3. The Dublin procedure

> For more details see: Gisti, Les notes pratiques, L’accompagnement des demandeurs et demandeuses d’asile en procédure « Dublin », 2e édition, juillet 2019. (Gisti, Practical guides, Accompanying asylum seekers in the Dublin procedure, April 2018).

According to the rules of Dublin III, only one Member State is responsible for the assessment of an asylum request in the European Union (EU).

According to these rules:

• If you asked for asylum in another EU member state, this country remains responsible for your asylum request (whether the request is ongoing or rejected);
• If you haven’t asked for asylum elsewhere, “the Dublin III” regulations provide criteria that will enable France to determine the country responsible for the asylum request. For example, it can be the country which issued your first visa or a residence permit, or the country through which you entered into the EU and in which you first had your identity checked. This responsibility of member states ends twelve months after the date of an illegal crossing of the border. Other, more positive, criteria are provided, such as being a minor or having family in France (articles 7 to 17 of the regulations).

A. The prefecture determines which Member State is responsible for an asylum request

To do so, it consults:

• the visa information system (Visabio) to determine if you received a visa for another EU member state;
• the Eurodac file in which your fingerprints are recorded if they were taken in one of the 28 Member States of the EU or in 4 associated countries: Norway, Iceland, Switzerland and Lichtenstein.

The Eurodac file collects data on:

• asylum seekers (category 1 – fingerprints are kept for 10 years);
• persons apprehended while illegally crossing an external border (category 2 – fingerprints are kept for 18 months).

Persons who are illegally present on the territory of a member state (category 3) can also have their fingerprints checked and compared with the database, but their fingerprints will be destroyed after being compared.

B. The Dublin Procedure in action

If it is proven that you have traveled through another EU country, you are placed in the Dublin procedure; you will then attend an individual interview either with a translator or with a translator by telephone. The prefecture must provide you with a detailed report of the interview, as well as several information brochures in a language that you understand: one on the taking of fingerprints (brochure A1), one on the “Dublin” procedure (brochure B2) and one about the Eurodac regulations.

Even if it is not the country responsible for the asylum request, France still has the possibility to examine your request (see in particular article 17 of the regulation: discretionary provisions). This is why you must provide the prefecture with any information which could encourage the French authorities to examine your asylum application, such as:

• the legal presence in France of members of your family with residence permits, who are seeking asylum or who are protected;
• if you have health problems;
• if you are pregnant;
• if you have experienced ill treatment while in the EU country to which it is intended you return to.

C. Deadlines

During the “Dublin” procedure, France and the country responsible for your request have deadlines to respect (a time limit to contact the other country’s authorities and a time limit to answer).

* Category 1: fingerprints of all those who have applied for asylum in Member States.

** Category 2: fingerprints of people who have been apprehended while illegally crossing the external border of a Member State.

There is also a category 3: fingerprints of people who were staying illegally on the territory of a Member State, when the competent authorities consider it necessary to check the existence of any previous asylum application.

If you have not been transferred within 6 months after a country consented to taking responsibility for your claim (date stated on the transfer decision), France becomes the country responsible for your asylum request. You can check the end of this 6-month time limit on the “laissez-passer” the prefecture has given you. If you appealed against the transfer decision, the 6-months deadline starts over again at the date of notification of the court’s decision (see F. Appealing a transfer decision).

D. You are declared to be “on the run”

You will be declared on the run (“en fuite” in French) if you missed one or more appointments at the prefecture, the Ofii, with the police or at the airport. Recently, more and more people are said to be “on the run”.This happens as soon as the asylum application is submitted because the prefectures have been assigning more asylum seekers to house arrest, which implies asylum seekers are obliged to sign in regularly at a police station. In addition, the appointment letters for the prefectures are sometimes written in such frightening terms (“appointment at the expulsion office, come with your luggage, go to the border police office in order for execution of the transfer”) that asylum seekers are afraid to go...and are declared to be “on the run”.

If you are declared to be “on the run” and either you do not challenge this or you lose your court case, France will only become responsible for your asylum request 18 months later. Thus, you will have to wait 18 months to be able to apply for asylum again in France.

If you are declared to be “on the run” the Ofii will stop giving you the ADA allowance. Regarding accomodation, it depends on each housing center: some will try to keep you as long as possible and some will not hesitate to kick you out. After 18 months, you can return directly to the Guda to submit your asylum application in France. The Ofii may refuse to provide you with material reception conditions. In this case, contact an association to see if you can challenge this decision.

E. Consequences for your asylum request

During the entire time of the Dublin procedure:

• You cannot make an asylum request in France. The prefecture will provide you with a specific “Dublin procedure” asylum application certificate;
• You have the same rights as other asylum seekers (asylum seeker’s allowance, health insurance, schooling for your children, etc.). As for housing, you do not have the right to a place in a housing center for asylum seekers (Cada) but you can be hosted in another type of center (factsheet 2);
• You can be placed under “house arrest” ("assignation à résidence") during part of the procedure and even be placed in a detention center, before being sent to the country responsible for your asylum request. Detentions are more and more frequent, especially since the adoption of the March 20th 2018 law for a good application of the European asylum system” which legalizes detention for most people in the “Dublin” procedure, considering that there is a “non-negligible escape risk” justifying this placement.

F. Appealing a “Dublin” transfer decision

When the country responsible for you asylum request has given its approval, a transfer ruling is notified. You may contest this decision before the administrative court (this appeal suspends the transfer).

Pay close attention to the deadlines:

• You must present your case to the administrative court within 15 days of receiving the transfer decision.
• If you are placed in detention or house arrest you must bring your case before the court within 48 hours of receiving the transfer decision.

Before you go to court, you should contact a lawyer or an association that knows these procedures in order to assess how useful it would be. Certain procedural irregularities may lead the judge to void the transfer decision (for example if your right to be informed is not respected or if there is a translation problem).It is also possible to use substantive elements, for example if you have been mistreated in the country France wants to send you back to, or if the conditions of reception for refugees are bad in this country (failure of the state). Both of these types of arguments are important for challenging a transfer.

> For more information on challenging a transfer decision, consult the practical note on the Gisti website: L’accompagnement des demandeurs et demandeuses d’asile en procédure « Dublin » (Accompanying asylum seekers in the “Dublin” procedure).

Appealing is a double-edged sword. If you appeal a transfer decision, the 6-months time period to transfer you is not calculated starting from the answer of the country responsible for your asylum request, but from the notification of the final court ruling. Therefore, the 6-months time limit begins “all over again” starting from the date of notification of the court ruling. Thus, if the transfer decision was notified to you at the end of the “Dublin Procedure” (after the 4th or 5th month), France will have a new 6 months period to transfer you, starting from the notification of the decision.

If the judge annuls the decision on strictly procedural grounds (for example the obligation to inform was not respected), the prefect can take another transfer decision in due form. However, if the decision was annulled for substantive reasons (for example an error made by the administration that cannot be “repaired”, or if you have been subjected to mistreatment in the country responsible for your asylum application, or that country has no “capacity” to receive you – failed state) the prefecture cannot issue a new transfer order. Thus, if the judge has annulled the decision of transfer and made an injunction to the prefecture to register the asylum application, the prefecture will have to do so.

Thus, after a hearing, even if the court annulled the decision of transfer, it is better not to show up to your prefecture appointments, and to wait until the end of the initial period of 6 months before returning to the prefecture. In any case, you should consult an association or your lawyer before going to the prefecture.

If you had appointments scheduled for a transfer procedure, and if the order of transfer was annulled, you are not held legally to show up to those appointments. However, very often, if you do not show up to these appointments, the prefecture will declare you “on the run” and you will lose the ADA allowance (factsheet 2).

In case of an appeal of the court’s decision -either by the prefect or by you- the time period after which France becomes responsible for your asylum claim can not be extended. The prefecture must register your application,in the normal procedure by default.

If you wish to appeal the decision of the administrative court rejecting your request, you should know that judgment will take a long time. If you have the means to challenge this rejection, an appeal can be useful, in particular if you are later declared to be”on the run”.

G. Appealing a house arrest order

If you are placed under “house arrest” ("assignation à résidence"), you will usually have to go to a police station, often twice a week or more, to sign a register.

If you fear being arrested there, ask an association for advice before deciding to avoid the house arrest, because doing so could also have serious repercussions: being declared to be “on the run” and having to wait 18 months without any rights before being able to ask for asylum in France.

Appealing a “house arrest” decision will have the same consequences as appealing a transfer decision (the 6-month time period after which France becomes responsible for your request starts again from the date of the court’s decision).

>For the different practices in the prefectures of the Île-de-France region see here

H. Transferred persons who come back to France

If you come back to France after being transferred to another EU member state, different situations can occur:

• the prefecture refuses to register your asylum application. In that case, contact an association to take legal action against the refusal;
• the prefecture accepts to register your application but places you again in the “Dublin” procedure; it appears that prefectures have been encouraged to do this. It’s possible to explain to the prefecture that you were subject to an obligation to leave the territory of the country to which you were transferred, or explain that the authorities forced you to go back to France. If you have kept some documents proving this you must bring them (decision of the country asking you to leave their territory, photos of the mistreatment you were subject to, etc.). It can also be useful to bring documents proving that you have strong links to France; they can influence the prefecture’s decision. Try to go to the prefecture with a person who speaks French and who can explain your situation. It’s important to always keep a copy of your obligation to leave the territory of the country initially responsible for your request, because some prefectures keep this document. If the prefecture doesn’t take it into account, you will be able to produce this proof in front of the judge when you are appealing your transfer decision.
• the prefecture registers your asylum request but you are placed in the “fast-track” procedure (procédure accélérée) because you “failed to comply with the Dublin procedure”. In that case, contact an association to engage legal proceedings if, following this, the Ofii refuses to grant you the ADA allowance.
• finally, in the best-case scenario, the prefecture can register your asylum request in the normal procedure and hand you the Ofpra application file.

A criminal punishment which was already applied in other cases has just been extended to persons in the Dublin procedure (Ceseda, Art. L. 624-3): the court can sentence any person who has avoided or who has tried to avoid the execution of a transfer decision to three years’ imprisonment. This measure particularly targets persons who return to France after their transfer. Similarly, a transferred person who has re-entered France without authorization will be punished by three years’ imprisonment.