resulted in increased rights for applicants which could be misused to frustrate the entire system. Secondary movements were mentioned as the most pressing implementation problem. The discussion around the need or not to transform Dublin III into a responsibility-sharing instrument, changing its current purely responsibility-allocation nature, confirmed that there are two main views: some Member States called for a permanent system for burden sharing through a distribution key, while others were in favour of keeping and streamlining the current system, including the irregular entry criterion. There were divergent views on whether the preferences of applicants should be taken into account: While some said that preferences could not be fully ignored as this would almost inevitably result in secondary movements, others strongly advised against, as clear, objective criteria were needed and adding preferences would result in complicated case-by-case assessments. Also, Member States recalled that applicants are seeking international protection/fleeing persecution and that, therefore, they should not be provided with excessive room for choosing the final country of asylum, since the rationale of Dublin is not that of an (economic) migration scheme. Other stakeholders such as UNHCR and non-governmental organisations working in the area of asylum were also consulted. They agreed that the current Dublin III regulation has important shortcomings as regards its underlying rationale – the irregular entry criterion as default criterion in the first place – and that practice during the last months has shown that a fundamental reform is necessary. The general view was that an applicant's preferences or characteristics should be taken into account for the allocation of a Member State responsible in view of integration perspectives and to reduce secondary movements. To that same end, the family criterion should be expanded. Many underlined the need to make progress towards a level playing field in all Member States, in particular as regards reception conditions and procedures.

3.5Fundamental rights This proposal is fully compatible with fundamental rights and general principles of Community as well as international law. In particular, better informing asylum-seekers about the application of this Regulation and their rights and obligations within it will on the one hand enable them to better defend their rights and on the other hand will contribute to diminish the level of secondary movements as asylum-seekers will be better inclined to comply with the system. The effectiveness of the right to judicial remedy will be increased, by specifying the scope of the appeal and defined a harmonised time limit for taking decisions. The appeal will in addition have automatic suspensive effect. The right to liberty and freedom of movement will be reinforced by shortening the time limits under which a person may be detained in an exceptional case prescribed under the Regulation and only if it is in line with the principles of necessity and proportionality. The right to family reunification will be reinforced, in particular by enlarging the scope of the Regulation to include siblings as well as families formed in transit countries. The rights of unaccompanied minors have also been strengthened through better defining the principle of the best interests of the child and by setting out a mechanism for making a best interests of the child-determination in all circumstances implying the transfer of a minor. 4.BUDGETARY IMPLICATIONS The total financial resources necessary to support the implementation of this proposal amount to EUR 1828.6 million foreseen for the period 2017-2020. This would cover the transfer costs once the corrective allocation mechanism has been triggered for the benefit of a Member State, the establishment and operation of the IT system for the registration and automatic allocation of asylum applicants, but also support for developing the necessary reception capacity, both as regards infrastructure and the running costs, in particular in those Member States which so far only had to deal with low numbers of asylum applicants. The financial needs are compatible with the current multiannual financial framework and may entail the use of special instruments as defined in the Council Regulation (EU, Euratom) No 1311/2013. 5.DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSAL The proposal retains the link between responsibility in the field of asylum and the respect by Member States of their obligations in terms of protection of the external border, subject to exceptions designed to protect family unity and the best interests of the child. The current criteria for the allocation of responsibility are essentially preserved, but targeted changes are proposed, notably to strengthen family unity under Dublin by extending the family definition. The main amendments made intend to on the one hand improve the efficiency of the system, notably by maintaining a stable responsibility of a given Member State for examining an application, once that responsibility has been established. On the other hand, the amendments serve to limit secondary movements, in particular by deleting the rules on shift of responsibility between Member States. The system is supplemented with a new corrective allocation mechanism, based on a reference key, allowing for adjustments in allocation of applicants in certain circumstances. It therefore means the system can deal with situations when Member States' asylum systems are faced with disproportionate pressure, by ensuring an appropriate system of responsibility sharing between Member States. I. Streamlining the Dublin Regulation and improving its efficiency With the aims of ensuring that the Dublin procedure operates smoothly and in a sustainable way, that it fulfils the aim of quick access to the examination procedure and to protection for those in need of it, and that secondary movements are discouraged, various modifications are proposed, in particular: A new obligation is introduced that foresees that an applicant must apply in the Member State either of first irregular entry or, in case of legal stay, in that Member State. The aim is to ensure an orderly management of flows, to facilitate the determination of the Member State responsible, and to prevent secondary movements. With this amendment it is clarified that an applicant neither has the right to choose the Member State of application nor the Member State responsible for examining the application. In case of non-compliance with this new obligation by an applicant the Member State must examine the application in an accelerated procedure. In addition, an applicant will only be entitled to material reception rights where he or she is required to be present. Before the start of the process of determining the Member State responsible, the Regulation introduces an obligation for the Member State of application to check whether the application is inadmissible, on the grounds that the applicant comes from a first country of asylum or a safe third country. If this is the case, the applicant will be returned to that first country or safe third country, and the Member State who made the inadmissibility check will be considered responsible for that application. The Member State of application must also check whether the applicant comes from a safe country of origin or presents a security risk, in which case the Member State of application will be responsible and has to examine the application in accelerated procedure. The Regulation introduces a rule that once a Member State has examined the application as Member State responsible, it remains responsible also for examining future representations and applications of the given applicant. This strengthens the new rule that only one Member State is and shall remain responsible for examining an application and that the criteria of responsibility shall be applied only once. The requirement of the cooperation of applicants is enhanced with a view to assuring quick access to status determination procedures, correct functioning of the system and preventing the circumvention of the rules, notably absconding. The Regulation sets out proportionate obligations of the applicant concerning the timely provision of all the elements and information relevant for determining the Member State responsible and also concerning cooperation with the competent authorities of the Member States. It is also explicitly stated that applicants have an obligation to be present and available for the authorities of a relevant Member State and respect the transfer decision. Non-fulfilment of legal obligations set out in the Regulation will have proportionate procedural consequences for the applicant, such as preclusion of accepting information that was unjustifiably submitted too late.

The Regulation enlarges the scope of the information which must be provided to applicants. The personal interview serves to facilitate the process of determining the Member State responsible by helping in gathering all the necessary information. However, it should not result in delaying the procedure when the applicant has absconded or when sufficient information has already been provided. The rule on hierarchy of criteria for determining responsibility states explicitly that the criteria shall be applied only once. This means that, as of the second application, the readmission rules (take back) will apply without exceptions. The rule that criteria shall be determined on the basis of the situation obtaining when the applicant first lodged his or her application with a Member State, now applies to all criteria, including those regarding family members and minors. A clear cut-off deadline for providing relevant information will enable a quick assessment and decision. The definition of family members is extended in two ways: by (1) including the sibling or siblings of an applicant and by (2) including family relations which were formed after leaving the country of origin but before arrival on the territory of the Member State. Siblings are a rather targeted but important category where the possibility to prove and check the family relation is relatively easy and thus the potential for abuse is low. The extension to cover families formed during transit reflects recent migratory phenomena such as longer stays outside the origin country before reaching the EU, such as in refugee camps. These targeted extensions of the family definition are expected to reduce the risk of irregular movements or absconding for persons covered by the extended rules. A number of modifications are proposed to streamline the responsibility criteria set out in Articles 14, 15, and 16. In Article 14 the criteria of responsibility regarding visas and residence documents have been clarified. In Article 15 on irregular entry, the clause envisaging cessation of responsibility after 12 months from irregular entry as well as the complicated and difficult to prove clause in relation to illegal stay were deleted. In relation to the criterion of visa waived entry, the exception concerning subsequent entries to a Member States for which the need for an entry visa is waived is also deleted, in line with the approach that the Member State of first entry should, as a rule, be responsible and in view of preventing unjustified secondary movements after entry. The discretionary clause is made narrower, to ensure that it is only used on humanitarian grounds in relation to wider family. The amended Regulation establishes shorter time limits for the different steps of the Dublin procedure, in order to speed up the determination procedure and to grant swifter access of an applicant to the asylum procedure. This concerns time limits for submitting and replying to a take charge request, making a take back notification, and taking a transfer decision. As a result of shortening the time limits, the urgency procedure was removed. Expiry of deadlines will no longer result in a shift of responsibility between Member States (with the exception of the deadline for replying to take charge requests). Such shifts appear to have encouraged circumventing the rules and obstructing the procedure. The new rule should instead be that once a Member State was determined responsible, that Member State shall remain responsible. Take back requests have been transformed into simple take back notifications, given that it is clear which the responsible Member State is and there will be no longer be any scope for shift of responsibility. Such notifications do not require a reply, but instead an immediate confirmation of receipt. This will be a significant tool to address secondary movements, considering the current prevalence of take back rather than take charge requests. Related to this are procedural consequences for the examination of the application after a take back transfer. The rules have been modified as concerns how the Member States responsible should examine the application after taking the person back, with a view to dissuading and sanctioning secondary movements An obligation for the Member State responsible has been added to take back a beneficiary of international protection, who made an application or is irregularly present in another Member State. This obligation will give Member States the necessary legal tool to enforce transfers back, which is important to limit secondary movements. The rules on remedies have been adapted in order to considerably speed up and harmonise the appeal process. In addition to establishing specific, short time limits, making use of a remedy automatically suspends the transfer. A new remedy is introduced for cases where no transfer decision is taken, and the applicant claims that a family member or, in the case of minors, also a relative, is legally present in another Member State. The conciliation procedure as a dispute resolution mechanism has not been formally used since it was foreseen in the 1990 Dublin Convention (albeit in a slightly different form), and seems therefore unnecessary and should be abolished. The objectives of the existing early warning and preparedness mechanism are proposed to be taken over by the new European Union Agency for Asylum, as set out notably in Chapter 5 on monitoring and assessment and Chapter 6 on operational and technical assistance in the proposal on a European Union Agency for Asylum. That mechanism has therefore been deleted from the Dublin Regulation. A network of Dublin units is set up and facilitated by the European Union Agency for Asylum to enhance practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance.  In relation to unaccompanied minors, the proposal clarifies that the Member State where the minor first lodged his or her application for international protection will be responsible, unless it is demonstrated that this is not in the best interests of the minor. This rule will allow a quick determination of the Member State responsible and thus allow swift access to the procedure for this vulnerable group of applicants, also in view of the shortened time limits proposed. The provision on guarantees for unaccompanied minors is adapted to make the best interests assessment more operational. Thus, before transferring an unaccompanied minor to another Member State, the transferring Member State shall make sure that that Member State will take the necessary measures under the asylum procedures and reception conditions Directives without delay. It is also stipulated that any decision to transfer an unaccompanied minor must be preceded by an assessment of his/her best interests, to be done swiftly by qualified staff. II. Corrective allocation mechanism The recast Regulation establishes a corrective mechanism in order to ensure a fair sharing of responsibility between Member States and a swift access of applicants to procedures for granting international protection, in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is the Member State responsible under the Regulation. It should mitigate any significant disproportionality in the share of asylum applications between Member States resulting from the application of the responsibility criteria. Registration and monitoring system An automated system is established that will allow for the registration of all applications and the monitoring of each Member States' share in all applications. The Union's Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) will be responsible for the development and technical operation of the system. As soon as an application is lodged, the Member State shall register that application in the automated system, which will record each application under a unique application number. As soon as a Member State has been determined to be the Member State responsible, this will also be included in the system. The automated system will also indicate, in real time, the total number of applications lodged in the EU and the number per Member State, as well as – after a Member State responsible has been determined – the number of applications that each Member State must examine as Member State responsible and the share which this represents, compared to other Member States. The system will also indicate the numbers of persons effectively resettled by each Member State.

Triggering the corrective allocation mechanism The number of applications for which a given Member State is responsible and the numbers of persons effectively resettled by a Member State are the basis for the calculation of the respective shares. This includes applications for which a Member State would be responsible under the inadmissibility check, safe country of origin and security grounds. Calculations take place on a rolling one year basis, i.e. at any moment, based on the number of new applications for which a Member State has been designated as responsible in the system over the past year and the number of persons effectively resettled. The system continuously calculates the percentage of applications for which each Member State has been designated as responsible and compares with the reference percentage based on a key. This reference key is based on two criteria with equal 50% weighting, the size of the population and the total GDP of a Member State. The application of the corrective allocation for the benefit of a Member State is triggered automatically where the number of applications for international protection for which a Member State is responsible exceeds 150% of the figure identified in the reference key. Allocation of applications through a reference key and cessation As of the triggering of the mechanism, all new applications lodged in the Member State experiencing the disproportionate pressure, after the admissibility check but before the Dublin check, are allocated to those Member States with a number of applications for which they are the Member State responsible which is below the number identified in the reference key; the allocations are shared proportionately between those Member States, based on the reference key. No further such allocations will be made to a Member State once the number of applications for which it is responsible exceeds the number identified in the reference key. The allocation continues as long as the Member State experiencing the disproportionate pressure continues to be above 150% of its reference number. Family members to whom the allocation procedure applies will be allocated to the same Member State. The corrective allocation mechanism should not lead to the separation of family members. Financial solidarity A Member State of allocation may decide to temporarily not take part in the corrective mechanism fora twelve months-period. The Member State would enter this information in the automated system and notify the other Member States, the Commission and the European Agency for Asylum. Thereafter the applicants that would have been allocated to that Member State are allocated to the other Member States instead. The Member State which temporarily does not take part in the corrective allocation must make a solidarity contribution of EUR 250,000 per applicant to the Member States that were determined as responsible for examining those applications. The Commission should adopt an implementing act, specifying the practical modalities for the implementation of the solidarity contribution mechanism. The European Union Agency for Asylum will monitor and report to the Commission on a yearly basis on the application of the financial solidarity mechanism. Procedure in the transferring Member State and the Member State of allocation The Member State which benefits form the corrective mechanism shall transfer the applicant to the Member State of allocation and shall also transmit the applicant's fingerprints in order to allow security verification in the Member State of allocation. This aims to prevent any impediments to allocation as experienced during the implementation of the relocation decisions. Following the transfer, the Member State of allocation will do the Dublin check to verify whether there are primary criteria, such as family in another Member State, apply in the case of the applicant. Where this should be the case, the applicant will be transferred to the Member State which would consequently be responsible. Review clause It is foreseen that the Commission will review the functioning of the corrective allocation mechanism 18 months after entry into force of this Regulation and from then on annually, in order to assess whether the corrective allocation mechanism is meeting its objective of ensuring a fair sharing of responsibility between Member States and of relieving disproportionate pressure on certain Member States. The Commission will in particular verify that the threshold for the triggering and cessation of the corrective allocation effectively ensure a fair sharing of responsibility between the Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation.

ê 604/2013 2016/0133 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2)(e) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national Parliaments, Having regard to the opinion of the European Economic and Social Committee, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedure, Whereas: ê 604/2013 recital 1 (adapted) (1)A number of substantive changes are to be made to Council Regulation (EC) No 343/2003 of 18 February 2003 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 Ö Regulation (EU) No 604/2013 of the European Parliament and of the Council Õ . In the interests of clarity, that Regulation should be recast. ê 604/2013 recital 2 (2)A common policy on asylum, including a Common European Asylum System (CEAS), is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union.

ê 604/2013 recital 3 (3)The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing the CEAS, based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (‘the Geneva Convention’), thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without the responsibility criteria laid down in this Regulation being affected, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals. ê 604/2013 recital 4 (4)The Tampere conclusions also stated that the CEAS should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application. ê 604/2013 recital 5 (5)Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection. ê 604/2013 recital 6 (6)The first phase in the creation of a CEAS that should lead, in the longer term, to a common procedure and a uniform status, valid throughout the Union, for those granted international protection, has now been completed. The European Council of 4 November 2004 adopted The Hague Programme which set the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect, The Hague Programme invited the European Commission to conclude the evaluation of the first-phase legal instruments and to submit the second-phase instruments and measures to the European Parliament and to the Council with a view to their adoption before 2010. ê 604/2013 recital 7 ð new (7)In the Stockholm Programme, the European Council reiterated its commitment to the objective of establishing a common area of protection and solidarity in accordance with Article 78 of the Treaty on the Functioning of the European Union (TFEU), for those granted international protection, by 2012 at the latest. Furthermore it emphasised that the Dublin system remains a cornerstone in building the CEAS, as it clearly allocates responsibility among Member States for the examination of applications for international protection. ð In May 2015 the Commission indicated in its Communication on the European Agenda on Migration that the Dublin Regulation would be evaluated and, if necessary, that a proposal for its revision would be made, in particular to achieve a fairer distribution of asylum seekers in Europe ï . ê 604/2013 recital 8 (8)The resources of the European Asylum Support Office (EASO), established by Regulation (EU) No 439/2010 of the European Parliament and of the Council , should be available to provide adequate support to the relevant services of the Member States responsible for implementing this Regulation. In particular, EASO should provide solidarity measures, such as the Asylum Intervention Pool with asylum support teams, to assist those Member States which are faced with particular pressure and where applicants for international protection (‘applicants’) cannot benefit from adequate standards, in particular as regards reception and protection.

ò new (9)The European Union Agency for Asylum should provide adequate support in the implementation of this Regulation, in particular by establishing the reference key for the distribution of asylum seekers under the corrective allocation mechanism, and by adapting the figures underlying the reference key annually, as well as the reference key based on Eurostat data. ê 604/2013 recital 9 (adapted) ð new (10)In the light of the results of the evaluation undertaken of the implementation of Ö Regulation (EU) 604/2013 Õ the first-phase instruments, it is appropriate, at this stage, to confirm the principles underlying Regulation (EC) No 343/2003 (EU) No 604/2013, while making the necessary improvements, in the light of experience, to the effectiveness of the Dublin system and the protection granted to applicants under that system. Given that a well-functioning Dublin system is essential for the CEAS, its principles and functioning should be reviewed as other components of the CEAS and Union solidarity tools are built up. A comprehensive ‘fitness check’ should be foreseen by conducting an evidence-based review covering the legal, economic and social effects of the Dublin system, including its effects on fundamental rights. ðBased on this evaluation and on consultation with Member States, the European Parliament and other stakeholders, it is also considered appropriate to establish in the Regulation measures required for a fair share of responsibility between Member States for applications for international protection, in particular to ensure that a disproportionate burden is not placed upon some Member States. ï ê 604/2013 recital 10 (11)In order to ensure equal treatment for all applicants and beneficiaries of international protection, and consistency with the current Union asylum acquis, in particular with Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, the scope of this Regulation encompasses applicants for subsidiary protection and persons eligible for subsidiary protection. ò new (12)In order to ensure that beneficiaries of international protection who entered the territory of another Member State than the Member State responsible without fulfilling the conditions of stay in that other Member State are taken back by the Member State responsible, it is necessary to encompass beneficiaries of international protection in the scope of this Regulation. ê 604/2013 recital 11 (13)Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection should apply to the procedure for the determination of the Member State responsible as regulated under this Regulation, subject to the limitations in the application of that Directive. ê 604/2013 recital 12 (14)Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection should apply in addition and without prejudice to the provisions concerning the procedural safeguards regulated under this Regulation, subject to the limitations in the application of that Directive. ê 604/2013 recital 13

(15)In accordance with the 1989 United Nations Convention on the Rights of the Child and with the Charter of Fundamental Rights of the European Union, the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take due account of the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background. In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability. ê 604/2013 recital 14 (16)In accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the Charter of Fundamental Rights of the European Union, respect for family life should be a primary consideration of Member States when applying this Regulation. ò new (17)In order to prevent that applicants with inadmissible claims or who are likely not to be in need of international protection, or who represent a security risk are transferred among the Member States, it is necessary to ensure that the Member where an application is first lodged verifies the admissibility of the claim in relation to the first country of asylum and safe third country, examines in accelerated procedures applications made by applicants coming from a safe country of origin designated on the EU list, as well as applicants presenting security concerns. ê 604/2013 recital 15 (18)The processing together of the applications for international protection of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly, the decisions taken in respect of them are consistent and the members of one family are not separated. ò new (19)The definition of a family member in this Regulation should include the sibling or siblings of the applicant. Reuniting siblings is of particular importance for improving the chances of integration of applicants and hence reducing secondary movements. The scope of the definition of family member should also reflect the reality of current migratory trends, according to which applicants often arrive to the territory of the Member States after a prolonged period of time in transit. The definition should therefore include families formed outside the country of origin, but before their arrival on the territory of the Member State. This limited and targeted enlargement of the scope of the definition is expected to reduce the incentive for some secondary movements of asylum seekers within the EU. ê 604/2013 recital 16 ð new (20)In order to ensure full respect for the principle of family unity and for the best interests of the child, the existence of a relationship of dependency between an applicant and his or her child, sibling or parent on account of the applicant’s pregnancy or maternity, state of health or old age, should become a binding responsibility criterion. When the applicant is an unaccompanied minor, the presence of a family member or relative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion. ð In order to discourage secondary movements of unaccompanied minors, which are not in their best interests, in the absence of a family member or a relative, the Member State responsible should be that where the unaccompanied minor first has lodged his or her application for international protection, unless it is demonstrated that this would not be in the best interests of the child. Before transferring an unaccompanied minor to another Member State, the transferring Member State should make sure that that Member State will take all necessary and appropriate measures to ensure the adequate protection of the child, and in particular the prompt appointment of a representative or representatives tasked with safeguarding respect for all the rights to which they are entitled. Any decision to transfer an unaccompanied minor should be preceded by an assessment of his/her best interests by staff with the necessary qualifications and expertise. ï ê 604/2013 recital 17 (adapted) ð new

(21)ð Assuming responsibility by a Member State for examining an application lodged with it in cases when such examination is not its responsibility under the criteria laid down in this Regulation may undermine the effectiveness and sustainability of the system and should be exceptional. ï Any Ö Therefore, a Õ Member State should be able to derogate from the responsibility criteria, in particular ð only ï on humanitarian and compassionate grounds, ð in particular for family reasons, before a Member State responsible has been determined ï in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in this Regulation. ò new (22)In order to ensure that the aims of this Regulation are achieved and obstacles to its application are prevented, in particular in order to avoid absconding and secondary movements between Member States, it is necessary to establish clear obligations to be complied with by the applicant in the context of the procedure, of which he or she should be duly informed in a timely manner. Violation of those legal obligations should lead to appropriate and proportionate procedural consequences for the applicant and to appropriate and proportionate consequences in terms of his or her reception conditions. In line with the Charter of Fundamental Rights of the European Union, the Member State where such an applicant is present should in any case ensure that the immediate material needs of that person are covered. ê 604/2013 recital 18 (adapted) ð new (23)A personal interview with the applicant should be organised in order to facilitate the determination of the Member State responsible for examining an application for international protection ð unless the applicant has absconded or the information provided by the applicant is sufficient for determining the Member State responsible ï. As soon as the application for international protection is lodged, the applicant should be informed Ö in particular Õ of the application of this Regulation, ð of the lack of choice as to which Member State will examine his or her asylum application; of his or her obligations under this Regulation and of the consequences of not complying with them ï and of the possibility, during the interview, of providing information regarding the presence of family members, relatives or any other family relations in the Member States, in order to facilitate the procedure for determining the Member State responsible. ê 604/2013 recital 19 ð new (24)In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. ð An effective remedy should also be provided in situations when no transfer decision is taken but the applicant claims that another Member State is responsible on the basis that he has a family member or, for unaccompanied minors, a relative in another Member State. ï In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred. ð The scope of the effective remedy should be limited to an assessment of whether applicants' fundamental rights to respect of family life, the rights of the child, or the prohibition of inhuman and degrading treatment risk to be infringed upon. ï ò new (25)The Member State which is determined as responsible under this Regulation should remain responsible for examination of each and every application of that applicant, including any subsequent application, in accordance with Article 40, 41 and 42 of Directive 2013/32/EU, irrespective of whether the applicant has left or was removed from the territories of the Member States. Provisions in Regulation (EU) 604/2013 which had provided for the cessation of responsibility in certain circumstances, including when deadlines for the carrying out of transfers had elapsed for a certain period of time, had created an incentive for absconding, and should therefore be removed. (26)In order to ensure the speedy determination of responsibility and allocation of applicants for international protection between Member States, the deadlines for making and replying to requests to take charge, for making take back notifications, and for carrying out transfers, as well as for making and deciding on appeals, should be streamlined and shortened to the greatest extent possible. ê 604/2013 recital 20 (27)The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with Article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, Member States should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation.

ê 604/2013 recital 21 (28)Deficiencies in, or the collapse of, asylum systems, often aggravated or contributed to by particular pressures on them, can jeopardise the smooth functioning of the system put in place under this Regulation, which could lead to a risk of a violation of the rights of applicants as set out in the Union asylum acquis and the Charter of Fundamental Rights of the European Union, other international human rights and refugee rights. ò new (29)Proper registration of all asylum applications in the EU under a unique application number should help detect multiple applications and prevent irregular secondary movements and asylum shopping. An automated system should be established for the purpose of facilitating the application of this Regulation. It should enable registration of asylum applications lodged in the EU, effective monitoring of the share of applications of each Member State and a correct application of the corrective allocation mechanism. (30)The European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011 should be responsible for the preparation, development and the operational management of the central system and the communication infrastructure between the central system and the national infrastructures. ê 604/2013 recital 22 ð new (31)A process for early warning, preparedness and management of asylum crises serving to prevent a deterioration in, or the collapse of, asylum systems, with EASO playing a key role using its powers under Regulation (EU) No 439/2010, should be established in order to ensure robust cooperation within the framework of this Regulation and to develop mutual trust among Member States with respect to asylum policy. Such a process should ensure that the Union is alerted as soon as possible when there is a concern that the smooth functioning of the system set up by this Regulation is being jeopardised as a result of particular pressure on, and/or deficiencies in, the asylum systems of one or more Member States. Such a process would allow the Union to promote preventive measures at an early stage and pay the appropriate political attention to such situations. Solidarity, which is a pivotal element in the CEAS, goes hand in hand with mutual trust. By enhancing such trust, the process for early warning, preparedness and management of asylum crises could improve the steering of concrete measures of genuine and practical solidarity towards Member States, in order to assist the affected Member States in general and the applicants in particular. In accordance with Article 80 TFEU of the Treaty, Union acts should, whenever necessary, contain appropriate measures to give effect to the principle of solidarity., ð A corrective allocation mechanism should be established in order to ensure a fair sharing of responsibility between Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation. ï and the process should be accompanied by such measures. The conclusions on a Common Framework for genuine and practical solidarity towards Member States facing particular pressures on their asylum systems, including through mixed migration flows, adopted by the Council on 8 March 2012, provide for a ‘tool box’ of existing and potential new measures, which should be taken into account in the context of a mechanism for early warning, preparedness and crisis management. ò new (32)A key based on the size of the population and of the economy of the Member States should be applied as a point of reference in the operation of the corrective allocation mechanism in conjunction with a threshold, so as to enable the mechanism to function as a means of assisting Member States under disproportionate pressure. The application of the corrective allocation for the benefit of a Member State should be triggered automatically where the number of applications for international protection for which a Member State is responsible exceeds 150% of the figure identified in the reference key. In order to comprehensively reflect the efforts of each Member State, the number of persons effectively resettled to that Member State should be added to the number of applications for international protection for the purposes of this calculation. (33)When the allocation mechanism applies, the applicants who lodged their applications in the benefitting Member State should be allocated to Member States which are below their share of applications on the basis of the reference key as applied to those Member States. Appropriate rules should be provided for in cases where an applicant may for serious reasons be considered a danger to national security or public order, especially rules as regards the exchange of information between competent asylum authorities of Member States. After the transfer, the Member State of allocation should determine the Member State responsible, and should become responsible for examining the application, unless the overriding responsible criteria, related in particular to the presence of family members, determine that a different Member State should be responsible. (34)Under the allocation mechanism, the costs of transfer of an applicant to the Member State of allocation should be reimbursed from the EU budget. (35)A Member State of allocation may decide not to accept the allocated applicants during a twelve months-period, in which case it should enter this information in the automated system and notify the other Member States, the Commission and the European Union Agency for Asylum. Thereafter the applicants that would have been allocated to that Member State should be allocated to the other Member States instead. The Member State which temporarily does not take part in the corrective allocation should make a solidarity contribution of EUR 250,000 per applicant not accepted to the Member State that was determined as responsible for examining those applications. The Commission should lay down the practical modalities for the implementation of the solidarity contribution mechanism in an implementing act. The European Union Agency for Asylum will monitor and report to the Commission on a yearly basis on the application of the financial solidarity mechanism. ê 604/2013 recital 22 Member States should collaborate with EASO in the gathering of information concerning their ability to manage particular pressure on their asylum and reception systems, in particular within the framework of the application of this Regulation. EASO should regularly report on the information gathered in accordance with Regulation (EU) No 439/2010.

ê 604/2013 recital 24 (36)In accordance with Commission Regulation (EC) No 1560/2003, transfers to the Member State responsible for examining an application for international protection may be carried out on a voluntary basis, by supervised departure or under escort. Member States should promote voluntary transfers by providing adequate information to the applicant and should ensure that supervised or escorted transfers are undertaken in a humane manner, in full compliance with fundamental rights and respect for human dignity, as well as the best interests of the child and taking utmost account of developments in the relevant case law, in particular as regards transfers on humanitarian grounds. ê 604/2013 recital 25 (37)The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the TFEU and the establishment of Union policies regarding the conditions of entry and stay of third-country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity. ò new (38)The [General Data Protection Regulation (EU) .../2016] applies to the processing of personal data by the Member States under this Regulation from the date set out in that Regulation; until this date Directive 95/46/EC applies. Member States should implement appropriate technical and organisational measures to ensure and be able to demonstrate that processing is performed in accordance with that Regulation and the provisions specifying its requirements in this Regulation. In particular those measures should ensure the security of personal data processed under this Regulation and in particular to prevent unlawful or unauthorised access or disclosure, alteration or loss of personal data processed. The competent supervisory authority or authorities of each Member State should monitor the lawfulness of the processing of personal data by the authorities concerned, including of the transmission to and from the automated system and to the authorities competent for carrying out security checks. (39)The processing of personal data by the European Union Agency for Asylum should be subject to the monitoring of the European Data Protection Supervisor in accordance with Regulation (EC) No 45/2001 and the provisions on data protection laid down in [Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010]. ê 604/2013 recital 26 (adapted) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data applies to the processing of personal data by the Member States under this Regulation. ê 604/2013 recital 27 The exchange of an applicant’s personal data, including sensitive data on his or her health, prior to a transfer, will ensure that the competent asylum authorities are in a position to provide applicants with adequate assistance and to ensure continuity in the protection and rights afforded to them. Special provisions should be made to ensure the protection of data relating to applicants involved in that situation, in accordance with Directive 95/46/EC. ê 604/2013 recital 28 (40)The application of this Regulation can be facilitated, and its effectiveness increased, by bilateral arrangements between Member States for improving communication between competent departments, reducing time limits for procedures or simplifying the processing of requests to take charge or take back, or establishing procedures for the performance of transfers. ê 604/2013 recital 29

(41)Continuity between the system for determining the Member State responsible established by Regulation (EC) No 343/2003 (EU) No 604/2013 and the system established by this Regulation should be ensured. Similarly, consistency should be ensured between this Regulation and Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013 of the European Parliament and of the Council] of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 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 and on requests for the comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes . ò new (42)A network of competent Member State authorities should be set up and facilitated by the European Union Agency for Asylum to enhance practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance. ê 604/2013 recital 30 (43)The operation of the Eurodac system, as established by Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013 of the European Parliament and of the Council], should facilitate the application of this Regulation. ê 604/2013 recital 31 (44)The operation of the Visa Information System, as established by Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas, and in particular the implementation of Articles 21 and 22 thereof, should facilitate the application of this Regulation. ê 604/2013 recital 32 (45)With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights. ê 604/2013 recital 33 (46)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers. ê 604/2013 recital 34 (adapted) ð new (47)The examination procedure should be used for the adoption of a common leaflet on Dublin/Eurodac, as well as a specific leaflet for unaccompanied minors; of a standard form for the exchange of relevant information on unaccompanied minors; of uniform conditions for the consultation and exchange of information on minors and dependent persons; of uniform conditions on the preparation and submission of take charge Ö requests Õ and take back ð notifications ï requests; of two lists of relevant elements of proof and circumstantial evidence, and the periodical revision thereof; of a laissez passer; of uniform conditions for the consultation and exchange of information regarding transfers; of a standard form for the exchange of data before a transfer; of a common health certificate; of uniform conditions and practical arrangements for the exchange of information on a person’s health data before a transfer, and of secure electronic transmission channels for the transmission of requests.

ê 604/2013 recital 35 (adapted) (48)In order to provide for supplementary rules, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the identification of family members or relatives of an unaccompanied minor; the criteria for establishing the existence of proven family links; the criteria for assessing the capacity of a relative to take care of an unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State; the elements for assessing a dependency link; the criteria for assessing the capacity of a person to take care of a dependent person and the elements to be taken into account in order to assess the inability to travel for a significant period of time. In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child as provided for under Article 68(3) of this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level Ö and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016 Õ. Ö In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. Õ The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. ê 604/2013 recital 36 (49)In the application of this Regulation, including the preparation of delegated acts, the Commission should consult experts from, among others, all relevant national authorities. ê 604/2013 recital 37 (50)Detailed rules for the application of Regulation (EC) No 343/2003 (EU) No 604/2013 have been laid down by Regulation (EC) No 1560/2003. Certain provisions of Regulation (EC) No 1560/2003 as amended by Regulation 118/2014 should be incorporated into this Regulation, either for reasons of clarity or because they can serve a general objective. In particular, it is important, both for the Member States and the applicants concerned, that there should be a general mechanism for finding a solution in cases where Member States differ over the application of a provision of this Regulation. It is therefore justified to incorporate the mechanism provided for in Regulation (EC) No 1560/2003 for the settling of disputes on the humanitarian clause into this Regulation and to extend its scope to the entirety of this Regulation. ê 604/2013 recital 38 (51)The effective monitoring of the application of this Regulation requires that it be evaluated at regular intervals. ò new (52)In order to assess whether the corrective allocation mechanism in this Regulation is meeting the objective of ensuring a fair sharing of responsibility between Member States and of relieving disproportionate pressure on certain Member States, the Commission should review the functioning of the corrective allocation mechanism and in particular verify that the threshold for the triggering and cessation of the corrective allocation effectively ensures a fair sharing of responsibility between the Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation. ê 604/2013 recital 39 (53)This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly. ê 604/2013 recital 40

(54)Since the objective of this Regulation, namely the establishment of 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, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. ê 604/2013 recital 41 In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, those Member States have notified their wish to take part in the adoption and application of this Regulation. ò new (55)[In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States have notified their wish to take part in the adoption and application of this Regulation] OR (56)[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Regulation and are not bound by it or subject to its application.] OR (53)[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (54) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation.] OR (53) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation. (54) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.] ê 604/2013 recital 42 (57)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application, ê 604/2013 (adapted)

ð new HAVE ADOPTED THIS REGULATION: CHAPTER I SUBJECT MATTER AND DEFINITIONS Article 1 Subject matter This Regulation lays down the criteria and mechanisms for determining the Ö single Õ 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 (‘the Member State responsible’). Article 2 Definitions For the purposes of this Regulation: (a)‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU and who is not national of a State which participates in this Regulation by virtue of an agreement with the European Union; (b)‘application for international protection’ means an application for international protection as defined in Article 2(h) of Directive 2011/95/EU; (c)‘applicant’ means a thi