PURPOSE: to recast the so-called “Dublin Regulation” for determining the Member State responsible for examining an application lodged by a third-country national or a stateless person.

LEGISLATIVE ACT: Regulation (EU) 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)

CONTENT: the European Parliament and the Council adopted a Regulation recasting the so-called 2001 “Dublin Regulation” with a view to 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, thus completing another step towards the establishment of a common asylum procedure in the Union.

The recasting of the Regulation is an integral part of the revision of the Community acquis in the area of asylum policy and the setting in place of a Common European Asylum System .

The main points covered by this revision may be summarised as follows:

Objective: the recast of the Regulation mainly seeks to improve the effective of the operation of the previous Regulation and lay down higher standards of protection in favour of applicants with respect to the procedure for determining the responsibility, in applying the Regulation’s legal framework.

Scope: the Regulation applies to applicants for international protection as well as applicants for subsidiary protection.

Principles and safeguards for applicants:

- right to information: the revised Regulation provides that the applicant shall have the right to receive in writing (or orally, if applicable) and in a language he/she understands detailed information on the content of the Dublin Regulation upon submission of the application. To this effect, provision is made for a common leaflet (as well as a specific leaflet for unaccompanied minors) to be drawn up by the Commission in accordance with its implementing powers;

- individual interview: the Regulation makes provision for the organisation of an individual interview (and by means of an interpreter, if necessary) with the applicant in due course and in an appropriate manner in order to facilitate the process of determining the Member State responsible. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible before a decision is taken to transfer the applicant;

- guarantees for minors: the principle of the best interests of the child underlies the relevant provisions of the Regulation. Member States shall be required to ensure that there is appropriate representation for minors and to take, as soon as possible, appropriate action to identify the family members or relatives of the unaccompanied minor on the territory of another Member State. Member States may call for the assistance of appropriate international organisations for this purpose. Staff dealing with minors shall have (and continue to receive) appropriate training.

Criteria for determining the Member State responsible: the hierarchy of criteria for determining the Member State responsible remains the same. However, the new regulation provides for the following new standards:

- unaccompanied minors and definition of relatives: the revised Regulation lays down the legal framework which governs the reunification of the unaccompanied minor (the case of married minors, where the spouse is not legally on the territory of a Member State is also covered) with members of his/her family, brothers and sisters or relatives, as well as the conditions applicable for each provision with a view to making the Member State in which the reunification will take place responsible for examining the application . The primary consideration to be applied in all cases is that any reunification is in the best interests of the minor .

The requirement concerning the best interests of the minor also applies in the absence of a family member, sibling or relative , in which case the Member State responsible is that in which the unaccompanied minor lodged his or her application. The Commission shall be empowered to adopt delegated acts in this context. Moreover, in the annex, there is a statement by the European Parliament, the Council and the Commission inviting the Commission to consider a possible revision in the future of this provision.

The Regulation also seeks to counter abuses of the asylum procedures. In this context, for the purposes of family reunification, the definition of “relative” now specifically covers the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State.

- revision of the definition of unaccompanied minor: the revised Regulation provides that the unaccompanied minor may or may not be married.

Dependent persons and discretionary clauses:

- dependent persons: the Regulation lays down the framework for the handing over of asylum applicants who, because of their particular vulnerability, are dependents. Thus, and in order to ensure that the principles of family unity and the best interests of the child are respected, the existence of a relationship of dependence between the applicant and his/her child, brother or sister or father or mother, on account of pregnancy, a new-born child, serious illness, sever disability or old age, shall constitute a binding responsibility criterion. Likewise, when an applicant is an unaccompanied minor, the presence in the territory of another Member State of another member of his/her family or of another relative who could take responsibility for him/her, shall also constitute a binding responsibility criterion.

- discretionary clauses: under the previous Regulation, a Member State can always decide to examine an application for international protection that is lodged with it, even if such examination is not its responsibility under the criteria normally applied (discretionary clause). The scope of this provision has, however, been revised so that the reference to “humanitarian grounds” is more strictly defined in order to bring together any family relations on humanitarian grounds based in particular on family or cultural considerations .

Obligations of the Member State responsible: in the context of the chapter that lays down the obligations of the Member State responsible, the Regulation makes provision for strengthened requirements at legal and procedural level designed to safeguard applicants’ rights and to render cooperation between the Member States concerned more efficient in practice.

More specifically, these concern:

rules for the taking charge and taking back charge of an applicant; basic procedural guarantees; remedies.

Transfer to another Member State and means of recourse: as under the old Regulation, when an applicant is to be transferred to another Member State in accordance with the Dublin principle, the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible for examining his or her application for international protection. The new Regulation introduces the right of the person concerned to appeal, emphasising their right to an effective remedy, in fact and in law, against a transfer decision, before a court or tribunal. Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy.

The revised Regulation also lays down the rules under which the person concerned shall have the right to free legal assistance, where applicable, in order to effectively exercise his/her right to effective remedy to avoid a transfer. Member States may, however, provide that free legal assistance and representation not be granted where the appeal or review is considered by the competent authority or a court or tribunal to have no tangible prospect of success.

As a corollary to these measures, a new provision has been added which governs the determination of the Member State responsible for the examination of the application where the transfer of the person concerned is impossible due to a real risk of that person’s fundamental rights being violated in a Member State . In this case, the determining Member State shall become the Member State responsible.

Holding in detention: the Regulation provides a comprehensive framework in which the conditions whereby a person concerned may be placed in detention may be applied on the basis of Dublin “reasons”. When there is a significant risk of absconding , Member States may detain the person concerned in order to secure transfer procedures, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary.

Early warning, preparedness and management of asylum crises: the Regulation provides for a process to allow the Union to promote preventive measures at an early stage and pay the appropriate attention to situations in which the application of the Dublin Regulation might be jeopardised (with direct effects for applicants who find themselves in the Member State concerned) due to particular pressure on the asylum system of a Member State or problems in its operation. It seeks to provide for effective cooperation and to strengthen mutual trust and solidarity between Member States by preventing a crisis in the asylum system of one or several Member States. The Member State that finds itself under particular pressure shall be called upon to prepare a plan of preventive action and provisions for measures aimed at addressing a particular pressure, including for example, a specific crisis management mechanism.

Throughout the entire process for early warning, preparedness and crisis management established in this Article, the Council shall closely monitor the situation.

The European Parliament and the Council may, throughout the entire process, discuss and provide guidance on any solidarity measures as they deem appropriate.

All the parties concerned (the Member State that is experiencing particular pressure, the European Asylum Support Office, the Council and the European Parliament) shall be duly kept informed and, where considered necessary and appropriate, shall be associated in decisions taken.

Report: by 21 July 2016, the Commission shall report to the European Parliament and to the Council on the application of this Regulation and, where appropriate, shall propose the necessary amendments.

Territorial provisions: Denmark is not taking part in the adoption of this Regulation and is not bound by it, in accordance with the relevant provisions of the Treaty. The provisions of the Regulation only apply to France’s European territory.

DELEGATED ACTS: the Commission is empowered to adopt delegated in respect of:

the identification of family members, sisters or brothers or relatives of an unaccompanied minor; the criteria establishing the existence of family ties; the criteria for evaluating the capacity of a relative to look after an unaccompanied minor, including in situations where family members, brothers or sisters or relatives of the unaccompanied minor reside in several Member States; aspects permitting the evaluation of a relationship of dependency and criteria for evaluating if a person is capable of taking charge of a minor or aspects to be taken into account to assess the inability to travel for a significant period of time.

In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child

The power to adopt delegated acts will be conferred on the Commission for a period of five years from the date of entry into force of the Regulation .

A delegated act shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of four months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

ENTRY INTO FORCE: the Regulation enters into force on 19 July 2013. It applies to all applications for international protection introduced as of the first day of the sixth month following its entry into force and shall apply from that date.

Regulation (EC) No 343/2003 is repealed, subject to the application of transitional measures in certain cases.

The European Parliament approved the Council position at first reading with a view to the adoption of 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).

Parliament notes that the act is adopted in accordance with the Council position.

In its communication on the position of the Council on the adoption of a 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, the Commission indicates it full support for the compromise text arising from the negotiations of the two co-legislators because it adds value to the current standards of treatment of applicants found under a Dublin procedure. It guarantees their right to information and access to effective remedy against transfer decisions and it introduces clear rules on detention and access to free legal assistance, issues which the current instrument does not address. It provides a more predictable environment for the relations between Member States and more favourable conditions for reuniting vulnerable persons, in particular unaccompanied minors, with their family or relatives.

Analysis of the main differences between the common position and the Commission’s 2011 modified proposal:

Enhancing the system's efficiency: the common position limits the possibility to make a request on humanitarian grounds to the period previous to the first decision in substance . The Commission understands this change as preventing abuse in the form of a repeated application in case the first decision on substance is negative. The deadlines for submitting requests, replying to requests and carrying out transfers have been reduced in case of people detained under the specific ground of the Dublin procedure.

Enhancing the protection of applicants under the Dublin procedure

- suspension of transfers/early warning system: the common position does not endorse the introduction of a mechanism in the Dublin Regulation, initially proposed by the Commission, for fears it could result in a pull factor for irregular migration, an encouragement for Member States not to respect their obligations under EU law. The common position replaced the provisions on suspension of transfers with the set-up of an early warning, preparedness and crisis management system. This system focuses on detecting and addressing the root causes of problems that might develop into asylum crises. It also reinforces language on solidarity and protection of fundamental rights. Moreover, it ensures the same level of protection for the applicants as was intended under the Commission proposal for a suspension of transfers.

- effective remedy against transfer decision: no provisions exist in the current Dublin Regulation on effective remedy. The common position provides for the following option-based system:

- an automatic suspensive effect (where an appeal is lodged, the person is always granted the right to remain on the territory until the appeal is judged);

- an automatic suspensive effect for a limited period of time (the period should be sufficient to allow for a rigorous scrutiny of the request);

- suspensive effect on request (whereby the suspension of the transfer is not automatically applied to all applicants appealing a transfer decision, but only to those asking for it; the transfer is consequently suspended for the period of time during which the court or tribunal is expected to pronounce on the matter).

In addition, a new provision was introduced, foreseeing that an applicant cannot be transferred to a Member State where there is a risk of violation of fundamental rights.

- detention: no specific provisions currently exist on the detention of persons found under a Dublin procedure. The Commission proposal aimed at ensuring that detention of persons during the Dublin procedure is not arbitrary. During negotiations the approach was taken that, for reasons of legal coherence, it is better to have all the necessary provisions regarding the guarantees applicable to persons in detention and detention conditions together in only one asylum instrument – the Reception Conditions Directive. Only the Dublin specific ground and conditions need to be defined in the Dublin Regulation itself.

The common position reflects this point and foresees:

- reference to the Reception Conditions Directive, whose guarantees and detention conditions apply to persons detained during the Dublin procedure, along with the clarification that a person under Dublin procedure can only be detained for the Dublin-related ground;

- introduction of the principle that a person cannot be detained only for the reason that is subject to the Dublin procedure;

- introduction of clear time limits for each leg of the Dublin procedure, ensuring that a person cannot be detained in total for longer than 3 months (otherwise the entire Dublin procedure can last up to 11 months), or else the person is released.

- minors and dependants: the common position restricts the concept of family to the nuclear family, as agreed in the Qualification Directive, but introduces references to members of the extended family in the relevant articles. It accepts to include married minors in the definition of unaccompanied minors. It introduces a definition of the term "relative", referring to the uncle, aunt or grandparent of a minor. It foresees the obligation for Member States to be proactive and start looking for the family of an unaccompanied minor. It allows the reunification of a married unaccompanied minor with family and siblings, when he/she is not accompanied by the spouse.

As regards the criterion relative to dependants, it is moved outside the hierarchy of criteria, under the norm "shall normally".

As regards the situation of an unaccompanied minor with no family or relatives on EU territory, the common position foresees that the Member State responsible is that where the minor has lodged an application for international protection . A Declaration is attached to the draft Regulation, providing that the Commission will put forward a new proposal on this issue as soon as the Court of Justice of the European Union will have delivered its judgment in the preliminary case C-648/11. The European Parliament and the Council will then both exercise their legislative competences, taking into account the best interests of the child.

- Right to information and personal interview: the common position makes the personal interview compulsory subject to limited exceptions, and inserts the obligation to inform the applicant not only on the criteria, but also on its hierarchy, including the fact that the application may end up in being examined by a Member State that is not the one responsible under the hierarchy of criteria ( sovereignty clause ), as well as on the fact that the person may ask for the suspension of the transfer.

Delegated and implementing acts: the common position foresees an empowerment for the Commission to adopt delegated acts containing supplementary rules on the reunification of minors and dependents with family and relatives; a recital stresses that the Commission should carry out consultations with experts, including all relevant national authorities. The possibility to adopt supplementary rules on the costs of transfers was not retained as the Council considers that the rules of the basic act are sufficient in this respect.

As regards transfers, the common position foresees only the possibility to adopt uniform rules of implementation, but not supplementary rules.

The period granted to the Parliament and to the Council to possibly object to a delegated act adopted by the Commission has been set at four months, extendable at the European Parliament's or Council's initiative by another two.

As regards the power to adopt implementing acts, the common position foresees a limitation to its powers, providing that the Commission cannot adopt an act where the assisting Committee delivers no opinion on the draft proposal.

The Committee on Civil Liberties, Justice and Home Affairs adopted the recommendation for second reading contained in the report by Cecilia WIKSTRÖM (ADLE, SE) on the Council position at first reading with a view to the adoption of 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).

The committee recommends the European Parliament to approve, unamended, the Council position at first reading.

The Council adopted its position at first reading on the proposal for a recast of the 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.

The position at first reading is based on a compromise reached between Parliament and the Council. This compromise provides, in particular, for strengthened legal safeguards and rights for the applicants for international protection , while focusing in particular on the needs of vulnerable groups such as unaccompanied minors and dependent persons. At the same time, the compromise caters for reducing abuses of the system set up by the Dublin Regulation and for ensuring that disputes among Member States in its context are tackled more efficiently. The compromise also provides for addressing in a timely manner problems in the application of this Regulation owed to particular pressure on a Member State’s asylum system, or because of its malfunctioning, through the setting up of a mechanism for early warning, preparedness and crisis management.

The key aspects of the compromise may be summarised as follows:

A. A mechanism for early warning, preparedness and crisis management (Art. 33): this mechanism is a new element added during the negotiations, replacing the so-called “suspension mechanism” contained in the original recast proposal of the Dublin Regulation. It is designed to address effectively and in a timely manner situations where the application of the Dublin Regulation may be jeopardised (with direct effects on the applicants who are in the Member State concerned), due to a particular pressure on a Member State's asylum system, or problems arising in the functioning of the asylum system of a Member State. It aims at ensuring effective cooperation and developing mutual trust and solidarity among Member States by way of preventing or managing a crisis in the asylum system of one or more Member States.

B. Remedies (Arts. 27 & 3(2)): the compromise emphasises the right of the person concerned to an effective remedy against the transfer decision before a court or a tribunal. The Member State shall provide for a reasonable period of time within which the aforementioned remedy may be exercised in order to be effective. As regards the issue of the suspension of the implementation of the transfer decision until a decision on a remedy against it is taken, Member States shall at least ensure in their national legislation that an effective remedy can be exercised by suspending the transfer until a decision on the first suspension request is taken. The recast also delineates the framework within which the person concerned will have access to legal assistance, free of charge where appropriate, in order to exercise effectively his/her right to an effective remedy.

As a corollary to Art. 27 on remedies, a provision has been added to make provision for the determination of the Member State responsible for examining the application, where the transfer of the person concerned is impossible due to a real risk of violation of fundamental rights . In this case, the Member State which carries out the determination procedure shall become the Member State responsible.

C. Detention (Art. 28): the compromise text provides for a comprehensive framework whereby the conditions under which a person concerned may be detained on the basis of “Dublin grounds”. These conditions are when there is a significant risk of the absconding of the person concerned, and an individual assessment of each case is made before a decision is taken on whether to impose detention. The compromise also deals with the time limits of the detention period, stating that it shall be for as short a period as possible.

As regards the detention per se , the most important consequence is the obligation of the Member State which detains him/her (and which did not meet its deadlines) to release the detainee , while it is clarified that there is no shifting of the responsibility under the Dublin procedure.

D. Unaccompanied minors & the definition of relatives (Arts. 2(h) & 8): t he compromise text provides for the legal framework under which an unaccompanied minor (provision is also made for the married minors whose spouse are not legally present on the territory of a Member State) shall be united with family members, siblings, or relatives, along with the relevant conditions of each provision, with a view to rendering responsible for the examination of the application the Member State where the reunification will take place. The ultimate check on all cases provided for under this Article is that any reunification shall be in the best interest of the minor .

The best-interest-of -the-minor requirement also applies in the absence of any of the above family relations , in which case the Member State responsible is the one where the unaccompanied minor lodged his/her application. In the context of this occasion, the European Parliament, the Council and the Commission have submitted a statement, inviting the latter to consider a possible revision of Art. 8(4).

The compromise also meets the concerns of the Council for fighting abuse in the context of the asylum procedures. In this context, the compromise text provides for the scope of the term "relative" as the applicant's adult aunt or uncle or grandparent, who is present in the territory of a Member State.

E. Dependent persons (Art. 16): the compromise on this provision deals with cases where the applicant, due to certain grounds of vulnerability, is dependent on the assistance of his/her child, sibling or parent legally resident in one of the Member States, or with cases where these persons depend on the applicant’s assistance on the same grounds. The compromise provides for the legal framework on the basis of which Member States shall normally keep or bring together the applicant with the above persons, provided that certain conditions are met.

The following issues dealt with in the compromise text are also worth noting:

- definition of unaccompanied minor (Art. 2(j)): the text provides that the unaccompanied minor may be married or unmarried;

- right to information (Arts 4 & 5): t he text provides for the right of the applicant to receive, in writing (or orally, where appropriate) and in a language that the applicant understands detailed information regarding the contents of the Dublin Regulation upon the lodging of his/ her application. A common leaflet (and a special one on unaccompanied minors) containing at least the information to which the applicant is entitled, shall be drawn up;

- personal interview (Art. 5): the compromise provides for an obligation to hold a personal interview with the applicant, in a timely and appropriate manner, with a view to facilitating the process of determining the Member State responsible. However, a Member State which omits the interview shall give the applicant the opportunity to present all further, relevant information, before a decision is taken on the transfer of the applicant;

- guarantees for minors (Art. 6): the text regarding the guarantees for minors should be considered in the context of the best-interest-of-the-child principle. It requires Member States' to ensure proper representation of the minor, as well as to take, as soon as possible, appropriate action to identify family members, siblings or relatives of an unaccompanied minor on the territory of another Member State;

- discretionary clauses (Art. 17): the text provides for a derogation from the criteria for establishing the Member State responsible. The scope of the provision has been extended more explicitly by the deletion of the reference to "humanitarian and compassionate grounds" , as a basis for the derogation has been deleted, as well as the provision for a prior consent from the applicant in order to use this Article;

- obligations of the Member State responsible (Chapters V & VI in general): within the context of these Chapters, which regulate the obligations of the Member State responsible, the text provides for legally and procedurally enhanced requirements aiming at safeguarding all the relevant rights of the applicant, as well as making the practical cooperation among the Member States concerned more efficient.

Implementing and delegating acts: lastly, the text provides for implementing powers (using the examination procedure) for the purpose of certain provisions where this kind of empowerment to the Commission was deemed sufficient. The option of delegated acts is provided for in the context of Art. 8 (reunification of the unaccompanied minor with family members, siblings or relatives) in particular regarding the assessment of whether the relevant criteria were met and Art. 16 (reunification of dependent applicants with children, parents or siblings, or vice versa) also in particular regarding the assessment of whether the relevant criteria were met.

The Council adopted its position at first reading on the proposal for a recast of the 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.

The position at first reading is based on a compromise reached between Parliament and the Council. This compromise provides, in particular, for strengthened legal safeguards and rights for the applicants for international protection , while focusing in particular on the needs of vulnerable groups such as unaccompanied minors and dependent persons. At the same time, the compromise caters for reducing abuses of the system set up by the Dublin Regulation and for ensuring that disputes among Member States in its context are tackled more efficiently. The compromise also provides for addressing in a timely manner problems in the application of this Regulation owed to particular pressure on a Member State’s asylum system, or because of its malfunctioning, through the setting up of a mechanism for early warning, preparedness and crisis management.

The key aspects of the compromise may be summarised as follows:

A. A mechanism for early warning, preparedness and crisis management (Art. 33): this mechanism is a new element added during the negotiations, replacing the so-called “suspension mechanism” contained in the original recast proposal of the Dublin Regulation. It is designed to address effectively and in a timely manner situations where the application of the Dublin Regulation may be jeopardised (with direct effects on the applicants who are in the Member State concerned), due to a particular pressure on a Member State's asylum system, or problems arising in the functioning of the asylum system of a Member State. It aims at ensuring effective cooperation and developing mutual trust and solidarity among Member States by way of preventing or managing a crisis in the asylum system of one or more Member States.

B. Remedies (Arts. 27 & 3(2)): the compromise emphasises the right of the person concerned to an effective remedy against the transfer decision before a court or a tribunal. The Member State shall provide for a reasonable period of time within which the aforementioned remedy may be exercised in order to be effective. As regards the issue of the suspension of the implementation of the transfer decision until a decision on a remedy against it is taken, Member States shall at least ensure in their national legislation that an effective remedy can be exercised by suspending the transfer until a decision on the first suspension request is taken. The recast also delineates the framework within which the person concerned will have access to legal assistance, free of charge where appropriate, in order to exercise effectively his/her right to an effective remedy.

As a corollary to Art. 27 on remedies, a provision has been added to make provision for the determination of the Member State responsible for examining the application, where the transfer of the person concerned is impossible due to a real risk of violation of fundamental rights . In this case, the Member State which carries out the determination procedure shall become the Member State responsible.

C. Detention (Art. 28): the compromise text provides for a comprehensive framework whereby the conditions under which a person concerned may be detained on the basis of “Dublin grounds”. These conditions are when there is a significant risk of the absconding of the person concerned, and an individual assessment of each case is made before a decision is taken on whether to impose detention. The compromise also deals with the time limits of the detention period, stating that it shall be for as short a period as possible.

As regards the detention per se , the most important consequence is the obligation of the Member State which detains him/her (and which did not meet its deadlines) to release the detainee , while it is clarified that there is no shifting of the responsibility under the Dublin procedure.

D. Unaccompanied minors & the definition of relatives (Arts. 2(h) & 8): t he compromise text provides for the legal framework under which an unaccompanied minor (provision is also made for the married minors whose spouse are not legally present on the territory of a Member State) shall be united with family members, siblings, or relatives, along with the relevant conditions of each provision, with a view to rendering responsible for the examination of the application the Member State where the reunification will take place. The ultimate check on all cases provided for under this Article is that any reunification shall be in the best interest of the minor .

The best-interest-of -the-minor requirement also applies in the absence of any of the above family relations , in which case the Member State responsible is the one where the unaccompanied minor lodged his/her application. In the context of this occasion, the European Parliament, the Council and the Commission have submitted a statement, inviting the latter to consider a possible revision of Art. 8(4).

The compromise also meets the concerns of the Council for fighting abuse in the context of the asylum procedures. In this context, the compromise text provides for the scope of the term "relative" as the applicant's adult aunt or uncle or grandparent, who is present in the territory of a Member State.

E. Dependent persons (Art. 16): the compromise on this provision deals with cases where the applicant, due to certain grounds of vulnerability, is dependent on the assistance of his/her child, sibling or parent legally resident in one of the Member States, or with cases where these persons depend on the applicant’s assistance on the same grounds. The compromise provides for the legal framework on the basis of which Member States shall normally keep or bring together the applicant with the above persons, provided that certain conditions are met.

The following issues dealt with in the compromise text are also worth noting:

- definition of unaccompanied minor (Art. 2(j)): the text provides that the unaccompanied minor may be married or unmarried;

- right to information (Arts 4 & 5): t he text provides for the right of the applicant to receive, in writing (or orally, where appropriate) and in a language that the applicant understands detailed information regarding the contents of the Dublin Regulation upon the lodging of his/ her application. A common leaflet (and a special one on unaccompanied minors) containing at least the information to which the applicant is entitled, shall be drawn up;

- personal interview (Art. 5): the compromise provides for an obligation to hold a personal interview with the applicant, in a timely and appropriate manner, with a view to facilitating the process of determining the Member State responsible. However, a Member State which omits the interview shall give the applicant the opportunity to present all further, relevant information, before a decision is taken on the transfer of the applicant;

- guarantees for minors (Art. 6): the text regarding the guarantees for minors should be considered in the context of the best-interest-of-the-child principle. It requires Member States' to ensure proper representation of the minor, as well as to take, as soon as possible, appropriate action to identify family members, siblings or relatives of an unaccompanied minor on the territory of another Member State;

- discretionary clauses (Art. 17): the text provides for a derogation from the criteria for establishing the Member State responsible. The scope of the provision has been extended more explicitly by the deletion of the reference to "humanitarian and compassionate grounds" , as a basis for the derogation has been deleted, as well as the provision for a prior consent from the applicant in order to use this Article;

- obligations of the Member State responsible (Chapters V & VI in general): within the context of these Chapters, which regulate the obligations of the Member State responsible, the text provides for legally and procedurally enhanced requirements aiming at safeguarding all the relevant rights of the applicant, as well as making the practical cooperation among the Member States concerned more efficient.

Implementing and delegating acts: lastly, the text provides for implementing powers (using the examination procedure) for the purpose of certain provisions where this kind of empowerment to the Commission was deemed sufficient. The option of delegated acts is provided for in the context of Art. 8 (reunification of the unaccompanied minor with family members, siblings or relatives) in particular regarding the assessment of whether the relevant criteria were met and Art. 16 (reunification of dependent applicants with children, parents or siblings, or vice versa) also in particular regarding the assessment of whether the relevant criteria were met.

The Council was informed in a public session about the state-of-play of negotiations on the various outstanding legislative proposals concerning the Common European Asylum System (CEAS), on the basis of a paper prepared by the Cypriot Presidency.

One of these proposals relates to the recast of the Dublin Regulation . Negotiations between the Council and the European Parliament on the substance of the Dublin regulation have been finalised . The only outstanding issue is related to the comitology procedure, i.e. whether to use delegated or implementing acts .

It should be noted that, at its meeting of 19 September, Parliament’s Committee on Civil Liberties, Justice and Internal Affairs (LIBE) came out in favour of this overall compromise . On 10 October 2012, the Permanent Representatives Committee (COREPER) agreed on a mandate to start negotiations with representatives of the European Parliament on the remaining provisions related to delegated acts and implementing acts.

On the basis of this mandate, the Presidency will engage in trilogues with the European Parliament with a view to reaching an agreement on the entire recast of the Dublin Regulation by the end of the year. The first technical meeting on this issue with the European Parliament was held on 12 October 2012.

The Council took note, on the basis of a presidency paper (doc. 8595/12 ) , of the state-of-play of negotiations on the various outstanding legislative proposals concerning the Common European Asylum System (CEAS).

In keeping with the commitment to strengthen the CEAS by the end of 2012, the Council instructed its preparatory bodies to continue work on the various proposals.

The situation on the four outstanding files can be described as follows:

· Reception Conditions Directive : negotiations between the Council and the European Parliament are expected to start soon. A revised proposal was tabled by the Commission on 1 June 2011.

· Asylum Procedures Directive : progress has been made, in particular regarding access to the procedure, applicants with special procedural needs and the applicability of accelerated procedures. Discussions in the Council preparatory bodies are continuing on other key elements such as guarantees for unaccompanied minors, subsequent applications and the right to an effective remedy. A revised proposal for the directive was tabled by the Commission on 1 June 2011.

· Eurodac Regulation : discussions are on hold pending a revised Commission proposal. Member States have requested additional provisions that would allow law enforcement authorities to access this central EU-wide fingerprint database, subject to strict conditions on data protection, for the purposes of fighting terrorism and organised crime.

· Dublin Regulation (procedures for determining the Member State responsible for examining an application for international protection): negotiations between the Council and the European Parliament are expected to start soon. The Council has introduced a mechanism for early warning, preparedness and crisis management . This mechanism is aimed at evaluating the practical functioning of national asylum systems, assisting Member States in need and preventing asylum crises. It will concentrate on enabling the adoption of measures to prevent asylum crises from developing rather than addressing the consequences of such crises once they had occurred.

Furthermore, in March 2012 the Council adopted conclusions on a common framework for genuine and practical solidarity with Member States facing particular pressures on their asylum systems, including through mixed migration flows. These conclusions are intended to constitute a toolbox for EU-wide solidarity with those Member States most affected by such pressures and/or encountering problems in their asylum systems. They aim to complement the implementation of the mechanism envisaged for early warning, preparedness and crisis management in the amended Dublin Regulation.

It should be noted that four other agreements and decisions related to the CEAS have already been adopted. They concern:

· the Qualification Directive providing for better, clearer and more harmonised standards for identifying persons in need of international protection which was adopted in November 2011 and entered into force in January 2012;

· the Long Term Residence Directive adopted in April 2011;

· the creation of the European Asylum Support Office (EASO) which started operations in spring 2011;

· the decision taken in March 2012 establishing common EU resettlement priorities for 2013 as well as new rules on EU funding for resettlement activities carried out by Member States.

As regards the overall context, it should be remembered that the European Council confirmed in its conclusions in June 2011 that negotiations on the various elements of the CEAS should be concluded by 2012.

The Council looked, on the basis of a presidency paper , at the state-of-play of negotiations on the various legislative proposals concerning the Common European Asylum System (CEAS).

Ministers instructed the Council preparatory bodies to continue their work to reach an agreement at Council level and with the European Parliament as soon as possible.

The situation on the various files can be described as follows:

The qualification directive providing for better, clearer and more harmonised standards for identifying persons in need of international protection was adopted in November 2011 and entered into force in January 2012. The asylum procedures and reception conditions directives : revised proposals were tabled by the Commission on 1 June 2011. Significant progress has been made on the two instruments, in particular on the reception conditions directives where negotiations with the European Parliament are expected to start soon. The main outstanding issues here concern the grounds for detention and access to labour market for asylum applicants . The Dublin II regulation (current proposal being examined) establishes the procedures for determining the member state responsible for examining an application for international protection. Further progress has been made on almost all aspects, in particular concerning a proposal to introduce a mechanism for early warning, preparedness and crisis management. The Eurodac regulation : discussions on amendments to the rules regulating this fingerprint database are on hold pending a revised Commission proposal. Member states have requested additional provisions which would allow their law enforcement authorities to access the Eurodac central database under strict conditions on data protection for the purposes of fighting terrorism and organised crime.

Two other agreements related to the CEAS have been achieved so far. They concern the long term residence directive and the creation of the European Asylum Support Office (EASO) which started operations in spring 2011.

In addition, the Council took a decision without discussion which establishes common EU resettlement priorities for 2013 as well as new rules on EU funding for resettlement activities carried out by member states.

The Council discussed the state of play of negotiations on the asylum package on the basis of two presidency papers taking into account the commitment to set up the CEAS by 2012.

Particular attention was given to possible ways to move forward in negotiations on the Dublin regulation based on the concept of an early warning and preparedness process, in the form of an 'asylum evaluation mechanism' . Such an evaluation mechanism could be used as a tool for the prevention of asylum crises and could be set up in parallel to the 'emergency mechanism' so far included in the Commission proposal and rejected by a majority of Member States.

The evaluation mechanism would pursue two objectives:

to contribute to the development of mutual trust among Member States with respect to asylum policy; to function as a mechanism for early warning and preparedness for crises, thus facilitating decisions on the application of emergency measures in such situations.

The 'emergency mechanism' , strongly advocated by the Commission, would allow for the temporary suspension of transfers of asylum seekers to a particular Member State which found itself in a situation of strong and disproportionate pressure on its asylum system.

The discussion showed that the new idea for an evaluation mechanism was generally welcomed . A majority of Member States continued to refuse the idea of an emergency mechanism , however, even if accompanied by an asylum evaluation mechanism.

Ministers continued work on the establishment of a Common European Asylum System (CEAS) on the basis of a discussion paper which presents the state of play in relation to the discussions regarding a package of six legislative proposals which EU Member States have committed to adopt by 2012.

It relates to the following proposals:

the proposal for the extension of the Long-Term Residents Directive to beneficiaries of international protection ; the recast of the ‘Qualification’ Directive ; the recast of the EURODAC Regulation ; this proposal for the recast of the ‘Dublin’ Regulation; the establishment of a European Asylum Support Office (EASO) ; the amendment of Decision No 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 by removing funding for certain Community actions and altering the limit for funding such actions (already adopted).

As regards this proposal for the recast of the Dublin Regulation, the discussion paper recalls that on the basis of valuable efforts by previous Presidencies, technical discussions in Council preparatory bodies have reached their final stage now. During several meetings in the Asylum Working Party and in SCIFA (Strategic Committee on Immigration, Frontiers and Asylum), the Presidency found broad support for the proposed approach on a number of issues, such as

the definition of ‘family members’, the concept of relatives, the issue of detention in relation with the Dublin procedure and the suspensive character of appeals against transfer decisions.

Also, on a number of occasions, ministers voiced serious concerns regarding proposed suspension mechanisms for Dublin transfers in case of particular pressure on the asylum system of a Member State.

Some Member States emphasised the need for the principle of solidarity to be adequately reflected in the development of the next phase of the CEAS, including in the context of discussions on the revision of the Dublin II mechanism (the current text of the Dublin II regulation states that the member states through which an asylum seeker first entered the territory of the EU are responsible for dealing with that person's request for asylum).

In the course of the coming weeks, the Council position will be further clarified, taking account of the outcomes of abovementioned discussions, with a view to starting first informal contacts with the European Parliament before the end of the year.

Ministers discussed the state-of-play regarding the establishment of a Common European Asylum System (CEAS). The CEAS includes a package of six legislative proposals which EU member states have undertaken to adopt by 2012.

The basis for the discussion was a presidency report that gave an overview of the debate after an informal meeting of the Justice and Home Affairs Ministers on 15 and 16 July and a ministerial conference on 13 and 14 September 2010 in Brussels.

Member states highlighted a number of issues of particular concern to them including the need to combine a high level of protection with efficient and effective asylum systems, solidarity and changes to the Dublin II system. The current text of the Dublin II regulation states that the member states through which an asylum seeker first entered the territory of the EU are responsible for dealing with that person's request for asylum.

Malta , Greece and Cyprus, for example, repeated their call for solidarity and support from the European Commission and other member states to help them cope with the large number of asylum requests with which they are confronted. The Dublin II regulation should, in their opinion, be reformed.

Other member states, including Germany and Austria, maintained that the proper functioning of the Dublin II regulation was at the heart of any possible future Common European Asylum System. These countries and others, like the UK, also stressed the importance for more cooperation with third countries on issues such as readmission agreements and border controls. They also stressed that they were ready to provide practical support and cooperation in order to help those member states struggling with a greater burden to implement existing legislation . The European Asylum Support Office (EASO), which is expected to be operational early in 2011, is expected to play an important role in this respect.

In the context of this debate, the Commission also informed the Council of its recent missions to Greece where it discussed with Greek political leaders the reform of their asylum system. Greece has recently adopted a national action plan on asylum reform and migration management in response to significant increases in the number of illegal immigrants and asylum seekers. Member states confirmed their readiness to assist in the implementation of the plan.

In public deliberation, the Council held a policy debate on the state of negotiations regarding five legislative acts concerning asylum. The Council welcomed the progress already made and instructed its preparatory bodies to continue the examining the proposals taking account of the European Parliament’s opinion , delivered on 7 May, as well as the views expressed by delegations in the discussion.

The five proposals involve amendments to the so called " Dublin " regulation, the EURODAC regulation, and the reception conditions directive as well as a proposal for the establishment of a European asylum support office and a related amendment of the European refugee fund.

These measures stem from the commitments undertaken in the European Pact on Immigration and Asylum adopted by the European Council in October 2008, with the purpose to complete the Common European Asylum System provided for in the Hague Programme.

Over the last few months, the Council preparatory bodies have carried out intensive discussions on the five proposals. A first reading of the text has been completed in all cases.

On 7 May, the European Parliament adopted legislative resolutions setting out amendments to the Commission proposals under the Council-Parliament codecision procedure. Examination of these amendments is now underway.

The European Parliament adopted by, by 398 votes in favour to 56 against with 65 abstentions, a legislative resolution amending, under the first reading of codecision procedure, 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).

The main amendments are as follows:

Definitions: Members made some amendments to the definition of “unaccompanied minor.”

Guarantees for minors : Parliament inserted a new provision stating that within the framework of the application of this Regulation and under the conditions laid down in Article 17 of Directive 2005/85/EC, Member States may use medical examinations to determine the age of unaccompanied minors. In cases where medical examinations are used, Member States shall ensure that they are conducted in a reasonable and thorough manner, as required by scientific and ethical standards.

Hierarchy of criteria : Parliament deleted the derogation in the proposal, stating that this would make the determination of responsibility too complicated and encourage abuse.

Submitting a take back request : once there is a hit in the EURODAC system there is no need for a long delay in filling the request to take back the person concerned. Members reduced the deadline from 2 months to 1 month.

Remedies: Member States shall provide for a reasonable period of time within which the person concerned may exercise his/her right to an effective judicial remedy. That period of time shall be not less than 10 working days as from the date of notification of a transfer decision.

Mode of carrying out transfers : a new clause states that the Member State carrying out the transfer shall promote voluntary transfers by providing adequate information to the applicant. If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.

Temporary suspension of transfers : Parliament stipulated that the decision to suspend transfers shall include indicia of measures, benchmarks and timetables to be established in order to assess progress toward resolution of the circumstances requiring a suspension. A Member State shall take effective and timely steps to remedy the situation that led to the temporary suspension of transfers.

The committee also added a clause stating that on a proposal by the Commission, and acting in accordance with the codecision procedure, instruments shall be enacted, binding on all Member States, in order to provide effective support to those Member States which are faced with specific and disproportionate pressures on their national systems due, in particular, to their geographical or demographic situation. Those instruments shall enter into force no later than 31 December 2011 and in any event make provision for the following: a) the secondment of officials from other Member States, under the aegis of the European Asylum Support Office, who assist those Member States which are faced with specific pressures and where the applicants cannot benefit from adequate standards of protection; (b) a scheme to reallocate beneficiaries of international protection from Member States which are faced with specific and disproportionate pressures to others, in consultation with the Office of the United Nations High Commissioner for Refugees, while ensuring that the reallocation follows non-discretionary, transparent and unequivocal rules.

The article on temporary suspension of transfers shall cease to apply as soon as the instruments referred to above have entered into force, and in any event on 31 December 2011 at the latest.

A further new clause in the text states that as part of the monitoring and evaluation , the Commission shall review the application of the article on temporary suspensions and report to the European Parliament and the Council no later than 30 June 2011. In its report, the Commission shall assess whether there is a justified need to extend the application of this Article beyond 31 December 2011. If the Commission considers it appropriate, it shall submit a proposal for such an extension to the European Parliament and the Council in accordance with the codecision procedure.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report drawn up by Jeanine HENNIS-PLASSCHAERT (ALDE, NL)) amending, under the first reading of codecision procedure, 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).

The main amendments are as follows:

Definitions: Members made some amendments to the definition of “family members” and “unaccompanied minor”.

Guarantees for minors : the committee inserted a new provision stating that within the framework of the application of this Regulation and under the conditions laid down in Article 17 of Directive 2005/85/EC, Member States may use medical examinations to determine the age of unaccompanied minors. In cases where medical examinations are used, Member States shall ensure that they are conducted in a reasonable and thorough manner, as required by scientific and ethical standards.

Hierarchy of criteria : the committee deleted the derogation in the proposal, stating that this would make the determination of responsibility too complicated and encourage abuse.

Submitting a take back request : once there is a hit in the EURODAC system there is no need for a long delay in filling the request to take back the person concerned. The committee reduced the deadline from 2 months to 1 month.

Remedies: Member States shall provide for a reasonable period of time within which the person concerned may exercise his/her right to an effective judicial remedy. That period of time shall be not less than 10 working days as from the date of notification of a transfer decision.

Mode of carrying out transfers : a new clause states that the Member State carrying out the transfer shall promote voluntary transfers by providing adequate information to the applicant. If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.

Temporary suspension of transfers : the report stipulated that the decision to suspend transfers shall include indicia of measures, benchmarks and timetables to be established in order to assess progress toward resolution of the circumstances requiring a suspension. A Member State shall take effective and timely steps to remedy the situation that led to the temporary suspension of transfers.

The committee also added a clause stating that on a proposal by the Commission, and acting in accordance with the codecision procedure, instruments shall be enacted, binding on all Member States, in order to provide effective support to those Member States which are faced with specific and disproportionate pressures on their national systems due, in particular, to their geographical or demographic situation. Those instruments shall enter into force no later than 31 December 2011 and in any event make provision for the following: a) the secondment of officials from other Member States, under the aegis of the European Asylum Support Office, who assist those Member States which are faced with specific pressures and where the applicants cannot benefit from adequate standards of protection; (b) a scheme to reallocate beneficiaries of international protection from Member States which are faced with specific and disproportionate pressures to others, in consultation with the Office of the United Nations High Commissioner for Refugees, while ensuring that the reallocation follows non-discretionary, transparent and unequivocal rules.

The article on temporary suspension of transfers shall cease to apply as soon as the instruments referred to above have entered into force, and in any event on 31 December 2011 at the latest.

Members note that experience has shown that the existing forms of practical cooperation among Member States in order to align their interpretation of the principle of 'solidarity and fair sharing of responsibility' are not in any way sufficient to address the problems that a number of Member States are facing. It is essential to look at the heavy burden posed on the resources of a number of Member States from a wider perspective of general migratory pressures. Binding responsibility-sharing instruments seem to be the only way forward. At the same time the Commission should make full use of its possibilities to start up infringements procedures in cases where non-compliance with community law persists.

A further new clause in the text states that as part of the monitoring and evaluation, the Commission shall review the application of the article on temporary suspensions and report to the European Parliament and the Council no later than 30 June 2011. In its report, the Commission shall assess whether there is a justified need to extend the application of this Article beyond 31 December 2011. If the Commission considers it appropriate, it shall submit a proposal for such an extension to the European Parliament and the Council in accordance with the codecision procedure.

OPINION OF THE EUROPEAN DATA PROTECTION SUPERVISOR on 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 of the “Dublin Regulation”).

The proposal to recast the Dublin Regulation was sent by the Commission to the EDPS for consultation on 3 December 2008. This consultation should be explicitly mentioned in the preamble of the Regulation.

To recall, the EDPS contributed to the proposal at an earlier stage, and many of the points he raised informally during the preparatory process have been taken into account by the Commission in its final text of the Proposal.

The main conclusions may be summarised as follows:

the EDPS supports the Commission's Proposal and shares the understanding of the reasons to revise the existing system; he welcomes the consistency of the Commission's Proposal with other legal instruments regulating the complex legal framework of this area; he welcomes considerable attention devoted in the Proposal to the respect of fundamental rights, in particular the protection of personal data. He considers this approach as an essential prerequisite to the improvement of the Dublin procedure.

Exchange of personal data : the EDPS draws particular attention of the legislators to the new mechanisms of exchange of data , which will involve, amongst others, the extremely sensitive personal data of the asylum seekers. The EDPS also wishes to refer to the important work undertaken in this area by the Eurodac Supervision Coordination Group and believes that the results of the Group's work can usefully contribute to a better formulation of the features of the system.

The EDPS notes that relatively little has been regulated in the framework of the Dublin system as regards the exchange of personal information. Although certain aspects of the exchange have already been addressed in the Dublin Implementing Regulation, the current regulation does not seem to cover all aspects of the exchange of personal information, which is regrettable.

DubliNet : the EDPS considers that some of the observations made in this opinion can be further developed when seeing the practical implementation of the revised system. In particular, he intends to contribute to the definition of implementing measures concerning the exchange of information through the DubliNet.

The EDPS stresses that it is important that the Member States authorities exchange information about individuals using the DubliNet network. This allows not only to provide for better security but also to ensure better traceability of the transactions. He insists that the possibility to derogate from the use of DubliNet should be interpreted restrictively .

PURPOSE: to recast Regulation 343/2003/EC (“the Dublin Regulation”) 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.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND : the Commission's Evaluation Report of the Dublin system (please see the supplementary document under procedure CNS/2001/0182 dated 06/06/2007) has identified a number of deficiencies related mainly to the efficiency of the system put in place by the current legislative provisions and the level of protection afforded to applicants for international protection, which are subject to the Dublin procedure. The Commission therefore wishes to amend the Dublin Regulation in order, on the one hand, to enhance the system's efficiency and, on the other, to ensure that the needs of applicants for international protection are comprehensively addressed under the responsibility determination procedure. This proposal is part of a first package of proposals which aim to ensure a higher degree of harmonisation and better standards of protection for the Common European Asylum System (“CEAS”)

CONTENT: the main aim of the proposal is to increase the system's efficiency and to ensure higher standards of protection for persons falling under the "Dublin procedure". At the same time, the proposal aims to contribute to better addressing situations of particular pressure on Member States' reception facilities and asylum systems. The main points are as follows:

Scope of the Regulation : the proposal extends the scope of the application of the Regulation in order to include applicants for (and beneficiaries of) subsidiary protection.

Efficiency of the system : several modifications are proposed, in particular:

deadlines for submitting take back requests are established and the deadline for replying to requests for information is reduced. A deadline for replying to requests on humanitarian grounds is introduced and it is clarified that requests on humanitarian grounds can be made at any time; the cessation of responsibility clauses have been clarified as regards the circumstances under which the cessation clauses should apply, the Member State which bears the burden of proof and the consequences of the cessation of responsibility. These clarifications aim to diminish divergences of interpretation by Member States; the circumstances and procedures for applying the discretionary clauses (humanitarian and sovereignty) have been clarified; rules on transfers have been added, i.e. on erroneous transfers and costs for transfers. A new provision on the sharing of relevant information before transfers are carried out is added to facilitate cooperation between Member States on practical arrangements for transfers; the existing dispute settlement mechanism, provided currently by the Dublin Implementing Regulation only for divergences between Member States in the application of the humanitarian clause, has been extended in order to cover matters of dispute on the application of the entire Regulation; a provision on the organisation of a compulsory interview is inserted.

Legal safeguards : the proposal introduces a number of modifications:

the content, form and the timing for providing information to applicants for international protection are specified in greater detail in the Regulation. Moreover, the proposal envisages the adoption of a common information leaflet to be used across the Member States; the right to appeal against a transfer decision, together with the obligation for the competent authorities to decide whether or not its enforcement should be suspended and to allow the person concerned to remain on the territory pending such a decision, are laid down. Moreover, the right to legal assistance, and to linguistic assistance, is clarified and the notification process is further clarified in order to ensure a more effective right to seek a remedy; a new provision recalling the underlying principle that a person should not be held in detention for the sole reason that he/she is seeking international protection is included. Moreover, in order to ensure that detention of asylum-seekers under the Dublin procedure is not arbitrary, limited specific grounds for such detention are proposed. Specific rules are laid down for the special situation of minors and that of unaccompanied minors.

Family unity: it is proposed to:

extend the right to family reunification to include family members who are beneficiaries of subsidiary protection and who reside in another Member State ; make compulsory the reunification of dependent relatives (i.e. either a relative which is dependant on an applicant or an applicant which is dependant on a relative) and of unaccompanied minors with relatives who can take care of them; extend the definition of "family members" as far as minors are concerned, in order to ensure better protection of the "best interests of the child"; exclude the possibility of sending back an applicant for whom one of the family unity criteria can be applied at the time of the most recent application, on condition that the Member State where the first application was lodged has not already taken a first decision regarding the substance.

Unaccompanied minors and other vulnerable groups : a new provision dealing with guarantees for minors is added, and the protection afforded to unaccompanied minors is enlarged to allow for reunification not only with the nuclear family but also with other relatives present in another Member State who can take care of them. In the absence of a family member or another relative, the Member State responsible is the one where the applicant lodged his/her most recent application, provided this is in his/her best interests.

Particular pressure or inadequate level of protection: where there is particular pressure on certain Member States with limited reception and absorption capacities, Dublin transfers add to the burden on those Member States. A new procedure is inserted allowing for the suspension of Dublin transfers towards the responsible Member State. Such a procedure can also be used in cases where there are concerns that Dublin transfers could result in applicants not benefiting from adequate standards of protection in the responsible Member State, in particular in terms of reception conditions and access to the asylum procedure.

PURPOSE: to recast Regulation 343/2003/EC (“the Dublin Regulation”) 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.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND : the Commission's Evaluation Report of the Dublin system (please see the supplementary document under procedure CNS/2001/0182 dated 06/06/2007) has identified a number of deficiencies related mainly to the efficiency of the system put in place by the current legislative provisions and the level of protection afforded to applicants for international protection, which are subject to the Dublin procedure. The Commission therefore wishes to amend the Dublin Regulation in order, on the one hand, to enhance the system's efficiency and, on the other, to ensure that the needs of applicants for international protection are comprehensively addressed under the responsibility determination procedure. This proposal is part of a first package of proposals which aim to ensure a higher degree of harmonisation and better standards of protection for the Common European Asylum System (“CEAS”)

CONTENT: the main aim of the proposal is to increase the system's efficiency and to ensure higher standards of protection for persons falling under the "Dublin procedure". At the same time, the proposal aims to contribute to better addressing situations of particular pressure on Member States' reception facilities and asylum systems. The main points are as follows:

Scope of the Regulation : the proposal extends the scope of the application of the Regulation in order to include applicants for (and beneficiaries of) subsidiary protection.

Efficiency of the system : several modifications are proposed, in particular:

deadlines for submitting take back requests are established and the deadline for replying to requests for information is reduced. A deadline for replying to requests on humanitarian grounds is introduced and it is clarified that requests on humanitarian grounds can be made at any time; the cessation of responsibility clauses have been clarified as regards the circumstances under which the cessation clauses should apply, the Member State which bears the burden of proof and the consequences of the cessation of responsibility. These clarifications aim to diminish divergences of interpretation by Member States; the circumstances and procedures for applying the discretionary clauses (humanitarian and sovereignty) have been clarified; rules on transfers have been added, i.e. on erroneous transfers and costs for transfers. A new provision on the sharing of relevant information before transfers are carried out is added to facilitate cooperation between Member States on practical arrangements for transfers; the existing dispute settlement mechanism, provided currently by the Dublin Implementing Regulation only for divergences between Member States in the application of the humanitarian clause, has been extended in order to cover matters of dispute on the application of the entire Regulation; a provision on the organisation of a compulsory interview is inserted.

Legal safeguards : the proposal introduces a number of modifications:

the content, form and the timing for providing information to applicants for international protection are specified in greater detail in the Regulation. Moreover, the proposal envisages the adoption of a common information leaflet to be used across the Member States; the right to appeal against a transfer decision, together with the obligation for the competent authorities to decide whether or not its enforcement should be suspended and to allow the person concerned to remain on the territory pending such a decision, are laid down. Moreover, the right to legal assistance, and to linguistic assistance, is clarified and the notification process is further clarified in order to ensure a more effective right to seek a remedy; a new provision recalling the underlying principle that a person should not be held in detention for the sole reason that he/she is seeking international protection is included. Moreover, in order to ensure that detention of asylum-seekers under the Dublin procedure is not arbitrary, limited specific grounds for such detention are proposed. Specific rules are laid down for the special situation of minors and that of unaccompanied minors.

Family unity: it is proposed to:

extend the right to family reunification to include family members who are beneficiaries of subsidiary protection and who reside in another Member State ; make compulsory the reunification of dependent relatives (i.e. either a relative which is dependant on an applicant or an applicant which is dependant on a relative) and of unaccompanied minors with relatives who can take care of them; extend the definition of "family members" as far as minors are concerned, in order to ensure better protection of the "best interests of the child"; exclude the possibility of sending back an applicant for whom one of the family unity criteria can be applied at the time of the most recent application, on condition that the Member State where the first application was lodged has not already taken a first decision regarding the substance.

Unaccompanied minors and other vulnerable groups : a new provision dealing with guarantees for minors is added, and the protection afforded to unaccompanied minors is enlarged to allow for reunification not only with the nuclear family but also with other relatives present in another Member State who can take care of them. In the absence of a family member or another relative, the Member State responsible is the one where the applicant lodged his/her most recent application, provided this is in his/her best interests.

Particular pressure or inadequate level of protection: where there is particular pressure on certain Member States with limited reception and absorption capacities, Dublin transfers add to the burden on those Member States. A new procedure is inserted allowing for the suspension of Dublin transfers towards the responsible Member State. Such a procedure can also be used in cases where there are concerns that Dublin transfers could result in applicants not benefiting from adequate standards of protection in the responsible Member State, in particular in terms of reception conditions and access to the asylum procedure.