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Asylum Seekers

Explainer: Does the Dublin Regulation outline where IP applicants must claim asylum?

Contrary to a common misconception, there is no obligation on asylum seekers to apply for protection in the first safe country that they enter.

THERE IS A WIDELY held misconception in Ireland that asylum seekers are required to apply for asylum in the first safe country that they enter.

As conversations are had in Ireland about processing applications for international protection and housing international protection applicants, there can be an uptick in the spread of inaccurate information.

The idea that asylum seekers are supposed to apply in the first safe country, or the first EU member state, that they reach is one of the most common instances of this type of misinformation.

Here’s how the process actually works and what the facts are.

The Dublin Regulation

In 1990, an EU treaty was signed called the Dublin Convention. The Convention set out how to determine the EU member state that would be responsible for assessing an application for asylum filed within the bloc.

Since then, the Convention was replaced by the Dublin II Regulation in 2003 and later the Dublin III Regulation in 2013.

The Dublin III Regulation in turn is expected to be replaced in the near future by a new Asylum and Migration Management Regulation, but for now, is the most important EU text in terms of determining where an asylum application is processed.

The United Nations’ Refugee Convention also sets out international law on the rights of asylum seekers and countries’ responsibilities.

International protection applications

The common misunderstanding about the existing system is that asylum seekers are supposed to apply for protection in the first country that they enter after fleeing their country of origin.

Rather, the Dublin Regulation states that the first member state where an international protection application is lodged has a responsibility to handle the claim.

This means that there is not an obligation on an asylum seeker to make an application in the first safe country they arrive in, but if or when they do apply in an EU country, that country is obliged to take action.

If the applicant was previously based in a different EU member state, then the country handling their application has the option, under certain conditions, to request that the former country progress with the application instead.

Speaking to The Journal, immigration and human rights solicitor Wendy Lyons explained that “the really crucial thing to note is that it is not in any respect an obligation on a person to apply in any particular country”.

“There are no obligations placed on applicants; the obligations are placed on states,” Lyons stated.

There are certain conditions that mean if an application is entered in a certain country, that country must process the application, even if the asylum seeker applied for asylum somewhere else first.

“The first and most important thing is if somebody is an unaccompanied minor, or if they’re a minor that has family members in one particular state, then that member state is generally responsible, even if they’ve previously applied in another member state,” Lyons said.

“If there is another family member who still has an application pending, then that country is responsible, even if you’ve previously applied somewhere else,”she said.

“If none of those things apply, that’s when you can start looking back at when somebody was in a previous country.”

If a previous country is asked to take over an asylum seeker’s application, they are generally supposed to respond and accept them back, but there’s no penalty if they do not, Lyons said.

The grounds to request another member state to take over an individual’s application include the individual having already entered an application in that previous country or having obtained a visa in that country.

However, “unless somebody has already made an application in another country, it’s actually fairly unusual for that request to even be made”, Lyons said.

Ireland

Under Ireland’s International Protection Act 2015, anyone who comes to the country can apply for international protection at an airport, port, or the International Protection Office (IPO).

Generally, they must be allowed to stay in Ireland while the IPO processes and assesses their application. In some cases, an application may be transferred to another country under the Dublin III Regulation.

The Dublin III Regulation covers EU countries, Switzerland, Norway, Iceland and Liechtenstein.

When the IPO receives an application, it can consider those grounds to refer the applicant back to a previous country, like if they already had an application or a visa in another country covered by the Regulation.

“Let’s say somebody has previously applied for asylum in Greece and then they come to Ireland. Ireland can ask Greece to take them back (but Ireland does not have to ask),” Lyons explained.

“If you have previously applied in Greece but you have family members who have refugee status in Ireland, and then you come in and apply in Ireland, Ireland is responsible, even if you’ve previously applied somewhere else,” she said.

Lyons said it is not the norm for the Dublin Regulation to be invoked.

“We did see it quite a bit about 10 years ago or so when people who had been students in the UK came to Ireland and made asylum applications here. Ireland did try to send a lot of those students back. But it would be fairly unusual to try to send somebody back just because they had been present in another member state,” she said.

Refugee law

“It’s a principle of refugee law under the United Nations Refugee Convention that a person has the right to apply in whatever country they wish to apply in. That doesn’t mean that they’re necessarily going to be recognised as a refugee but they do have that right,” Lyons outlined.

“A lot of refugee law scholars are actually very critical of the Dublin Regulation because of the fact that it to a certain extent undermines that freedom.

“Even though it doesn’t put an obligation on the person, it does have the effect of making it impossible for people to sometimes apply in the country that they would prefer to apply. There is definitely an argument that it’s contrary to the rights of refugees under international law.

Despite the right for an asylum seeker to choose where to apply, if somebody passes through a country that’s regarded as a safe country and doesn’t apply for asylum, Lyons said it does happen that it can be used against them in the application process.

“It may be considered to affect their credibility because a decision maker can say, ‘well, somebody who was really afraid would have just applied as soon as they could’ – this is something that refugee law scholars would disagree with, but it is something that decision makers are allowed to have regard to, although they can’t make it determinative,” she said.

Lyons said she is unsure why the misconception that asylum seekers must apply in the first safe country they reach has become so widespread.

There is a provision in the Refugee Convention which does refer to somebody coming directly from a country, but what that means is that they were in that country when they were being persecuted – it doesn’t mean that they have to have been on a direct flight.

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