1
The implementation of the
Dublin III Regulation in 2020
September 2021
2
Table of Contents
Introduction ........................................................................................................................................... 1
Key Dublin statistics for 2020 .............................................................................................................. 2
Fluctuations in Dublin procedures in 2020 .......................................................................................... 2
Asylum applications and Dublin procedures ....................................................................................... 3
Outgoing and incoming procedures .................................................................................................... 4
Transfers.............................................................................................................................................. 6
The responsibility criteria .................................................................................................................. 10
Family unity ....................................................................................................................................... 11
Suspension of transfers ..................................................................................................................... 13
The duty to investigate and obtain guarantees ................................................................................. 13
The human rights threshold ............................................................................................................... 14
1
Introduction
*
In September 2020, the European Commission launched its New Pact on Asylum and Migration. The
Pact includes the proposal for a Regulation on Asylum and Migration Management (RAMM) which
foresees a “common framework” for asylum and migration management at European Union (EU) level
and aims to replace the Dublin III Regulation. Although it does introduce new corrective solidarity
mechanisms, the new proposal preserves the same basic rules for the allocation of responsibility. These
rules have been a significant source of conflict among Member States since the establishment of the
Common European Asylum System (CEAS), and divisions are thus likely to persist in the future.
In the meantime, the Dublin III Regulation remains the applicable legal framework for determining which
Member State is responsible for an application for international protection. This briefing aims to provide
an update on developments in legislation, policy and practice relating to the application of the Dublin III
Regulation in 2020. It draws on a series of other implementation assessments carried out by the
European Council on Refugees and Exiles (ECRE) in recent years. It is based on information gathered
through ECRE’s databases, namely the Asylum Information Database (AIDA) and the European
Database of Asylum Law (EDAL), as well as other sources where relevant. Data for the year 2020 in
this update are based on information made available by national authorities, civil society organisations,
and Eurostat.
The year 2020 was marked by the suspension of transfers and fewer Dublin procedures as a result of
COVID-19. Despite the pandemic, however, countries continued to send requests and to subject a
relatively high number of applicants for international protection to Dublin procedures. Nonetheless, very
few people reached the final stage in the procedure, i.e. the actual transfer of responsibility for an
applicant from the requesting EU Member State to the Member State deemed responsible. The low
number of transfers, the disregard for the family provisions, and other implementation gaps documented
in 2020 in this update continue to call into question the operability of the current Dublin system – and
of any new system based on the same principles.
*
This report was written by Jean-David Ott at ECRE. We would like to thank the AIDA experts as well as
Member State authorities for the provision of Dublin statistics and relevant information. All errors remain our
own.
2
Key Dublin statistics for 2020
In 2020, 471,300 individuals applied for international protection in the European Union (EU) Member
States, down by 32.6 % compared with 2019. This significant decrease is mainly due to the outbreak
of COVID-19, which resulted in travel restrictions and the closure of borders.
Fluctuations in Dublin procedures in 2020
Comprehensive EU-wide statistics on the number of Dublin procedures in 2020 are lacking, but
available information suggests that around 95,000 decisions were issued in response to outgoing Dublin
requests, which represents a decrease by one-third compared to 2019.
1
The decrease in Dublin
procedures is particularly visible when looking at the 10 Member States which send the majority of
Dublin requests:
Source: AIDA. Figures on NL and SE were extracted from Eurostat.
With the exception of Greece, the number of outgoing Dublin requests decreased in all of the Member
States represented above. By way of illustration, requests fell by around -39% in Germany, -35% in
France and by more than half in Italy and Malta.
Only 6 out of 27 Member States recorded an increase in outgoing Dublin requests compared to 2019 -
namely Bulgaria, Greece, Spain, Croatia, Poland, Slovenia and Slovakia. The increase in Dublin
procedures was particularly significant in Spain as the country issued nearly 800 outgoing Dublin
requests in 2020, while it had issued less than 10 outgoing Dublin requests in each of the last three
years respectively.
A non-EU country where the number of Dublin procedures more than doubled is the United Kingdom
(UK). Although it left the EU on 31 January 2020, the UK remained subject to the Dublin III Regulation
during the transition period. In 2020, the United Kingdom sent a total of 8,502 outgoing requests and
received 2,331 incoming requests, compared to 3,258 and 2,236 requests respectively in 2019.
2
In
Greece, the Regional Asylum offices and the Greek Dublin Unit prioritised take charge requests of
people who wished to be reunited with family members or relatives residing in the UK. A large number
1
EASO, EASO Asylum Report 2021, available at: https://bit.ly/2VNQ4Aq, p.84.
2
AIDA, Country report United Kingdom – Update on the year 2020, March 2021, available at:
https://bit.ly/3mdXdVQ, p.30.
0
10000
20000
30000
40000
50000
60000
DE FR BE NL GR IT AT SE IE MT
Outgoing Dublin requests: 2019-2020
2019 2020
3
of these asylum applications were submitted in December 2020, in order that the relevant outgoing
requests could be sent before the end of the year.
3
In January 2021, the UK issued guidance explaining
how to process cases for which a Dublin Regulation responsibility request had been made by a Dublin
State to the UK prior to the end of the transition period on 31 December 2020 but where either no
decision had been made on the request or a decision had been made but the transfer had not taken
place before the end of the transition period.
4
Asylum applications and Dublin procedures
Despite the overall decrease in applicants and Dublin procedures in the EU, the number and proportion
of applicants subject to Dublin procedures in 2020 should not be underestimated:
Share of Dublin procedures in the top 4 operators of the Dublin system: 2020
Total number of asylum applicants Total number outgoing Dublin requests
The charts above refer to the four countries (ordered left to right) which sent the majority of outgoing
Dublin requests in 2020. They demonstrate that a high proportion of applicants for international
protection were channelled into Dublin procedures; i.e. 29.4% of all applicants in Germany and 32% of
all applicants in France were subject to a Dublin procedure in 2020. In Belgium, this figure was even
higher as nearly 40% of all asylum seekers were channelled into a Dublin procedure. It should be further
noted that Germany and France continue to be both the main destination countries of asylum seekers
and the main users of the Dublin system. In 2020, these two Member States received 102,581 and
93,475 asylum applicants respectively and issued 30,135 and 30,054 outgoing Dublin requests.
The high proportion of applicants being subjected to a Dublin procedure in 2020 raises questions as to
the logic and feasibility of the Dublin system. On top of the numerous obstacles that have been
documented in recent years regarding the lack of implementation of transfers, the outbreak of COVID-
19 and the travel restrictions were an additional limitation which should have encouraged Member
States to invest in regular procedures and to take responsibility for the applicants concerned. Instead,
Member States continued to subject a high number of applicants to Dublin procedures which were
unlikely to result in a transfer.
3
AIDA, Country report Greece – Update on the year 2020, June 2021, available at: https://bit.ly/3Da0KdV,
p.76.
4
UK Home Office, Requests made to the UK under the Dublin III Regulation prior to the end of the Transition
Period, 13 January 2021, available at: https://bit.ly/3kyoDnV.
Germany
France
Greece
Belgium
4
Outgoing and incoming procedures
In 2020, Member states received the following incoming and issued the following outgoing requests:
Source: AIDA. Figures on BE, ES, NL, IT, FI, LI, SK, LT, EE, LV, DK and NO are based on Eurostat.
8
10
20
24
37
100
116
168
200
228
341
418
420
486
630
665
767
788
976
1432
2147
2768
3196
4057
5222
6607
7014
8502
30054
30135
63
275
575
16
1804
102
1904
3221
245
2282
349
627
373
937
983
1522
2304
8160
405
1318
4818
22088
4575
3759
4389
2985
8869
2331
8078
17253
0 5000 10000 15000 20000 25000 30000 35000
EE
LV
LT
LIT
HU
CY
BG
RO
SK
PL
FI
NO
LU
PT
MT
DK
HR
ES
IE
SI
SE
IT
AT
CH
NL
BE
GR
UK
FR
DE
Dublin requests: 2020
Incoming requests Outgoing requests
5
Similarly to previous years, the majority of countries received more incoming requests than the number
of outgoing requests sent. Exceptions include Germany, France, Belgium, the Netherlands, the
United Kingdom, Ireland, Switzerland, Luxembourg and Lichtenstein which issued more outgoing
requests than they received incoming requests.
Italy continued to be by far the country which receives most incoming requests. In 2020, Italy submitted
2,768 outgoing requests and received 22,088 requests from other countries, mainly from Germany and
France. Other countries which received a significant number of requests include Germany, Greece and
Spain. However, in comparison to 2019, the number of incoming requests decreased by -27% in
Germany, -33% in Greece and -37% in Italy in 2020. On the contrary, in Spain they increased by +15%
in 2020 and, more strikingly, a rise of incoming requests was reported in Romania (+132%) and Ireland
(+102%).
It is also important to note that Hungary continued to receive numerous requests from other countries,
mainly from France, despite extensive evidence of the deficiencies in the Hungarian asylum system
and new infringement proceedings launched by the European Commission in 2020.
5
5
See for example: ECRE, ‘Hungary: Facing Fifth Infringement Procedure Related to Asylum Since 2015’, 6
November 2020, available at: https://bit.ly/3zKyoE9.
6
Transfers
As regards actual transfers carried out under the Dublin Regulation, available figures for 2020 point to
the following outgoing and incoming transfers:
Source: AIDA. Figures on FR, GR, NL, SE, BE, IT, FI, NO, SK, EE, LV and LT are based on Eurostat.
73
1
34
35
84
10
11
40
25
171
14
1
258
1
77
882
80
295
1442
45
346
401
510
877
765
11
4369
1626
5
6
6
6
6
7
8
8
10
23
24
27
29
47
93
105
113
124
191
320
454
535
678
941
1648
1825
2953
3189
0 1000 2000 3000 4000 5000
RO
LIT
LT
LV
SI
EE
IE
HR
SK
PT
BG
HU
PL
CY
NO
UK
LU
FI
IT
MT
BE
SE
AT
CH
NL
GR
DE
FR
Dublin transfers: 2020
Outgoing transfers Incoming transfers
7
The figures above indicate that France and Germany continue to be the two main operators of the
Dublin system as they received and carried out the majority of transfers in the EU. However, for the first
time, France carried out more transfers than Germany. This is mainly due to COVID-19 and the fact
that the German authorities announced an overall suspension of transfers in March 2020. Along with
this announcement, Germany also stated that the deadline to carry out transfers would be suspended,
6
meaning that Germany would not become responsible for the asylum application despite not having
complied with the six-month deadline in Article 29(1) Dublin III Regulation.
Germany’s suspension of the time limit for transfers was criticised by NGOs as not compliant with the
Dublin III Regulation. They argued that it would leave asylum seekers in a prolonged state of limbo and
significantly extend the length of their asylum procedure.
7
In its guidance of 16 April 2020, the European
Commission clarified that, “where a transfer to the responsible Member State is not carried out within
the applicable time limit, responsibility shifts to the Member State that requested the transfer pursuant
to Article 29(2) of the Dublin Regulation”. It explicitly stated that “no provision of the Regulation allows
to derogate from this rule in a situation such as the one resulting from the COVID-19 pandemic”.
8
Several Administrative Courts in Germany have also ruled against the suspension of the time limit for
transfers during COVID-19.
9
In August 2020, for example, the Administrative Court of
Greifswald ruled that the six-month time limit cannot be suspended if the suspension solely aims at
preventing the expiration of the transfer period, and not at enabling effective legal protection for the
applicant.
10
Nevertheless, divergent rulings on the matter were reported throughout the year, which led
the German Federal Constitutional Court to lodge a request for a preliminary ruling on 19 April 2021.
The Court of Justice of the European Union (CJEU) will have to clarify whether the suspension of the
implementation of a transfer decision due to COVID-19 falls within the scope of Article 27(4) of the
Dublin III Regulation.
11
Other countries which received a significant number of transfers in 2020 include Italy (1,442), the
United Kingdom (882) and Switzerland (877), but these numbers are much lower than in 2019.
Greece only received 11 transfers but ranked third in implementing outgoing transfers. It is also
important to note that, for the second consecutive year, Austria transferred one person to Hungary. No
information was made available by the Hungarian and Austrian authorities on the case involved,
however.
The low number of transfers effected (i.e. that end with the person actually being transferred) continues
to call into question the efficiency and operability of the Dublin system. ECRE has consistently
6
The BAMF referred to Section 80 (4) of the German Administrative Court Regulations (VwGO) which
foresees that an authority can suspend the execution of an administrative act that remains enforceable
despite legal remedies. Accordingly, this would apply to Dublin procedures as appeals against such
decisions have no suspensive effect. The BAMF further relied on Article 27 (4) of the Dublin III Regulation,
which enables the Member States to suspend the implementation of the transfer decision pending the
outcome of the appeal or review.
7
PRO ASYL and Equal Rights Beyond Borders, Praxishinweise zur aktuellen Aussetzung von Dublin-
Überstellungen und Überstellungsfristen auf Grund der Corona-Pandemie, 8 May 2021, avaialble in
German at: https://bit.ly/3xWcoVU.
8
European Commission, Guidance on the implementation of relevant EU provisions in the area of asylum
and return procedures and on resettlement (2020/C 126/02), 16 April 2020, available at:
https://bit.ly/32J7csl, para. 1.2.
9
(Germany) Administrative Court of Düsseldorf, Decision 15 L 776/20.A, 18 May 2020; Administrative Court
of Potsdam, Decision 2 K 3425/18.A, 12 June 2020; Administrative Court of Berlin, Decision 25 L 123/20.A,
22 June 2020;; Administrative Court of Lüneburg, Decision 10 LA 193/20, 18 September 2020.
10
(Germany) Administrative Court of Greifswald, Decision 3 A 1865/19 HGW, 28 August 2020; See EDAL
summary at: https://bit.ly/3AQTotz.
11
CJEU, Case C-245/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany)
lodged on 19 April 2021 –Bundesrepublik Deutschland represented by the Bundesministerium des Innern,
für Bau und Heimat v MA, PB, available at: https://bit.ly/3iW5wDJ.
8
emphasised that Dublin transfers are not mandatory as the Dublin Regulation provides choices and
discretion to Member States, which can examine asylum claims themselves to avoid unnecessary
human, administrative and financial costs.
12
This was particularly relevant in 2020 which was marked
by COVID-19, travel restrictions, and the suspension of Dublin transfers in nearly all European
countries.
The rate of Dublin transfers effected compared to outgoing requests for different countries was as
follows:
Source: AIDA. Figures on BE, IT, SE, HR, NO, FI, SK , LT, LV and EE are based on Eurostat. As there is a certain time that
runs between a request being sent and the person being transferred, i.e. requests sent in a calendar year and transfers
implemented in another calendar year — the figures above may not relate to the same group of people.
The countries presented in the graph above have been sorted from left to right according to the number
of Dublin procedures initiated, i.e. the number of outgoing Dublin requests sent in 2020. It demonstrates
that the transfer rates are significantly lower in countries with a higher number of Dublin procedures (on
the left side of the graph), compared to those with fewer Dublin procedures (on the right side of the
graph). Of the 29 countries represented, only three (Hungary, Latvia and Estonia) achieved Dublin
transfers in more than half the procedures they initiated – although the figures in these three countries
should be read with caution as they refer to only a handful of applicants, namely 27 people transferred
from Hungary to another country, 6 from Latvia and 7 from Estonia.
More than half the countries have a transfer rate below 30%, varying from 26% in Greece, 21% in
Austria, 13% in Poland, 7% in Italy, to as low as 4% in Portugal, 1% in Croatia; and less than 1% in
Slovenia, Ireland and Spain. The very low transfer rate for the top three operators of the Dublin system
in 2020, Germany, France and the United Kingdom, deserves particular attention:
- Germany implemented 2,953 transfers out of 30,135 requests, marking a transfer rate of only 10%.
This means that on average only 1 in 10 applicants was effectively transferred after having been
channelled into a Dublin procedure. A low transfer rate was also reported in previous years (17%
12
See for example: ECRE, The implementation of the Dublin III Regulation in 2018, March 2019, available at:
https://bit.ly/3eRgKUr; ECRE, To Dublin or not to Dublin?, November 2018, available at:
https://bit.ly/2EbDosN. See also CJEU, Case C-56/17 Fathi, Judgment of 4 October 2018, EDAL, available
at: https://bit.ly/2TUdfap, para 53.
10%
11%
1%
26%
7%
31%
23%
21%
7%
25%
0 0 0
1%
50%
4%
27%
22%
36%
13%
5%
30%
20%
47%
72%
25%
30%
60%
87%
DE FR UK GR BE NL CH AT IT SE SI IE ES HR MT PT LU NO FI PL SK RO BG CY HU LIT LT LV EE
Rate of outgoing transfers to outgoing requests (rounded): 2020
9
in both 2018 and 2019) which suggests structural problems in the Dublin system, rather than
obstacles resulting from COVID-19.
- Similar observations apply to France, where only 3,189 persons were transferred out of 30,054
requests, thus marking a transfer rate of 11%. In the United Kingdom, only 105 transfers were
carried out of 8,502 requests, thus marking a transfer rate of approximately 1.2%
Overall, the comparison between outgoing requests and actual transfers demonstrates that only a small
fraction of Dublin procedures led to a transfer in 2020. European countries channelled too many
applicants into a Dublin procedure that would not reach its final stages. Moreover, monthly statistics
show that countries started re-initiating Dublin procedures as of June 2021 and that the number did not
decrease during the second wave of the pandemic despite new travel restrictions across Europe. This
confirms ECRE’s assessment that the majority of countries applying the Dublin Regulation make a
conscious policy choice to subject both asylum seekers and their own administration to lengthy Dublin
procedures even though they know in advance that these procedures will not end in a transfer. The
consequences are damaging for applicants as they face a prolonged state of limbo, lengthy asylum
procedures, and limited rights and guarantees.
13
13
See further, EPRS/ECRE, Dublin Regulation on international protection applications, February 2020, p.62,
available at: https://bit.ly/2NJvdqp, p.62. For an overview of procedural safeguards during the Dublin
procedure in practice, see also: AIDA, The implementation of the Dublin III Regulation in 2019 and during
COVID-19, August 2020, available at: https://bit.ly/3gdh5V2, p. 20-23.
10
The responsibility criteria
Chapter III of the Dublin Regulation lays down a hierarchy of criteria for determining which country is
responsible for examining the asylum application. Disaggregated statistics on outgoing and incoming
requests by ground are available for 29 countries as follows:
Source: AIDA. Figures on GR, SE, FR, CH, DE, NL and DK are based on Eurostat.
The graph above demonstrates the prevalence of take back requests based on Articles 18 and 20(5)
of the Regulation (represented in grey), i.e. cases where the applicant has already lodged one asylum
application in a Member State and travels on to another Member State. The latter then initiates
proceedings to see which Member State is responsible for ”taking back”' the applicant. “Take back”
requests made up more than 70% of the total number of requests in 19 out of the 29 countries above.
Fewer countries, including Greece, Cyprus, Lithuania, Slovenia and Malta mainly sent “take charge”
requests, i.e. cases where a first application is lodged and a Member State initiates the procedure to
determine which Member State is responsible. A Member State can request another Member State
take charge of an applicant, usually due to the presence of family members. Interestingly in Italy and
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
GR
CY
LT
SI
MT
SE
BG
NO
FI
LV
HU
ES
FR
IE
CH
HR
DE
LU
BE
NL
RO
AT
DK
EE
PL
LIT
PT
IT
SK
Outgoing request by category: 2020
Take charge Take back
11
Spain, which are two frontal EU Member States where many applicants arrive from outside the EU, the
majority of requests were take back requests.
The high number of take back requests indicates that the majority of people placed in a Dublin
procedure in the above countries had already lodged an asylum application in another country. ECRE
has already explained in previous research that onward movement may occur for many reasons related
to the persons and to the situation in the country where they find themselves. The person’s personal
and socio-economic situation, their family status or the asylum and reception situation where they are
located are all reasons why they may decide or be forced to depart from a Member State.
14
Family unity
The Dublin III Regulation lists family unity as the first in the hierarchy of responsibility criteria.
15
It should
be noted that the concept of family unity under the Dublin regulation only applies to a limited number of
family members in any case, namely the spouse/partner and underage children. For unaccompanied
minors it can be extended to other family members as listed in the Regulation, and when in the best
interests of the child.
The following chart illustrates the share of “take charge” requests for family reunification out of the total
number of outgoing requests, based on available figures in 28 countries for 2020:
Source: Calculations based on Eurostat
Out of the total outgoing Dublin requests, only 4% were based on the family unity criteria, and 96% on
other grounds. This indicates that Member States continue to ignore these criteria and are therefore not
respecting the hierarchy, as the family provisions are rarely used in most countries, despite the likely
presence of family members elsewhere in the EU for at least some applicants.
16
At national level, the share of family unity requests out of the total outgoing requests in 2020 was as
follows:
14
See further, EPRS/ECRE, Dublin Regulation on international protection applications, February 2020,
available at: https://bit.ly/2NJvdqp.
15
Articles 8-11 Dublin III Regulation.
16
See further, EPRS/ECRE, Dublin Regulation on international protection applications, February 2020,
available at: https://bit.ly/2NJvdqp; ECRE, The Dublin system in 2018, March 2019, available at:
https://bit.ly/3dM61KL; UNHCR, Left in Limbo: Study on the implementation of the Dublin III Regulation,
August 2017, available at: http://bit.ly/2kPx9SX, 86 et seq.;
4%
96%
Share of family requests out of total outgoing requests: 2020
Family unity Other grounds
12
Source: Eurostat. Figures on MT, DE, UK, FR, AT, IE, SE, PL, GR and BG are based on AIDA.
Of the 28 countries represented above, only one country – Bulgaria – applied the family unity criteria
in at least half of its outgoing Dublin requests. With the exception of Greece, the share of family unity
requests out of the total of outgoing Dublin requests remained very low in all other countries –
representing less than 10% of all requests in 24 countries.
The extremely low level of family unity requests in Germany (296 out of 30,125 requests), France (439
out of 30,054 requests) and Belgium (44 out of 6,563 requests) should be highlighted as these are
countries frequently using the Dublin procedure. Similar observations can be made about the
Netherlands, Switzerland or Austria. Greece remains one of the only countries frequently applying
the family unity criteria, with around 40% of its outgoing requests in 2020 relating to family reunification
– although it should be noted that this marks an important decrease compared to 60% in 2019 and 70%
in 2018.
As worrying as the low numbers of requests based on the family unity criteria, was the persistence of
obstacles to the implementation of transfers based on these criteria due to practices adopted by
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
BG
GR
HU
LT
LV
RO
PL
SE
LU
IE
AT
FR
FI
NO
UK
DE
NL
BE
IT
MT
ES
SK
CH
SI
DK
PT
EE
LIT
Share of family unity requests out of total outgoing requests: 2020
Family Unity Other grounds
13
receiving Member States. These include imposing excessive evidentiary requirements such as
translation and authentication of documents proving family ties, DNA tests for children, and an overly
strict interpretation of time limits.
17
Suspension of transfers
Litigation related to Dublin procedures continues to account for a large share of asylum-related cases
before domestic and European Courts. By way of illustration, the Dutch Council of State lodged four
different pre-judicial questions regarding the interpretation of provisions of the Dublin Regulation within
a single month in May 2021.
18
The impact of COVID-19 also raised new questions. As mentioned above,
the German Federal Constitutional Court lodged a request for a preliminary ruling on 19 April 2021 in
order to clarify whether the suspension of the implementation of a transfer decision due to COVID-19
falls within the scope of Article 27(4) of the Dublin III Regulation.
19
The duty to investigate and obtain guarantees
The duty of sending countries to obtain guarantees to ensure the legality of Dublin transfers in certain
cases continues to be interpreted differently across Europe. Most countries do not have a formal policy
in place which requires the provision of individual guarantees prior to a Dublin transfer. A few exceptions
include Cyprus or Greece which require guarantees as a matter of general practice, while other
countries request such guarantees only from specific destination countries, in particular from Greece
or Bulgaria.
Transfers to Italy deserve particular attention as the country received by far the largest share of
incoming requests in 2020 (over 22,000 requests). It also received the third highest number of transfers
after Germany and France. Following the guarantees provided by the Italian Dublin Unit at the beginning
of 2019 on access to accommodation, several countries, including Austria and Belgium, discontinued
their previous policy of requesting guarantees for families with children. In the Netherlands, the Council
of State confirmed in 2020 that no guarantees were necessary prior to the transfer of vulnerable asylum
seekers to Italy,
20
in line with its previous case-law on the matter.
21
However, diverging rulings on the need to obtain guarantees from Italy were reported in other countries.
In Portugal, the dominant position in jurisprudence seems to be that the determining authority is not
bound by a general duty to inquire into the situation in the responsible Member State, and that the
situation in Italy does not amount to one of generalised risk of torture, inhuman or degrading treatment.
22
Nevertheless, the Portuguese Administrative Circle Court (TCA) South considered that in certain cases
the determining authority failed in its obligation to seek guarantees from Italy
23
and that in another case
there were “clear, obvious and proven indications of the existence of systemic flaws” in the Italian
17
AIDA, Country report Greece – Update on the year 2020, June 2021, available at: https://bit.ly/3AhkFWq,
p.77-79.
18
CJEU, Request for a preliminary ruling from the Dutch Council of State in the Case C-323/21, C-324/21 and
C-325/21 of 25 May 2021, as well as in Case C-338/21 of 31 May 2021.
19
CJEU, Case C-245/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany)
lodged on 19 April 2021 –Bundesrepublik Deutschland represented by the Bundesministerium des Innern,
für Bau und Heimat v MA, PB, available at: https://bit.ly/3iW5wDJ.
20
(Netherlands) Council of State, ECLI:NL:RVS:2020:987, 8 April 2020 and Council of State,
ECLI:NL:RVS:2020:986, 8 April 2020.
21
(Netherlands) Council of State, Decision No 201809552/1, 12 June 2019; See also: Council of State,
Decision No 201901495/1/V3, 8 April 2019
22
For a detailed list of cases, see: AIDA, Country report Portugal – Update on the year 2020, June available
at: https://bit.ly/39et8NX, p.56-57.
23
(Portugal) TCA South, Decision 2221/19.3BELSB, 18 June 2020, available at: https://bit.ly/3fbGONR.
14
system and that its malfunctioning was “endemic and deliberate”, reaching the threshold established in
European jurisprudence.
24
In Switzerland, the Federal Administrative Court stated in 2020 that the guarantees provided by the
Italian authorities were not specific enough because families transferred from Switzerland to Italy no
longer have access to the second-line reception centres under new legislation.
25
The Italian authorities
were thus required to provide more specific guarantees concerning reception conditions in each
individual case. The Court suspended several Dublin transfers throughout 2020 because the State
Secretariat for Migration (SEM) had not sufficiently investigated access to healthcare and adequate
accommodation in Italy.
26
The list of accommodation facilities for families circulated by Italian authorities
in April 2020 was also considered insufficient by the Court.
27
It should be further noted that, in January
2020, the Swiss Refugee Council published a report on reception conditions in Italy for Dublin returnees,
demonstrating obstacles to accessing adequate accommodation and health care.
28
The Swiss Refugee
Council will continue to document transfers to Italy in 2021 within the framework of the Dublin Returnee
Monitoring Project (DRMP).
As regards individual guarantees from Greece, no particular change was noted in 2020. According to
the Greek Dublin Unit, in the context of return, some Member States such as Germany and the
Netherlands have requested specific housing guarantees.
29
The human rights threshold
Domestic courts continued to scrutinise Dublin procedures to ensure the legality of Dublin transfers in
certain cases. In accordance with well-established European jurisprudence, a Dublin transfer is
considered to be unlawful if it exposes the individual to a real risk of a serious violation of the prohibition
of inhuman or degrading treatment under Article 3 ECHR and Article 4 of the Charter in the destination
country.
30
This requires assessing the situation in the destination country, inter alia regarding access to
the asylum procedure and reception as well as the risk of chain refoulement, or more recently the impact
of the health pandemic on national systems.
In Belgium for example, the Council of Alien Law Litigation (CALL) suspended a transfer decision to
Italy because the Belgian Immigration Office did not take into consideration the risks resulting from
COVID-19 on reception and sanitary conditions for applicants for international protection.
31
In two other
cases, the CALL considered that the applicants did not demonstrate in their particular cases that the
24
(Portugal) TCA South, Decision 2364/18.0BELSB, 14 May 2020, available at: https://bit.ly/3d3LrqC (see
EDAL case summary at https://bit.ly/3t1EJZ5). This decision was later reversed by the STA. TCA South,
Decision 1301/19.0BELSB, 14 May 2020, available at: https://bit.ly/3177qYm).
25
(Switzerland) Federal Administrative Court, Press release on Stricter criteria for Dublin transfers to Italy, 17
January 2020, available at: https://bit.ly/3hDsn5X.
26
See for example: Swiss Federal Administrative Court, Decision F-2751/2019, 17 March 2020; Decision D-
4067/2019, 14 January 2021; D-1869/2019, 22 January 2020, D-552/2020 of 5 February 2020, E-6810/2016
of 11 March 2020; D-5952/2020 of 4 December 2020.
27
(Switzerland) Federal Administrative Court, Decision F-4872/2020, 5 November 2020, c. 4.4.
28
Swiss Refugee Council, Reception conditions in Italy: Updated report on the situation of asylum seekers
and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020, available at:
https://bit.ly/3cSzToZ.
29
Information provided by the Greek Dublin Unit on 12 March 2021. Note that, in the context of returns, several
domestic courts have cancelled removals of international protection beneficiaries to Greece in 2021 due to
a serious risk of inhuman or degrading treatment. See for ex: German Higher Administrative Court, Decision
11 A 1564/20.A, 21 January 2021, EDAL summary available at: https://bit.ly/3zpqijT.
30
ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011, EDAL,
available at: https://bit.ly/2ErG9VZ; CJEU, Case C-578/16 PPU C.K., Judgment of 16 February 2017, EDAL,
available at: https://bit.ly/2Wvgjqr, CJEU, Case C-163/17 Jawo, Judgement of 19 March 2019, EDAL,
available at: https://bit.ly/2WS5PUC.
31
(Belgium) CALL, Decision No 238 756, 22 July 2020.
15
health pandemic in Italy would constitute a risk of inhuman or degrading treatment.
32
Similarly, in the
Netherlands, the Council of State assessed the situation in Italy after the start of the COVID-19
pandemic and found that Italy remained responsible for examining the application, even though the
transfer was temporarily impossible in practice.
33
In Portugal, the coronavirus pandemic did not impact
the legality of Dublin transfers but rather the moment of their execution. The Portuguese Administrative
Circle Court (TCA) South ruled in two different cases that the transfer to Italy should be carried out once
the COVID-19 restrictions were lifted, provided that mobility and living conditions in Italy were ensured.
34
• Transfers to Italy: In October 2020, a new decree reformed the Italian reception system, now
called the “system of accommodation and integration (SAI)”, with the aim of improving access to
reception and the type and level of services provided in first and second accommodation facilities.
On 15 April 2021, the ECtHR noted that these amendments included an extension of the range of
services to be provided in SAI facilities and, according to UNHCR, effective access to essential
services was guaranteed as the right of applicants for international protection to register their
residence had been restored. As a result, the Court issued an inadmissibility decision in which it
refused to suspend the Dublin transfer of a single mother and her two minor children to Italy,
considering that it would not pose a risk of treatment in violation of Article 3 ECHR.
35
Three domestic judgements from the Netherlands have followed this recent jurisprudence,
concluding that the applicants would not be at risk of violation of Article 3 ECHR and Article 4 of the
Charter if they were transferred back to Italy under the Dublin III Regulation, even in case of
individual vulnerabilities.
36
The impact of the ECtHR decision in M.T. v Netherlands on case-law in
other countries is still unclear. It is important to note, however, that certain reports have indicated
that the new SAI system is primarily designed for beneficiaries of international protection and
unaccompanied children, thus raising concerns about the reception of other applicants, and that
the level of services provided may vary significantly depending on where the applicant is
accommodated.
37
Moreover, in answer to a request sent by ASGI, the Italian Dublin Unit indicated
that there are no reserved places for Dublin returnees in the reception system”.
• Transfers to Bulgaria: While the Dutch Council of State still seems to apply the principle of mutual
trust to Bulgaria,
38
Polish authorities systematically request that the Bulgarian authorities provide
individual guarantees,
39
and Belgian authorities have halted transfers to Bulgaria.
40
In Switzerland
the Federal Administrative Court ruled in one case that there were no systemic deficiencies in the
asylum and reception systems that should lead to a general suspension of transfers.
41
Nevertheless, in another case concerning a family, the Swiss Federal administrative court ruled
32
(Belgium) CALL, Decision No 239 671, 13 August 2020; No 239 854, 19 August 2020.
33
(Netherlands) Council of State, Decision 201907322/1, 201907435/1, 202001915/1, 8 April 2020, available
at: https://bit.ly/3nGHjUp.
34
(Portugal) TCA South, Decision 61/20.6BELSB, 2 July 2020, available at https://bit.ly/3f9Od0a; TCA South,
Decision 357/20.7BELSB, 29 October 2020, available at: https://bit.ly/3setb4t.
35
European Court of Human Rights (ECtHR), M.T. v the Netherlands, 15 April 2021, available at:
https://bit.ly/3AjsgUp.
36
Court of The Hague [Rechtbank Den Haag], Applicants (Nigeria) vs State Secretary for Security and Justice
(Staatssecretaris van Justitie en Veiligheid), 04/05/2021, ECLI:NL:RBDHA:2021:4688, available at:
https://bit.ly/3zeldLT; Court of The Hague [Rechtbank Den Haag], Applicant vs State Secretary for Justice
and Security (Staatssecretaris van Justitie en Veiligheid), 07/07/2021, ECLI:NL:RBDHA:2021:6992,
available at: https://bit.ly/3DdyruX; Court of The Hague [Rechtbank Den Haag], Applicants (Nigeria) vs State
Secretary for Security and Justice (Staatssecretaris van Justitie en Veiligheid), 04/05/2021,
ECLI:NL:RBDHA:2021:4688, available at: https://bit.ly/38cttAb.
37
AIDA, Country report Italy – Update on the year 2020, June 2021, available at: https://bit.ly/3u0KXKh (see
Reception chapter)
38
(Netherlands) Council of State, Decision No 201810397/1, 28 August 2019.
39
Information provided by the Poliqh Office for Foreigners, 26 January 2021.
40
(Belgium) Myria, Contact meeting, 20 January 2021, para 90, available at: https://bit.ly/3qRv6ua.
41
(Switzerland) Federal Administrative Court, Decision F-7195/2018, 11 February 2020.
16
that the SEM had not sufficiently examined the reception conditions in Bulgaria.
42
In Italy, the Court
of Turin cancelled a Dublin transfer to Bulgaria considering that there are serious systemic
deficiencies in asylum procedures, such as the use of force by the police to prevent the entry of
applicants into the national territory; restrictions on the freedom of movement of asylum seekers;
shortcomings in reception and support services; and extremely low recognition rates.
43
In Germany,
the Administrative Court of Magdeburg judged that Germany was responsible for the determination
of the application of a person linked to the opposition in Turkey because in this particular case the
Bulgarian asylum procedure had systemic flaws that would have entailed a risk of inhuman or
degrading treatment. It considered that a proper examination of the application could not be
expected from the Bulgarian authorities and that they would likely return the applicant to Turkey.
44
• Transfers to Croatia: In 2019, the Swiss Federal Administrative Court issued a reference judgment
ordering the determining authority to examine the existence of systemic deficiencies and the
general situation in Croatia.
45
Since then, some cases were sent back to the determining authority
for further clarification, e.g. regarding access to healthcare for single men, while other cases
involving families with health issues were rejected. The Swiss Court generally takes into
consideration reports of push-backs, in particular in the context of ”take charge” cases because the
applicant needs to have access to the asylum procedure.
46
In the context of ”take back” requests,
i.e. where an application for international protection has already been lodged, it is generally
assumed that the applicant will not be pushed back.
47
Diverging opinions have also been reported
in the Netherlands. While the Regional Court Den Bosch ruled in 2020 that the principle of mutual
trust no longer stands with Croatia due to extensive evidence of push-backs,
48
the Council of State
considered in July 2021 that the principle of mutual trust should apply to transfers to Croatia.
49
• Transfers to Spain: The Spanish asylum system has been subject to particular pressure due to a
significant increase in arrivals and applicants for international protection in recent years. Yet, in
Portugal, the TCA South considered that the strong migratory pressure and poor reception
conditions, were not sufficient to consider that there would be a serious risk of inhuman or degrading
treatment.
50
Similarly, in Belgium, most transfers are upheld. However, in 2020 the CALL
suspended a transfer decision to Spain, finding that the Immigration Office violated its duty of care
because it did not assess the reception conditions for Dublin returnees in Spain, which could
possibly violate Article 3 ECHR.
51
• Transfers to Poland: In the Netherlands, the District Courts of Amsterdam and Groningen have
ruled that the principle of mutual trust does not apply to Dublin transfers to Poland concerning
applicants who are part of the LGBTQI+ community.
52
The Council of State has not yet ruled on
this matter.
42
(Switzerland) Federal Administrative Court, Decision D-5126/2018, 15 April 2020.
43
(Italy) Civil Court of Turin, decree 29 September 2020, procedure no. 12340/2020, available in Italian at:
https://bit.ly/3DxlzA6.
44
(Germany) Administrative Court of Madgeburg (VG), Decision 2 B 92/20 MD, 24 March 2020, see EDAL
summary at: https://bit.ly/3EphRsz.
45
(Switzerland) Federal Administrative Court, Decision E-3078/2019, 12 July 2019.
46
(Switzerland) Federal Administrative Court, Decision F-661/2020, 7 February 2020, in which the Court
argued similarly to the reference judgement that SEM had not sufficiently taken into account the already
well-documented push-back problems and systemic deficiencies of the asylum procedures in Croatia. See
also E-5830/2019 of 30 December 2019, E-4211/2019 of 9 December 2019, F-48/2021 of 8 January 2021
47
(Switzerland) Federal Administrative Court, Decisions F-4204/2020 of 2 September 2020, E-5910/2020 of
10 December 2020, and D-540/2020 of 3 March 2020.
48
(Netherlands) Regional Court Den Bosch, ECLI:NL:RBDHA:2020:17088.
49
(Netherlands) Dutch Council of State, 19 July 2021, ECLI:NL:RVS:2021:1563.
50
(Portugal) TCA South, Decision 938/20.9BELSB, 15 October 2020, available at: https://bit.ly/3vUViYC.
51
(Belgium) CALL Decision No. 231 762, 24 January 2020.
52
(Netherlands) District Court Amsterdam, 29 July 2021, Case No. NL21.8894. 7; District Court Groningen,
Case No. NL21.1431, 28 April 2021.
THE ASYLUM INFORMATION DATABASE (AIDA)
The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and
Exiles (ECRE), containing information on asylum procedures, reception conditions, detention and content of
international protection across 23 countries. This includes 19 European Union (EU) Member States (Austria,
Belgium, Bulgaria, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, Netherlands,
Poland, Portugal, Romania, Sweden, Slovenia) and 4 non-EU countries (Switzerland, Serbia, Turkey, United
Kingdom).
The overall goal of the database is to contribute to the improvement of asylum policies and practices in Europe and
the situation of asylum seekers by providing all relevant actors with appropriate tools and information to support
their advocacy and litigation efforts, both at the national and European level. These objectives are carried out by
AIDA through the following activities:
❖ Country reports: AIDA contains national reports documenting asylum procedures, reception conditions,
detention and content of international protection in 23 countries.
❖ Comparative report: AIDA comparative reports provide a thorough comparative analysis of practice relating
to the implementation of asylum standards across the countries covered by the database, in addition to an
overview of statistical asylum trends and a discussion of key developments in asylum and migration policies
in Europe. Annual reports were published in 2013, 2014 and 2015. From 2016 onwards, AIDA comparative
reports are published in the form of thematic updates, focusing on the individual themes covered by the
database. Thematic reports have been published on reception (March 2016), asylum procedures (September
2016), content of protection (March 2017), vulnerability (September 2017), detention (March 2018), access to
the territory and registration (October 2018), reception (May 2019) and asylum authorities (October 2019).
❖ Fact-finding visits: AIDA includes the development of fact-finding visits to further investigate important
protection gaps established through the country reports, and a methodological framework for such missions.
Fact-finding visits have been conducted in Greece, Hungary, Austria, Croatia, France, Belgium and Germany.
❖ Legal briefings: Legal briefings aim to bridge AIDA research with evidence-based legal reasoning and
advocacy. With the assistance of information gathered from country reports, these short papers identify and
analyse key issues in EU asylum law and policy and identify potential protection gaps in the asylum acquis.
Legal briefings so far cover: (1) Dublin detention; (2) asylum statistics; (3) safe countries of origin;
(4) procedural rights in detention; (5) age assessment of unaccompanied children; (6) residence permits for
beneficiaries of international protection; (7) the length of asylum procedures; (8) travel documents for
beneficiaries of international protection; (9) accelerated procedures; (10) the expansion of detention; (11)
relocation; and (12) withdrawal of reception conditions.
❖ Statistical updates AIDA releases short publications with key figures and analysis on the operation of the
Dublin system across selected European countries. Updates have been published for 2016, the first half of
2017, 2017, the first half of 2018, 2018 and the first half of 2019, 2019 and the first half of 2020.
_______________________
AIDA is funded by the European Programme for Integration and Migration (EPIM), a collaborative initiative by the Network of
European Foundations, and the European Union’s Asylum, Migration and Integration Fund (AMIF).
