3. The Dublin procedure
> For more details see: Gisti, Les notes pratiques, L’accompagnement des demandeurs et demandeuses d’asile en procédure « Dublin », avril 2018. (Gisti, Practical guides, Accompanying asylum seekers in the Dublin procedure, April 2018).
According to the rules of Dublin III, only one Member State is responsible for the assessment of an asylum request in the European Union.
According to these rules:
- If you asked for asylum in another member state of the EU, this country stays responsible for your asylum request (whether the request is ongoing or rejected);
- If you didn’t ask for asylum elsewhere, “the Dublin III” regulations provide criteria that will enable France to determine the country responsible for the asylum request. For example, it can be the country which issued your first visa or a residence permit, or the country through which you entered the EU in and in which you first had your identity checked. This responsibility of member states ends twelve months after the date of an illegal crossing of the border. Other criteria, more positive, are provided such as the being a minor or having family in France (articles 7 to 17 of theAppel à soutiens ! regulations).
A. The prefecture determines which Member State is responsible for an asylum request
To do so, it consults:
- the visa information system (Visabio) to determine if you received a visa for another EU member state;
- the Eurodac file in which your fingerprints are recorded if they were taken in one of the 28 Member State of the European Union or the 4 associated countries: Norway, Iceland, Switzerland and Lichtenstein.
The Eurodac file collects data on:
- asylum seekers (category 1 – fingerprints kept for 10 years);
- persons apprehended while illegally crossing an external border (category 2 – fingerprints kept for 18 months).
Persons who are illegally in the territory of a member state (category 3) can also have their fingerprints checked and compared, but their fingerprint will be destroyed after being compared.
B. The Dublin Procedure in action
If it is proven that you have traveled through another EU country, you are placed in the Dublin procedure; you will then attend an individual interview either with a translator or with a translator by telephone. The prefecture must provide you with a detailed report of the interview, as well as several information brochures in a language that you understand: one on the taking of fingerprints (brochure A1), one on the “Dublin” procedure (brochure B2) and one aboutthe Eurodac regulations. Even if it is not the country responsible for the asylum request, France still has the possibility to examine your request (see in particular article 17 of the regulation: discretionary provisions). This is why you must provide the prefecture with any information which could encourage the French authorities to examine your asylum application, such as:
- the legal presence in France of members of your family with residence permits, who are seeking asylum or who are protected;
- if you have health problems;
- if you are pregnant;
- ill treatment you have experienced while in the EU country to which it is intended to return you.
During the “Dublin” procedure, France and the country responsible for your request have deadlines to respect (a time limit to contact the other country’s authorities and a time limit to answer).
|Time limit to contact the other country||Time limit to for the other country to answer France||Time limit to transfer|
|1. requests to take back||3 months||1 month||6 months ((1 year in the case of imprisonment; 18 months in the case of escape) - If appeal is rejected by administrative court: the time limit starts over.|
|1. requests to take back (if you are in the Eurodac category 1file*)||2 months||15 days||Idem (6, 12 ou 18 months)|
|2. Requests to take charge)||3 months||2 months||Idem|
|2. Requests to take charge (if you are in the Eurodac category 2 file **)||2 months||1 month if it is urgent||Idem|
|Detention center||1 month||15 days||6 weeks|
* Category 1: fingerprints of all those who have applied for asylum in Member States.
** Category 2: fingerprints of persons who have been apprehended during illegal crossing of the external border of a Member State.
There is also a category 3: fingerprints of persons who were illegally in the territory of a Member State, when the competent authorities consider it necessary to verify the existence of a previous asylum application.
If you haven’t been transferred within 6 months starting on the day when the responsible country gave its consent (date stated on the transfer decision), France becomes the country responsible for your asylum request. You can also check the end of the 6-month time limit on the “laissez-passer” the prefecture has given you. If you made an appeal against the transfer decision, the 6-month deadline starts over again at the date of notification of the court’s decision (see E. Appealing a transfer decision).
D. You are declared to be “fleeing”
You will be declared to be “fleeing” if you missed one or more appointments at the prefecture, the Ofii, with the police or at the airport. In the last few months more and more people are said to be “fleeing”, and this happens as soon as the asylum application is submitted because the prefectures have been assigning more asylum seekers to house arrest, which requires them to sign in regularly at a police station. In addition, the appointment letters for the prefectures are sometimes written in such frightening terms (“appointment at the expulsion office, come with your luggage, go to the border police office in order for execution of the transfer”) that asylum seekers are afraid to go...and are declared to be fleeing.
If you are declared to be “fleeing” and you do not appeal or you lose your appeal to the court, the amount of time after which France is again responsible for your asylum request becomes 18 months. You will have to wait 18 months to apply for asylum again in France.
If you are declared to be “fleeing” the Ofii will stop giving you the ADA allowance. Regarding housing, it depends on the center in which you are housed: some will try to keep you as long as possible and some will not hesitate to kick you out. After 18 months, you can return directly to the Guda to submit your asylum application in France. It is possible the Ofii may then refuse to provide you with the material reception conditions. In this case, contact an association.
E. Consequences for your asylum request
During the entire time of the Dublin procedure:
- You cannot make an asylum request in France. The prefecture will provide you with a specific “Dublin procedure” asylum application certificate;
- You have the same rights as other asylum seekers (asylum seeker’s allowance, health insurance, schooling for your children, etc.). As for housing, you do not have the right to a place in a housing center for asylum seekers (Cada) but in another type of center (factsheet 2);
- You can be placed under "house arrest" ("assignation à résidence") during part of the procedure and even be placed in a detention center, before being sent to the country responsible for your asylum request. Detentions are more and more frequent, especially since the adoption of the law of the March 20th 2018 “for a good application of the European asylum system” legalizing detention for most people in the “Dublin” procedure, considering that there is a “non-negligible escape risk” justifying this placement.
F. Appealing a “Dublin” transfer decision
When the responsible country has given its approval,a transfer ruling is notified. You may contest this decision before the administrative court (this appeal suspending the transfer).
- You must present your case to the administrative court within 15 days of receiving the transfer decision.
- If you are placed in detention or house arrest you must bring your case before the court within 48 hours of receiving the transfer decision.
Warning: requesting legal aid does not stop the clock for these deadlines Your transfer cannot take place either before the end of this period nor before a judge has made their decision.
Before you start an appeal, you should contact a lawyer or an association that knows these procedures in order to judge how useful it would be. Certain procedural irregularities may allow the judge to annul the transfer decision (your right to be informed, translation). But it is also possible to use substantive elements, for example if you have suffered mistreatment in the country to which France wants to send you back, or if the reception conditions for refugees in this country are bad (failure of the state). Both of these types of arguments are important for challenging a transfer.
> For more information on appealing a transfer decision, consult the practical note on the Gisti website: L’accompagnement des deman-deurs et demandeuses d’asile en procédure « Dublin » (Accompanying asylum seekers in the "Dublin" procedure).
Appealing is a double-edged sword. If you appeal a transfer decision, the 6-month time limit to transfer you is not calculated starting from the answer of the responsible country but from the notification of the final court ruling. Therefore, the 6-month time limit begins “all over again” starting from the date of notification of the court ruling. Be careful then if the transfer decision was notified to you at the end of the “Dublin Procedure” (at end of the 4th or 5th month), as France will have a new 6 months to transfer you, starting with the notification of the decision. If the judge annuls the decision for strictly formal reasons (for example the obligation to inform was not respected), the prefect can still take another transfer decision in due form. If the decision was annulled for substantive reasons (for example an error made by the administration that cannot be "repaired", or if you have been subjected to mistreatment in the responsible country or that country has no "capacity" to receive you – failed state) the prefecture cannot issue a new transfer order. Thus, if the judge has annulled the transfer decision with an injunction to the prefecture to register the asylum application, the prefecture will have to obey it.
Thus, after a hearing, even if the court has annulled the transfer decision, it is better not to show up, and to wait for the end of the initial period of 6 months before returning by oneself to the prefecture. In any case, consult an association or your lawyer before going there.
If you already have appointments set in the framework of a transfer procedure, if the order was annulled, you legally have no obligation to show up for them. However, very often, if you do not show up for these appointments, the prefecture will declare you “fleeing” and you will lose the ADA allowance (factsheet 2).
It is important to be able to meet your lawyer in order to bring them useful information; if they do not call you, try to contact the court clerk to find out the date of the hearing which will generally be held a few days later.
In case of an appeal of the court’s decision by the prefect or by you, the time period after which France becomes responsible for your asylum application will not be extended; the prefecture must register it, in principle in the normal procedure.
If you wish to appeal the decision of the administrative court rejecting your request, you should know that judgment will take a long time. If you have the means to challenge this rejection, this recourse can be useful, in particular if you are later declared to be fleeing.
G. Appealing a house arrest order
If you are placed under "house arrest" ("assignation à résidence"), you will usually have to go to a police station, often twice a week or more, to sign a register.
If you fear being arrested there, ask an association for advice before deciding, because not going could also have serious repercussions: being declared to be “fleeing” and having to wait 18 months without any rights before being able to ask for asylum in France.
Appealing a "house arrest" decision will have the same consequences as appealing a transfer decision (the 6-month time period after which France becomes responsible for your request starts running again from the date of the court’s decision). Warning: The practices of the prefectures are quickly changing because of a clear intention to transfer more people or declare them “fleeing”. The choices you must make at the different stages (appeals, invitations to appointments) will have more or less significant consequences depending on the prefectures (arrest, being declared to be “fleeing”).
>For the different practices in the prefectures of the Île-de-France region see: www.lacimade.org/dublin-etat-des-lieux-et-conseils-pratiques-en-ile-de-france/
H. Transferred persons who come back to France
If you come back to France after being transferred to another EU member state, different situations can occur:
- the prefecture refuses to register your asylum application. In that case, contact an association to take legal action against the refusal;
- the prefecture accepts to register your application but places you again in the “Dublin” procedure; it appears that prefectures have been encouraged to do this. It’s possible to explain to the prefecture that you were subject to an obligation to leave the territory of the country to which you were transferred, or explain that the authorities forced you to go back to France. If you have kept some documents proving this you must bring them (decision of the country asking you to leave their territory, photos of the mistreatment you were subject to, etc.). It can also be useful to bring documents proving that you have strong links to France; they can influence the prefecture’s decision. Try to go to the prefecture with a person who speaks French well and can explain your situation. It’s important to always keep a copy of your obligation to leave the territory of the country initially responsible for your request, because some prefectures keep this document. If the prefecture doesn’t take it into account, you will be able to produce these proofs in front of the judge when you are appealing your transfer decision.
- the prefecture registers your asylum request but you are placed in the “fast-track” procedure (procédure accélérée) with the justification that you “failed to comply with the Dublin procedure”. In that case, contact an association to engage legal proceedings if, following this, the Ofii refuses to grant you the ADA allowance.
- finally, in the best-case scenario, the prefecture can register your asylum request in the normal procedure and hand you the Ofpra application file.
A criminal punishment which already existed for others has just been extended to persons in the Dublin procedure (Ceseda, Art. L. 624-3): the court can sentence to three years’ imprisonment any person who has avoided or who has tried to avoid the execution of a transfer decision. This measure targets in particular persons who return to France after their transfer. Similarly, a transferred person who has re-entered France without authorization will be punished by three years’ imprisonment.