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
Date: 2009-01-19
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, 19.1.2009 
SEC(2008) 2963/2 

CORRIGENDUM : concerns EN, FR, DE 

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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1. 

INTRODUCTION 

The adoption of a proposal for the amendment of the Council Regulation (EC) No 343/2003 
on the criteria and mechanisms for determining the Member State responsible for examining 
an  asylum  application  lodged  in  one  of  the  Member  States  by  a  third-country  national 
(hereafter  referred  to  as  the  Dublin  Regulation)1  was  included  in  the  Commission's  Work 
Programme for 20082 as one of its strategic initiatives. 

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

Regarding  the  Dublin  Regulation,  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.  

Finally, several expert' meetings were organised between October 2007 and July 2008 with 
Member States, NGOs and the UNHCR, lawyers and 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  during  the  consultation  process  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 receiving an adequate standard of protection;  

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4 

CLWP reference No: 2008/JLS/022 
COM (2007) 640 
Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  evaluation  of  the 
Dublin system, COM (2007) 299 final, 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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•  Inadequate  information  and  legal  safeguards  for  asylum-seekers  under  the  Dublin 

procedure;  

•  Family unity and the interests of children and 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 
for  determining 
responsibility,  and  to  increase  the  system's  efficiency  in  order  to  reduce  the  time  and 
resources  spent  by  Member  States  and  ii)  to  contribute  to  better  address  situations  of 
particular pressure on Member States' reception facilities and/or asylum procedural capacities. 

the  mechanism 

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

I) 

II) 

III) 

IV) 

V) 

To ensure that the procedure for determining responsibility operates smoothly; 

To ensure that disputes between Member States are tackled in an efficient way;  

To  prevent  further  overburdening  of  Member  States  confronted  with  situations  of 
particular pressure and to ensure that asylum-seekers receive an adequate standard 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  the  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) 

The existing legal framework would remain unchanged and ongoing activities in the Member 
States  would  continue.  The  Commission  would  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. 

With regard to: 

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ensuring that the procedure operates smoothly, the preferred legislative policy sub-

I) 
options foresee: 

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

–  Setting up rules concerning the Member State which has to bear the costs entailed by the 
Dublin  transfers  and  clarifying  the  consequences  in  the  case  of  erroneous  transfers  and 
where a transfer decision has been overturned on appeal after the person has already been 
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  meetings  of  experts,  best  practices  in  carrying  out 

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 a reference for similar cases. 

II) 
ensuring  that  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 
refers 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  confronted  with  situations 
of  particular  pressure  and  ensuring  that  asylum-seekers  receive  an  adequate  standard  of 
protection in the responsible Member State, the preferred policy sub-option provides for the 
possibility  to  take  a  decision  under  the  applicable  comitology  rules  to  suspend  transfers 
towards the Member State responsible in limited and well-defined circumstances; 

The setting up of asylum expert teams coordinated at EU level to assist Member States that 
would  be  overburdened  by  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  suspend  the  transfers  (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.  Moreover,  Member 
States  will  be  obliged  to  carry  out  a  specific  Dublin  interview  with  the  asylum-seekers 
subject to the Dublin procedure. The need to adopt a standard EU-wide multilingual leaflet 
about the Dublin procedure under the applicable comitology rules is also laid down;  

–  Establishing  the  right  to  appeal  against  a  transfer  decision,  and  obliging  the  courts  or 
tribunals to examine on their own initiative the need to temporarily suspend enforcement 
of a transfer decision;  

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

–  Clarifying that an asylum-seeker subject to the Dublin procedure shall in all circumstances 
have access to the asylum procedure, in accordance with the rules laid down in the Asylum 
Procedures Directive;  

–  Retaining the right of the Member States to send an asylum-seeker to a third country, but 
only  after  a  careful  examination  of  the  safe  third  country  criteria  set  out  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 
of unaccompanied minors to reunite with relatives present in a different Member State who 
can  take  care  of  them  will  be  made  compulsory;  a  rule  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  determining  the  responsible  Member  State 
will be clarified; 

–  Introducing  a  new  provision  obliging  Member  States  to  exchange  relevant  information 
(such  as  medical  information)  before  carrying  out  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 for and beneficiaries of 
subsidiary protection within the scope of the Regulation and clarifying that the application 
of the sovereignty clause should not prevent asylum-seekers from reuniting with members 
of  their  family.  The  right  to  reunification  with  dependent  relatives  will  be  made 
compulsory and the definition of 'family member' will be extended in order to ensure better 
compliance with the principle of the '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 adult 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  for  determining 
responsibility  with  appropriate  trainings,  so  that  they  can  appropriately  handle  cases 
involving vulnerable groups in particular; 

–  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  procedure  for  determining  responsibility  will  be 
increased through legislative measures, such as, 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; 

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

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•  The needs of Member States confronted with situations of particular pressure would 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: 

•  The  preferred  policy  option  has  an  overall  strong  positive  impact  for  the  asylum-seekers 
subject to the Dublin procedure, from a fundamental rights point of view. In particular: the 
right  to  family  unity  would  be  considerably  reinforced  by  extending  the  scope  of  family 
reunification  under  the  Dublin  procedure;  the  best  interests  of  unaccompanied  minors 
would  be  better  taken  into  account  during  the  Dublin  procedure;  the  right  to  liberty  and 
free movement would be reinforced by the limitation of detention etc; 

•  By ensuring a smother, quicker and more protective operation of the system, and by better 
informing asylum-seekers about the application of the Dublin mechanism and their rights 
within it, the incentive to resort to irregular secondary movements could be reduced, with a 
final  positive  impact  as  regards  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 arise as well:  

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

•  Some Member  States  would  face further costs if a decision is taken to suspend outgoing 
transfers to the responsible Member State due to situations of particular pressure, as they 
would  become  responsible  for  examining  the  applications  of  the  persons  not  being 
transferred;  

•  Costs  would  rise  where  Member  States  have  to  adapt  their  existing  information  to  the 
requirements of this policy option and to set up a Dublin specific interview. Savings could 
arise if the information provided fosters a more collaborative and compliant attitude on the 
part of applicants under the Dublin procedure;  

•  If granted, the suspensive effect of an appeal to a transfer decision could bring costs for the 
Member State where the applicant is to remain temporarily. However, savings could arise 
as  well,  due  to  the  fact  that  the  costs  of  possible  returns  following  overturned  decisions 
would be avoided.  

•  Reducing  the  cases  where  Dublin  applicants  can  be  detained  should  in  principle  lead  to 
savings, as the strain on Member States' detention facilities and the considerable costs this 
implies would be reduced.  

•  Costs  would  increase  to  deal  with  unaccompanied  minors  (i.e.  for  ensuring  their 
representation  throughout  the  Dublin  procedure)  and  to  exchange  information  regarding 
vulnerable  transferees.  Costs  could  increase  for  practical  cooperation  measures,  such  as 
training staff and setting up an expert network. However, a large proportion could also be 
co-financed by projects under the European Refugee Fund.  

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 

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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 
protection,5  which  includes  specific  references  to  Dublin-related  statistical  data,  will 
contribute to ensuring adequate monitoring and evaluation.  

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

The following main indicators could be used to assess the progress and effectiveness of the 
preferred policy option in achieving the policy objectives: 

•  Implementation by Member States of the amendments proposed to the Dublin Regulation; 

•  Resources devoted to implementing the amendments proposed to the Dublin Regulation; 

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

transfer requests; 

•  Number of disputes settled under the dispute settlement mechanism; 

•  Number of cases where the sovereignty and humanitarian clauses are applied; 

•  Resources  used  to  inform  and  provide  legal  assistance  to  applicants  for  international 

protection under the Dublin procedure; 

•  Number of applicants subject to the Dublin procedure; 

•  Transfers suspended in situations of particular pressure; 

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

1000 inhabitants) per Member State;  

•  Number  of  asylum  expert  teams  set  up  and  sent  to  Member  States  under  particular 

pressure. 

5 

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

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