Commission staff working document accompanying the 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) - Summary of the impact assessment {COM(2008) 820 final} {SEC(2008) 2962}
Date: 2008-12-03
Institutions: European Commission
Subjects: EU Member State, diplomatic protection, foreign national, international law, right of asylum, third country

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.12.2008 
SEC(2008) 2963 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

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)  

Summary of the Impact Assessment 

{COM(2008) 820 final} 
{SEC(2008) 2962} 

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INTRODUCTION 

1. 
The  Commission's  Work  Programme  for  20081  included  the  adoption  of  a  proposal 
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 as one of its strategic initiatives (hereafter referred 
to as proposal amending the Dublin Regulation)2. 

With  a  view  to  preparing  for  the  second  stage  of  asylum  legislation,  as  called  for  by  the 
Hague programme, the Commission started the evaluation process of the results achieved in 
the  first  phase  of  the  establishment  of  the  Common  European  Asylum  System  (hereafter 
referred to as the CEAS). 

As  far  as  the  Dublin  Regulation  is  concerned,  the  Commission  has  firstly  issued  a 
comprehensive  Evaluation  Report  of  the  Dublin  system  on  6  June  20073  based  on  a  wide 
range of contributions from different stakeholders. Secondly, the Commission presented on 6 
June 2007 a Green Paper on the future of the CEAS4 aiming to identify the possible options 
for shaping the second phase of the CEAS. While the Evaluation Report served as a technical 
assessment  for  the  Dublin  system,  the  consultation  based  on  the  Green  Paper  served  as  a 
policy evaluation.  

The Commission ordered an external study in order to get support for the preparation of this 
Impact Assessment. In addition, several experts' meetings were organised between October 
2007 and July 2008 with Member States, NGOs and UNHCR, lawyers, judges and Members 
of the European Parliament in order to seek their opinion on the improvements needed to the 
Dublin Regulation. 

The issues raised and the suggestions put forward have provided the basis for the preparation 
of this Impact Assessment.  

2. 

STATE OF PLAY AND PROBLEMS 

The following clusters of problems have been identified with regard to the application of the 
Dublin Regulation: 

•  Unclear  or 

inadequate  operational  provisions  of 

the  Dublin  Regulation  are 

counterproductive for the efficiency of the system and create hardship for asylum-seekers; 

•  Disputes  between  Member  States  concerning  the  application  of  the  Dublin  rules  are  not 

tackled in an efficient way; 

•  Transfers  under  the  Dublin  procedure  could  contribute  to  further  overburden  Member 

States confronted with situations of particular pressure; 

•  Transfers  under  the  Dublin  procedure  could,  in  exceptional  circumstances,  result  in 

asylum-seekers not benefiting from adequate standards of protection;  

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2 
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COM(2007) 640. 
CLWP reference No: 2008/JLS/022. 
Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  evaluation  of  the 
Dublin  system  -  COM(2007)  299,  SEC(2007)  742.  The  "Dublin  system"  aims  to  determine  which 
Member State is responsible for examining an asylum application lodged by a third-country national on 
the territory of one of the Member States. It consists of the Dublin and Eurodac Regulations and their 
implementing rules. 
COM(2007) 301. 

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•  Insufficient information and legal safeguards for asylum-seekers;  

•  Family unity, the interests of the child and of other vulnerable groups are not sufficiently 

ensured by Member States.  

The Impact Assessment then looks into the possible evolution of the situation if no action at 
EU level was taken and concludes that the existing problems would persist and that there is a 
strong case for EU action.  

3. 

POLICY OBJECTIVES 

The  general  objectives  of  the  second  phase  of  the  CEAS  with  regard  to  the  proposal  to 
amend  the  Dublin  Regulation  are  i)  to  ensure  that  the  needs  of  applicants  for  international 
protection are comprehensively addressed under the responsibility determination mechanism, 
and to increase the system's efficiency in order to reduce time and resources spent by Member 
States  and  to  ii)  contribute  to  better  addressing  situations  of  particular  pressure  on  Member 
States' reception facilities and/or asylum procedural capacities. 

The  general  objectives  are  to  be  underpinned  in  particular  by  the  following  specific 
objectives: 

I) 

II) 

III) 

IV) 

V) 

To ensure the responsibility determination procedure is operating smoothly; 

To ensure disputes between MS are tackled in an efficient way;  

To  prevent  further  overburdening  of  Member  States  in  situations  of  particular 
pressure  and  to  ensure  that  asylum-seekers  benefit  of  adequate  standards  of 
protection; 

To  strengthen  the  legal  safeguards  for  asylum-seekers  and  enable  them  to  better 
defend their rights; 

To  ensure  respect  for  the  right  to  family  unity  and  to  improve  management  of 
vulnerable groups in order to address their special needs. 

A number of indicative operational objectives are also defined. 

4. 

POLICY OPTIONS 

Taking into consideration the different nature of the above mentioned specific objectives, the 
Impact  Assessment  proposes  policy  sub-options  for  each  of  these  objectives.  The  preferred 
policy option has been constructed by combining the preferred policy sub-options identified 
for each specific objective.  

Status Quo (this option addresses all identified problems) 

Developments  in  Member  States  will  continue  within  the  current  framework.  The  existing 
legal  framework  would  remain  unchanged  and  ongoing  activities  would  continue.  The 
Commission will continue monitoring the implementation of the Dublin Regulation. 

4.1. 

Preferred policy option 

Given the level of complexity of the proposed policy sub-options, this summary is limited to 
an  enumeration  of  the  main  elements  composing  the  preferred  policy  option.  The  preferred 
policy  option  is  made  both  of  legislative  options  and  of  options  focused  on  fostering 
practical cooperation between Member States. 

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With regard to: 

ensuring  the  smooth  operation  of  the  procedure,  the  preferred  legislative  policy 

I) 
sub-options foresee: 

–  Introducing  adequate  time-limits  for  submitting  take  back  requests  and  for  replying  to 
requests on humanitarian grounds and diminishing the deadline for replying to requests of 
information ;  

–  Setting-up the obligation for Member States to carry out a specific Dublin interview with 

asylum-seekers subject to the Dublin procedure; 

–  Setting-up  rules  with  regard  to  costs  entailed  by  the  Dublin  transfers  and  clarifying  the 
consequences  in  case  of  an  erroneous  transfer  and  in  case  of  an  overruled  decision  on 
appeal after a person has been already transferred; 

–  Clarifying the circumstances and procedures for applying several clauses of the Regulation 
(the cessation of responsibility clauses, the sovereignty and the humanitarian clauses). 

The preferred practical cooperation options which complement the preferred legislative ones 
propose: 

–  Identifying and disseminating via experts meetings, best practices in performing transfers 

of asylum-seekers; 

–  Creating a handbook on the application of the Dublin Regulations, containing answers to 
questions  raised  by  Member  States'  experts  on  the  application  of  the  Regulations  in 
concrete cases and which should be used as reference for similar cases. 

II) 
ensuring  disputes  between  Member  States  are  tackled  effectively,  the  preferred 
legislative policy sub-option provides for a conciliation mechanism for all matters of dispute 
on the application of the Dublin Regulation; 

The  preferred  practical  cooperation  option  which  complements  the  preferred  legislative  one 
refer to the creation of a handbook on the application of the Dublin Regulations (the same as 
in point I). 

III) 
preventing  further  overburdening  of  Member  States  in  situations  of  particular 
pressure and ensuring that asylum-seekers benefit from adequate standards of protection in 
the responsible Member State, the preferred policy sub-option provides for the possibility to 
take a decision at EU level to suspend transfers/returns towards the Member State responsible 
in limited and well-defined circumstances; 

The  creation  of  asylum  expert  teams  coordinated  at  EU  level  to  assist  Member  States  that 
would  be  overburdened  because  of  the  high  number  of  Dublin  transfers,  is  the  preferred 
practical cooperation option, partially alternative to the preferred legislative option (it should 
be  applied  when  there  was  no  decision  to  freeze  the  returns  (according  to  the  legislative 
measure)  or  in  case  such  a  decision  was  taken,  for  a  temporary  period  until  the  situation  is 
stable in the affected Member States). 

IV) 

strengthening  the  legal  safeguards  for  asylum-seekers  and  enabling  them  to 
better defend their rights, the preferred legislative policy sub-options propose: 

–  Inserting  an  obligation  for  Member  States  to  provide  asylum-seekers  with  extended 
information  about  the  Dublin  procedure  and  their  rights  within  it.  The  need  to  adopt  a 
standard  EU-wide  multilingual  leaflet  about  the  Dublin  procedure  under  the  applicable 
comitology rules is also laid down;  

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–  Introducing the right to appeal against a transfer decision, and the obligation for the courts 
or tribunals to examine ex-officio the necessity of temporarily suspending the enforcement 
of a transfer decision;  

–  Defining limited conditions for detention of asylum-seekers under the Dublin procedure. In 
particular, such detention should be a measure of last resort, after the transfer decision has 
been  notified  to  the  asylum-seeker  and  when  all  other  non  custodial  measures  are  not 
expected  to  bring  satisfactory  results  because  there  are  objective  reasons  to  believe  that 
there is a risk of the asylum-seeker absconding; 

–  Clarifying that an asylum-seeker has in all circumstances access to the asylum procedure, 

pursuant to the rules laid down in the Asylum Procedures Directive;  

–  Retaining the right of Member States to send an asylum-seeker to a third country, but only 
after a careful examination of the safe third country criteria set in the Asylum Procedures 
Directive. 

ensuring  respect  for  family  unity  and  improving  the  management  of  vulnerable 

V) 
groups, the preferred policy sub-options propose: 

–  Strengthening the safeguards in relation to unaccompanied minors, for example: the right 
for an unaccompanied minor to reunify with relatives who can take care of him/her will be 
made  compulsory;  rules  on  the  representation  of  unaccompanied  minors  throughout  the 
procedure will be inserted; the applicability of the principle of the best interests of the child 
in the context of determining the Member State responsible will be clarified; 

–  Introducing a new provision obliging Member States to exchange relevant information (in 
particular medical information) between them before performing the Dublin transfers, with 
the primary aim of ensuring continuity in the protection offered to asylum-seekers ;  

–  Extending  the  right  to  family  reunification  by  including  applicants  and  beneficiaries  of 
subsidiary protection into the scope of the Regulation and clarifying that the application of 
the sovereignty clause  should  not  prevent an asylum-seeker  to  reunify  with  a  member  of 
his/her family. The right to reunification with dependent relatives will be made compulsory 
and the definition of 'family member' will be enlarged in order to ensure better compliance 
with  the  principle  of  best  interests  of  the  child.  Moreover,  the  application  of  the 
humanitarian clause will be extended to relatives who are not necessarily dependent on one 
another in a strict humanitarian sense (such as major siblings could be).  

The preferred practical cooperation options which complement the preferred legislative ones 
concern: 

–  The  need  for  Member  States  to  provide  staff  involved  in  the  procedure  of  determining 
responsibility  with  appropriate  trainings,  in  particular  to  allow  them  to  appropriately 
handle the cases involving vulnerable groups; 

–  The setting- up of a network of Member States experts dealing with minors. 

The main advantages of the preferred policy option are: 

•  The  efficiency  and  coherence  of  the  responsibility  determination  procedure  will  be 
increased through, for example, the setting up of adequate time-limits, the clarification of 
the  circumstances  and  procedures  for  the  application  of  several  provisions  as  well  as 
through  practical  cooperation  measures,  such  as  the  creation  of  a  handbook  on  the 
application of the Dublin Regulation; 

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•  The level of protection afforded to asylum-seekers falling under the Dublin system will be 
substantially  increased  through,  for  example,  clarifying  the  conditions  of  detention  and 
strengthening the legal safeguards related to Dublin transfer decisions. 

•  The  needs  of  Member  States  confronted  with  exceptional  situations  of  particular 
pressure  will  be  adequately  addressed  under  the  Dublin  procedure  and  the  rights  of 
asylum-seekers in this type of situations would be better guaranteed. 

As far as the main impacts are concerned: 

•  It  has  an  overall  high  positive  impact  on  fundamental  rights  of  people  under  the  Dublin 
procedure, such as: the fact that the right to family unity would be considerably reinforced 
by  enlarging  the  scope  of  family  reunification;  that  the  best  interests  of  unaccompanied 
minors  would  be  better  taken  into  account;  that  the  right  to  liberty  and  free  movement 
would be reinforced by the limitation of detention etc; 

•  By  ensuring  a  smother  and  quicker  operation  of  the  system,  and  by  better  informing 
asylum  seekers  about  the  rules  of  the  Dublin  mechanism  and  their  rights  within  it,  the 
incentive to turn to irregular secondary movements will be reduced, with a final positive 
impact on their social acceptance and integration in the receiving societies; 

As  far  as  the  financial  feasibility  is  concerned,  financial  and  administrative  costs  would 
generally  increase,  but  in  some  cases  long-term  cost-reductions  or  savings  could  occur  as 
well:  

•  Additional costs would be required to comply with the new time-limits proposed, but some 
economies  of  scale  could  be  reached  in  the  medium  term  because  of  a  more  efficient 
procedure; 

•  Some  Member  States  would  have  to  support  further  costs  when  they  will  suspend  their 
outgoing transfers due to situations of particular pressure in the responsible Member State, 
as they will have to temporarily provide an adequate status for those people not transferred;  

•  Costs would rise given that Member State would have to adapt their existing information to 
the  requirements  of  this  policy  option.  Savings  could  occur  if  the  information  provided 
fosters  a  more  collaborative  and  compliant  behavior  of  applicants  with  the  Dublin 
procedure; 

•  If granted, the suspensive effect of an appeal to a transfer decision could bring costs for the 
Member State on whose territory the applicant will remain temporarily. However, savings 
could  occur  as  well,  due  to  the  fact  that  the  costs  of  possible  transfers  back  due  to 
overruled decisions would be avoided.  

•  Reducing the occasions under which Dublin cases can be detained, should in principle lead 
to savings, as no strain would be put anymore on Member States' detention facilities and 
the considerable costs detention implies would be reduced.  

•  Costs would rise to deal with unaccompanied minors (i.e. representation) and to exchange 
information  regarding  vulnerable 
increase  for  practical 
cooperation measures, such as staff training and setting up of an expert network. However, 
many  of  them  could  be  also  co-financed  by  submitting  projects  under  the  European 
Refugee Fund.  

transferees.  Costs  could 

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5. 

MONITORING AND EVALUATION 

The monitoring and evaluation of the implementation of the preferred policy option will be an 
important  element  to  ensure  the  effectiveness  of  the  revised  Dublin  Regulation.  In  this 
respect, the Commission will regularly evaluate and report on the application of the revised 
Regulation by Member States. Regular expert meetings will continue to take place in view of 
discussing implementation problems and exchange best practices between Member States.  

The entry into force of the Regulation on Community statistics on migration and international 
protection5,  which  includes  specific  references  to  Dublin  related  statistical  data,  will 
contribute to ensuring an adequate monitoring and evaluation process.  

Moreover,  as  announced  in  the  Policy  Plan,  besides  an  evaluation  done  at  regular  intervals, 
the  Commission  is  committed  to  re-evaluate  the  principle  on  which  the  Dublin  system  is 
based, once the second stage of the CEAS is in place.  

As  for  indicators  to  assess  progress  and  effectiveness  of  the  preferred  policy  option  in 
achieving the policy objectives, the following can be taken into consideration, among others: 

•  Implementation by MS of the amendments proposed to the Dublin Regulation 

•  Resources  dedicated  to  the  implementation  of  the  amendments  proposed  to  the  Dublin 

Regulation 

•  Number of effected transfers of asylum seekers in comparison with the number of accepted 

requests of transfers 

•  Number of disputes settled under the dispute settlement mechanism 

•  Number of cases in which the sovereignty and humanitarian clauses are applied 

•  Resources used for informing and providing legal assistance to applicants for international 

protection under the Dublin procedure 

•  Number of applicants subject to Dublin procedure 

•  Transfers suspended in situations of particular pressure 

•  (Distribution  of)  Applications  for  international  protection  relative  to  population  size  (per 

1000 of inhabitants) per MS  

•  Number  of  asylum  experts  teams  created  and  sent  to  Member  States  under  particular 

pressure 

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Regulation (EC) No 862/2007 (OJ L 199, 31.7.2007). 

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