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Questions & Answers: Recommendation on the conditions for resuming Dublin transfers of asylum seekers to Greece

Met dank overgenomen van Europese Commissie (EC), gepubliceerd op donderdag 8 december 2016.

The European Commission has today presented its fourth Recommendation on the specific measures that Greece needs to take in order to have a well-functioning asylum system and sets out the conditions for the gradual resumption of transfers under the Dublin Regulation. A First Recommendation was addressed to Greece on the urgent measures to be taken in view of the possible resumption of transfers under the Dublin Regulation on the 10 February, a second Recommendation was adopted on 15 June and a third Recommendation on 28 September.

What is the Dublin regulation?

The Dublin Regulation establishes the criteria and mechanisms for determining which EU Member State is responsible for examining an asylum application. The rules aim to ensure quick access to asylum procedures and the examination of an application in substance by a single, clearly determined Member State. The core principle under the current Dublin regime is that the responsibility for examining an asylum claim lies first and foremost with the Member State which played the greatest part in the applicant's entry to the EU.

For the Common European Asylum System to work there must be a real possibility to return asylum seekers to the country of first entry to the EU, as foreseen by the commonly agreed EU rules. Ensuring a fully functioning Dublin system is an indispensable part of the wider efforts needed to stabilise the asylum, migration and border policy and to return to a normal functioning of the Schengen area. Efforts to normalise the functioning of the Dublin system should in turn lead to a return to a normal functioning of the Schengen area.

The Commission proposed in May 2016 to reform the Dublin system, notably introducing a new fairness mechanism to ensure no Member State is left with a disproportionate pressure on its asylum system. Until these reforms are adopted, however, the existing rules must continue to be applied in full.

Why are asylum seekers currently not being transferred back to Greece in accordance with the Dublin Regulation?

Dublin transfers to Greece from other Member States have been suspended since 2011 following two judgments of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) which identified systemic deficiencies in the Greek asylum system.

Since then, there have been continuous efforts by the Greek authorities, assisted by the Commission, the European Asylum Support Office (EASO), Member States and international and non-governmental organisations (NGOs) to improve the functioning of the asylum system. Greece has made significant progress in reforming its asylum system.

However, as the Commission has reported in its previous Recommendations addressed to Greece, the current refugee and migration crisis continues to place pressure on the Greek asylum and migration systems as the main country of first entry from the Eastern Mediterranean route. Even if the EU-Turkey Statement has led to a significant decrease in the number of daily arrivals to Greece from Turkey, it has also placed new responsibilities on the Greek authorities. The situation in Greece has also changed significantly, following the de facto closure of the Western Balkans route, which prevents third-country nationals from onward travel. As a result, more than 62,000 third country nationals having arrived irregularly are currently in Greece.

In order to take account the impact of this challenging situation on the overall functioning of the asylum system, and in order to avoid placing an unsustainable burden on Greece, the Commission has, in previous Recommendations, highlighted the need for further improvements. In its latest Recommendation from 28 September, the Commission announced that it would take stock of the progress made and issue further recommendations before the end of the year.

What problems are created by the suspension of Dublin transfers to Greece?

With Dublin transfers suspended, there is an incentive for asylum seekers who arrive irregularly in Greece to seek to move irregularly on to other Member States (known as 'secondary movements'), in the knowledge they will not be sent back to Greece.

This undermines the proper functioning of the Schengen system as well as the implementation of the two emergency relocation schemes. People will not voluntarily enter the relocation scheme if they think they can relocate themselves to the country of their choice. Similarly, if other Member States find that asylum seekers are reaching their borders anyway with no possibility to return them, they are less willing to accept relocation transfers.

We need to return to an orderly system. This is particularly important in view of the future reform of the Dublin system. In order for the future fairness mechanism to work effectively, Dublin transfers will need to be resumed, to remove any incentive for secondary movements.

What is the Commission recommending today as regards Dublin transfers to Greece?

In its Fourth Recommendation, the Commission notes that significant progress has been achieved by Greece in putting in place the essential institutional and legal structures for a properly functioning asylum system.

In particular, in the past year, Greece has significantly increased its overall reception capacity for both irregular migrants and applicants for international protection. Greece has also increased the accommodation for vulnerable applicants, such as unaccompanied minors. Greece has also increased the capacity of the Greek Asylum Service and substantial improvements have also been noted regarding the establishment of the Regional Asylum Offices. With the establishment of the Appeals Authority and Appeals Committees in April 2016, important progress has been made in ensuring that asylum seekers have effective access to a remedy against a negative decision on their claim and the provision of free legal aid for applicants at the appeal stage has been incorporated into Greek legislation. Legal provisions on access to education and psychosocial support to the children of asylum seekers have also been strengthened.

At the same time, the Commission identified a number of challenges (see below).

That is why today the Commission is not recommending a full resumption of the transfers to Greece. Instead the recommendation initiates a process towards the gradual resumption of the Dublin transfers to Greece. Applicants should only be transferred if the Greek authorities give individual assurances in each case that the asylum applicant will be hosted in appropriate reception centres and treated in accordance with the standards set out in EU law. For the time being, the transfer of vulnerable migrants (especially unaccompanied minors) back to Greece is not recommended.

From when will gradual transfers resume?

The resumption of transfers will not be applied retroactively and will only concern asylum applicants who have entered Greece irregularly from 15 March 2017 onwards or for whom Greece is responsible from 15 March under other Dublin criteria.

Vulnerable applicants, including unaccompanied minors should not be transferred to Greece at all for the time being.

What happens if arrival figures suddenly increase again?

The Commission will constantly monitor the situation and update its recommendation if necessary - for example, if new circumstances like the sudden increase in arrival figures to Greece require it. The Recommendation specifies that any transfers should take place on the basis of individual assurances from Greece regarding the reception of asylum seekers and the treatment of their applications. The objective of the recommendation is not to put an unsustainable burden on Greece but to ensure that the Greek asylum system functions properly and that Greece gets back in the Dublin system.

Moreover, this Recommendation is coupled with a call on other Member States to pledge and relocate at least 2,000 asylum applicants from Greece as of December 2016 and 3,000 a month as of April 2017.

Are individual safeguards guaranteed for those to be transferred back to Greece?

Greece is required to provide specific assurances in respect of each individual to be transferred concerning the manner in which he or she will be treated. This means in particular assurances that the applicant will be suitably accommodated and that his or her asylum request will be processed in a timely manner in accordance with the standards set by EU law ( Reception Conditions Directive and the Procedures Directive).

Furthermore, a support and reporting mechanism consisting of an EASO team of experts should be set up. This team will contribute to ensuring that such standards are applied in practice with regard to the transferred persons.

What are the measures still needed to be taken by Greece to improve its asylum system?

The Recommendation adopted today sets out the remaining concrete steps that Greece must take or sustain for the gradual reintegration of Greece into the Dublin system. As a matter of priority, the Commission recommends Greece urgently:

  • pursue its efforts to establish appropriate permanent and temporary open reception facilities and more importantly ensure that all these facilities offer adequate reception conditions, also during the winter, in particular as a matter of urgency for vulnerable applicants, including unaccompanied minors;
  • allow effective access to the asylum procedure, including by ensuring that the Greek asylum service is adequately staffed and organised and has the appropriate working methods in place to deal with the current and future case-load;
  • ensure that the Appeals Authority is adequately staffed and has a sufficient number of Appeals committees to deal with all pending and future appeals;
  • carry out continuous needs assessments on reception capacity as well as human resources needed to deal with asylum applications and with appeals;
  • ensure the effective implementation of the legal framework on free legal aid;
  • establish structures for vulnerable applicants, including unaccompanied minors, in particular by urgently putting in place a suitable guardianship procedure;
  • ensure that the substantial EU funding being provided is fully used in order to cater for urgent needs of the migrants present in Greece, especially regarding reception conditions, notably by mobilising without further delay the resources available under the national programmes of the Asylum Migration and Integration Fund and the Internal Security Fund.

What measures should be taken by the Member States?

In line with the principle of solidarity and fair sharing of responsibility, other Member States should also contribute to the objective of the Recommendation and take actions to facilitate the resumption of Dublin transfers to Greece.

In particular, other Member States should relocate asylum applicants from Greece in accordance with the Relocation decisions and deploy experts to assist the Greek authorities, by responding to EASO's various calls.

Member States should also closely co-operate with the Greek authorities in individual transfer cases. This cooperation includes ensuring that the person to be transferred will be suitably accommodated and that his or her request will be processed in a timely manner and in accordance with the standards set by EU law ( Reception Conditions Directive and the Procedures Directive).

What happens to asylum seekers that entered via Greece and are now in other Member States - will they ever be returned to Greece under the Dublin system?

The Commission's recommendation concerns the resumption of gradual transfers of persons who entered irregular to Greece from 15 March 2017 onwards only (or for other persons for which Greece is otherwise responsible from that date onwards under the Dublin rules). The recommendation does not concern persons who were already present in other Member States before 15 March 2017.

In most cases, the Member State where they currently reside and have made an asylum application will now be responsible for handling their asylum claims under the existing Dublin rules.

Under the current rules, there are a number of exceptions which relieve a Member State of their obligation to take back applicants they were initially responsible for, in particular:

  • if another Member State issues a residence document to an applicant, then that Member States becomes responsible for dealing with their asylum claim;
  • if 12 months have passed from the irregular border crossing and the Member State initially responsible has not accepted responsibility;
  • if a transfer does not take place within six months, then the Member State initially responsible is relieved of its obligation to take charge or to take back the person concerned and responsibility is instead transferred to the requesting Member State (this limit can be extended to one year if the transfer could not be carried out because the person was imprisoned or 18 months if the person absconds).

Under the Commission's proposals for a future reform of the Dublin system, the expiry of deadlines will no longer result in a shift of responsibility between Member States which can lead to the non-respect of the rules and the obstruction of the procedure. Under the new rules, once a Member State has been determined responsible for an asylum claim, that Member State will remain responsible.

What are the next steps?

Regular reporting by Greece on the progress being made is essential in order to ensure full implementation of the Commission Recommendation. Greece should provide a report by 15 February 2017 which should in particular include a description of how the Greek authorities are putting in place the procedure for providing assurances in individual cases of transfer in respect of the relevant EU legislation. Thereafter, Greece should report every two months on the implementation of the Recommendation.

Based on these reports and any other relevant information at its disposal or other developments, the Commission will regularly report on the progress made in the implementation of the Recommendation and update where necessary the recommendations set out in it.

What are the legal implications of this Recommendation? Is it binding?

It is a non-binding Recommendation from the Commission to the Member States. The responsibility for deciding on the resumption of transfers in individual cases lies exclusively with Member States' authorities under the control of the courts, which may make preliminary references to the European Court of Justice on the interpretation of the Dublin Regulation.

What else is the Commission doing to support Greece in improving the conditions for refugees?

The Commission and the EU agencies have been working with the Greek authorities since the start of the refugee crisis and are doing their utmost to support Greece to address the migration challenge and respond to the humanitarian needs on the ground and to improve the conditions for migrants and refugees.

Ensuring adequate reception conditions in Greece is first and foremost the responsibility of the Greek authorities. We are assisting the Greek authorities to improve the reception conditions of migrants and asylum seekers and ensure that standards laid down in EU legislation are complied with, in particular when it comes to unaccompanied minors and other vulnerable groups.

We have appointed an EU Coordinator who is present on the ground to do exactly this - helping the Greek authorities, EU agencies and NGOs to manage the situation.

In total, almost 900 (860) experts are deployed by the European Border and Coast Guard Agency (655) and EASO in Greece at the moment. The EASO presence in Greece as a whole consists of 205 experts out of which 136 are deployed on the islands (figures as of 28/11).

We have also allocated over €1 billion in financial support to Greece to manage the refugee crisis. €198 million has been provided from the Emergency Support Instrument, over €353 million has been provided in emergency funding from our home affairs funds and €509 million has been allocated to Greece under the national programmes for 2014-2020 - making Greece the biggest beneficiary of home affairs funds.

The Commission has also called on all Member States to provide support to the EU Agencies who are working relentlessly on the ground in Greece with the Greek authorities in order to alleviate the pressure in the reception facilities.

To cover the immediate needs in view of the looming winter, EU funded partners are currently carrying out winterization actions. Priority has been given to the North and West of the country, as it gets much colder there. As a concrete example, the Hellenic Red Cross is taking action to help with the winterization of camps by supplying and installing insulated tent floors, supporting the improvement of drainage and roofs covering areas where camp communities wash their clothes, and installing weather-protected changing and waiting areas in showers and toilets. In cooperation with other humanitarian actors, the Red Cross has also started to distribute emergency winter items including thermal blankets, sleeping bags, raincoats, leggings, winter socks, warm hats, gloves and scarfs to migrants and refugees at 7 different camps on mainland Greece and other sites as needed.

What is the Commission doing to support in particular unaccompanied minors?

The protection of vulnerable migrants, including unaccompanied minors, is a top priority for the European Commission.

The Commission is particularly concerned by the conditions for unaccompanied minors and vulnerable applicants in Greece, and indeed President Juncker chose to highlight this issue in his 2016 State of the Union address, calling on Greece to address this issue urgently.

The best interest of the child should be the primary consideration in all procedures applicable to unaccompanied minors. EU legislation on asylum, immigration and trafficking in human beings include specific provisions on the protection of the interests of unaccompanied minors which all Member States are obliged to comply with. The Common European Asylum System provides for representation of unaccompanied minors throughout the asylum process, for example through placement with adult relatives, foster families or appropriate accommodation centres, and for their welfare to be constantly taken into account.

On 13 July 2016, the Commission proposed to further reinforce the guarantees for unaccompanied minors, including in particular measures aimed at securing prompt and effective guardianship for these children. According to the new rules the responsible authorities will have to appoint a guardian as soon as possible and no later than five working days from the moment an unaccompanied minor makes an application for asylum. These proposals are part of a broader reform of the Common European Asylum System presented by the Commission in May and July 2016 (including a reform of the Dublin mechanism). The European Parliament and the Council now need to agree on the Commission proposals to adopt the reform.



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