Will you be sent back to Italy if you had your fingerprints taken there, but then applied for asylum in another EU country? What happens if you are to be deported under Dublin but you refuse? We put these questions and more to a number of experts, including German lawyer Albert Sommerfeld.
The Dublin Regulation (sometimes referred to as Dublin III)
is European Union law. It determines which country is responsible for examining
an asylum application – normally the country where the asylum seeker first
One of the aims of the Regulation is to ensure that an individual does not make multiple applications for asylum in several Dublin member states. These include the member countries of the EU plus Iceland, Norway, Switzerland and Liechtenstein. The UK remains bound by the Dublin Regulation until December 31, 2020.
What happened with the Dublin Regulation during COVID-19?
In March 2020, travel was suspended between most European countries in order to stop the spread of COVID-19. While the Dublin Regulation continued to apply, most transfers between the Dublin member states were suspended from mid-March onwards.
In June, travel and border restrictions all over Europe began to be lifted, making it possible for countries to resume Dublin transfers. The European Asylum Support Office told InfoMigrants on June 24, 2020 that: "Member States have indicated that they plan on gradually organizing more Dublin transfers in the weeks to come, all whilst respecting the public health and safety measures in place."
Before the COVID outbreak, InfoMigrants asked a lawyer to answer some questions received on Facebook about Dublin. We held off publishing the answers until it became clear that the system would resume post-COVID restrictions. This now seems to be the case.
There are various criteria for deciding why a country may be responsible for examining an asylum application, as well as complicated time limits and restrictions. Some basic rules are:
- If you are an asylum seeker who entered Europe and had your fingerprints taken in one Dublin country but you are now in a different Dublin country, then that country will ask the first country to "take you back".
- If you applied for asylum in one Dublin country and were rejected by a final decision there, and then you moved to another Dublin country and did not apply for asylum, you may be sent back to the initial arrival country or returned to your country of origin or permanent residence or sent to a safe third country.
- If a country accepts responsibility for examining your application, you will be transferred within 6 months of the date when that country accepted responsibility or, if you challenge the decision, within 6 months from the time the court or tribunal decides that you may be sent to that country. This time limit can be extended to 18 if you run away from the authorities or to 12 months if you are imprisoned.
- You have the right to say that you disagree with a decision to send you to another Dublin country. This is called an ‘appeal’ or ‘review’. You can request a suspension of the transfer during the appeal. (The question whether to file an appeal should be discussed with a lawyer or counselling service.)
- You can be detained if the authorities consider that there is a significant risk that you will run away (abscond) because you do not want to be sent to another Dublin country. You have the right to challenge the detention order.
Lawyer Albert Sommerfeld, from the firm Sommerfeld, Heisiep, Gosmann, based in Soest, Germany, provided the following answers to your questions. Loredena Leo and Gennaro Santoro from the Italian Coalition for Civil Liberties and Rights, and Dirk Morlok from Pro-Asyl also contributed valuable advice and feedback.
If an asylum seeker was in one European country and then left the EU (for example, entered Turkey) before coming back to a different country in Europe, what happens then?
Albert Sommerfeld: If one country is responsible for handling an application for asylum, its obligations cease if the person concerned has left the territory of the member states for at least three months. The applicant has to prove that he or she left the territory of the member states. In this case, the Dublin rules will apply again, so the outcome depends on the situation after the person’s second entry.
I arrived in one European country and then moved to another and requested asylum there. Will my asylum case be accepted? If not, what should I do after that?
A.S.: There is no free choice when it comes to the country in which you can apply for asylum. The Dublin rules determine which state is responsible for treating an application for asylum. In general, it is the state where you entered the Dublin area first. Other rules may apply. You are not supposed to move to another country. If you do, you will likely be sent back to the country responsible for your application. Yet the Dublin system is dysfunctional. You may well succeed in having an asylum procedure in the country of your choice, for various reasons. However this is in no way certain. If you have received recognition in one country, you are no longer a Dublin case. Another country may simply refuse to treat another application for asylum.I had my fingerprints taken in Greece. If I go to another EU country, is it possible to apply Dublin on me?
A.S.: Yes, of course. Whether you will be sent back to Greece may depend on political considerations.
I arrived in Croatia and they took my fingerprints but I didn‘t ask for asylum there. Then I went to Austria and applied for asylum, but they rejected me after three months without any reason, saying only that I would have to go back to Croatia to proceed (with) my asylum case. Do you have any suggestions for me?
A.S.: See a local lawyer. The mere fact that you went through Croatia may be enough to establish Croatia’s responsibility for your asylum claim.
Under the Dublin Regulation, families and relatives who are separated across different European countries can be reunited during their asylum claim. Unaccompanied children can apply to join a parent, legal guardian or sibling, aunt, uncle or grandparent who is living in Europe. Adults can apply to join their family members (spouse/partner or children) in another Dublin country if the family member is an asylum seeker or refugee, or has been granted subsidiary protection.
If someone has had their fingerprints taken in Italy and had an asylum interview there and the result was negative, is it possible to go to another EU country to apply again for political asylum with family? Is there a possibility for the Dublin regulation (to be applied) again?
A.S.: Dublin rules do apply to all asylum seekers. They say that you can apply once for asylum in one country. If you move to another country, they might send you back to the country that rejected your application.
If I get to Europe and I already have a son over there, will I be granted asylum?
A.S.: It depends. To have a son already in Europe is a reason for a visa or a residence permit, in certain circumstances, but in general not a reason for asylum. The exception is Germany. If certain conditions are met, you may be entitled to asylum if
- the son is less than 18 years of age
- you have lived together as a family in your country of origin
- you lodge your application for asylum immediately after entry, and
- you have legal custody for the child.
I work in Germany but my wife’s asylum claim has been rejected. We are afraid she will be deported. The kids are still small. What is the best advice for me if I am about to lose the family I love so much?
A.S.: See a local counsel to find a solution. Your question implies that you have a residence permit, but your wife and children do not. It is not completely left at the discretion of state authorities to separate families.
18-month ‘extension of Dublin’
I have a ‘Duldung’ (temporary suspension of deportation). I was about to be deported to Italy under Dublin and I refused to go, but I was advised that I could stay in Germany for 18 months without the police sending me back to Italy, and then I could reapply for asylum. What do you know about this please?
A.S.: Your information is correct. Please be advised that you can be deported at any moment until you reach that 18-month deadline.
When exactly do the 18 months (after which an asylum seeker can ask for asylum in another European country) start to count? For example, a friend of mine entered the EU in Italy, then travelled to the Netherlands, asked for asylum in July 2019 and was rejected on the basis of the Dublin Regulation in October 2019. He asked me when the 18 months start to count, in July or October?
A.S./G.S./L.L./D.M.: The 18 months start from when Italy accepts jurisdiction. In Germany, you will find this date in the notification of the deportation order. If you lodge an appeal with suspensive effect, the 18 months start with the rejection of the appeal by the court.
Work and Dublin
I hold a 2-year Italian work permit (‘lavoro’). If someone in Germany offers me a work contract and a residential address there, can I transfer my Italian document to Germany? If this person were to go to Germany – with or without a job lined up there – could they be sent back to Italy under Dublin?
A.S/D.M.: If you are a resident in Italy, you must apply for a German visa and work permit (which is normally only issued for skilled jobs). If you come to Germany without a visa, you will not get a work permit. You should discuss what to do next – and whether to apply for asylum – with a lawyer or counselling service. EU member states grant long-term residence status to third-country nationals who have resided legally and continuously within their territory for five years immediately prior to the submission of the relevant application. These long-term residents may move freely in the EU.
Finding a good lawyer
How do you find the right lawyer for an asylum claim if you’ve recently arrived in Germany and do not know anyone?
A.S.: Consult www.dav-migrationsrecht.de. Put your postcode in the field “Postleitzahl” and you get a list of the nearest qualified lawyers.
(InfoMigrants: You can also ask the Refugee Council (Flüchtlingsrat) in your state. You will find their contact details here.)
A Libyan who has been in the UK for 6 years (granted temporary leave to remain on a 6-month basis) is desperate and has asked to be deported back to Libya. However, the UK does not deport back to Libya because of the horrendous conditions (there). Can anything be done?
A.S.: Why seek deportation if you can travel on your own? Ask a welfare organization for help with voluntary return.
Note: The law of international protection overall is very complicated. "Asylum" here is used as an umbrella term for various forms of international protection.
Germany: Suspension of Dublin time-limit during coronavirus pandemic
Germany temporarily stopped sending asylum seekers to Italy and other European countries under the Dublin system in March due to the coronavirus pandemic. Controversially, it also suspended the six-month time limit after which they would normally no longer be at risk of a Dublin deportation.
A person completed his 6 months while the pandemic was ongoing -- for example June 1. What will happen? More than 20,000 people received letters from the BAMF that the six months are being recounted.
Wiebke Judith, legal advisor at Pro Asyl: Germany started to lift the suspensions on the returns/time limits on 15 June – but this happens on an individual basis. So the time limit (meaning the 6 months by which Germany has to send someone back before it becomes responsible for their asylum claim) is only wound back to zero if the asylum seeker receives a letter informing them that the suspension has been revoked.
But also note: The suspension (of the 6-month time limit) in itself is highly problematic and a couple of courts have found it to be unlawful, as there is no basis in EU law for suspension because of a pandemic. So if a person's original 6-month deadline expires, they should seek legal advice and ask the BAMF to start their asylum procedure here with Germany as the responsible member state, as the suspension was not lawful in the first place and thus not applicable.
More information here (in German): https://www.proasyl.de/hintergrund/praxishinweise-zur-aktuellen-aussetzung-von-dublin-ueberstellungen-und-ueberstellungsfristen/