14 November 2018

Swapping asylum seekers, reuniting families? The counterpart of returns to Greece in accelerated procedure

Whereas the issue of transit zones and refusal of entry gained a lot of attention in the public and legal debates in Germany, the price that the German government pays for fast back-transfers is less discussed. It is indeed interesting to note, that the accelerated return of some to southern European countries could lead to the access to an asylum procedure in Germany for others. The bilateral agreement between Germany and Greece, which is in force since August this year, was finally published by PRO ASYL and Refugee Support Aegean on 01st November, after it was held secret by the respective governments. This blogpost aims to analyse the agreements regarding the family reunions under the Dublin Regulation III (DRIII) from Greece to Germany in Part II of the agreement.

I. Background

But let us start the story from the beginning:

This summer, an extensive debate took place in Germany on refusal of entry at the borders in order to reject asylum seekers access to German territory and/or transfer them back to the country, through which they entered the European Union first. Especially the approach to push back asylum seekers to Austria, is extremely criticised.

Angela Merkel did not want to act unilaterally and on the expense of other EU member states. Therefore, it was clear from a quite early state, that Germany had to give something in exchange for “getting rid” of a few asylum seekers caught in the border areas, more precisely the German-Austrian one.

II. Family unity as an object of exchange

Especially when transferring back asylum seekers to the country of first entry under Art. 13 DRIII, a possible object of exchange is obvious: in Greece, a high number of asylum seekers were awaiting their transfer to family members in Germany after an unlawful delay of transfers under the family unity provisions within the Dublin system (Art. 8-11, 16, 17 II DRIII), also caused by a German-Greek agreement. Additionally, an increasing number of take charge requests by the Greek Asylum Service to Germany based on those family unity provisions where rejected in 2018. These take-charge requests must be accepted by a member state before a transfer can be scheduled, both in cases of application of first entry principle (Art. 13 DRIII) as well as in cases of application of family unity provisions. Between January and September 2018, Germany only accepted about 38% of the take-charge requests by Greece, compared to 91% in 2017 (see the statistical data here).

III. Formal aspects of the trade

In order to trade back-transfers against accelerated and eventually even a higher number of family reunion transfers, a form must be chosen. Luckily, the Dublin framework suggests one, namely an administrative agreement, cf. Art. 36 DRIII. Such agreements can relate to liaison officers, a practice of members states to exchange officers between the Dublin Units as contact persons, currently there is one German liaison officer in the Greek Dublin Unit. They may also relate to the acceleration or simplification of the Dublin procedure. In the second case, the member states are obliged to consult the European Commission before concluding or amending such an agreement, cf. Art. 36 para 3 DRIII.

However, the agreement is explicitly – other than e.g. the agreement with Portugal – not concluded under Art. 36 DRIII. The German government argues, that due to the refusal of entry for those to be returned to Greece, the agreement does not affect the Dublin procedure, since the asylum seekers concerned do not enter German territory. The Greek Dublin Unit is also not part of the back transfers to Greece, cf. nr. 5 of the agreement.

As Hruschka convincingly points out regarding the first part of the agreement, the arrangements regarding accelerated returns to Greece circumvent the procedure and the legal safeguards provided for by the. Therefore, the agreements in the first part do not fulfil the requirements of Art. 36 DRIII and thus have no legal basis in the regulation.

However, the agreements on family reunions very obviously fall under Art. 36 DRIII. Therefore, not consulting the European Commission is to be seen as violation of the procedure foreseen in Art. 36 DRIII. The last time an agreement like this was conducted – less official regarding its form – the European Commission did not intervene and demand the compliance with the foreseen procedure.

IV. Agreements regarding family unity

The agreement addresses different problems regarding family reunion procedures from Greece to Germany.

Firstly, according to nr. 7 of the agreement, all asylum seekers in Greece that were accepted for family reunion before August 2018 shall be transferred within this year. This effects approx. 2000 asylum seekers, who`s transfers were pending. Normally, the transfers have to be carried out within 6 months upon acceptance by the receiving member state, cf. Art. 29 para 1 DRIII. Due to the administrative practice between Greece and Germany, this deadline was exceeded in the fast majority of cases since May 2017. This was found unlawful by several German courts, firstly by Administrative Court Wiesbaden. Before entry into force of the agreement, applicants with an acceptance of July 2017 were transferred, waiting twice as long than legally foreseen, including unaccompanied minors having to stay in dire conditions of Greek refugee camps. The question, what would happen if people cannot be transferred within this time frame – until the end of the year –, e.g. for logistic reasons, is not addressed. In nr. 7 it is also agreed, that Germany will answer all take charge requests that have not been examined within the foreseen two months deadline (Art. 22 para 1 DRIII). This is practically irrelevant, since allowing this deadline to elapse causes a so-called acceptance by default, cf. Art. 22 para 7 DRIII, which equals a normal acceptance and makes a further reaction unnecessary. Therefore, such cases occur rarely, since member states try to avoid this situation.

In nr. 8, the parties agreed on something overly simple: sticking to the time-limits provided by DRIII concerning all procedural steps: Take-Charge Request and Answer on it (Art. 21 para 1), Re-examination request and answer (Art. 5 para 2 Implementing Regulation) as well as the transfer itself (Art. 29 para 1 DRIII). From a legal viewpoint this agreement is redundant.

Thirdly, in nr. 9 of the agreement, Germany promised to re-examine all pending re-examination requests within two months. These requests are possible, in case of a rejection of the initial take charge request, cf. Art. 5 para 2 of the Dublin Implementing Regulation. Normally, they are to be answered within two weeks. However, the motivation of the German Dublin Unit seems less high to stick to this deadline compared to the deadline to answer the initial take charge request under Art. 22 para. 1 DRIII. The simple reason is, that the delay in answering a re-examination request does not cause an acceptance by default. It is interesting to note that Germany thereby admits to doing exactly what Greece is often accused of doing - namely not complying with the deadlines. Instead of the two weeks according to Art. 5 para 2 Implementing Regulation, now two months are granted to provide answers that are already outstanding. One could argue that this is not covered by Art. 36 DRIII, because deadlines are extended, not shortened. On the other hand, there may be disagreement because the deadlines do not originate from the Dublin III Regulation itself, but from the Implementing Regulation.

However, no agreement is reached on the substantive threshold for the answers to these pending re-examination requests. As often criticized, a lot of the rejections issued this year are unlawful and undermine the binding rules of family reunion laid down in Art. 8-11, 16 para 2 DRIII. A lot of re-examination requests also do not concern factual questions, but legal questions on the interpretation if the responsibility criteria and their relation to procedural issues like deadlines. If the current rigid interpretation by the German Dublin Unit is not given upon, the faster re-examinations will just lead to faster rejections.

Fourthly, Germany and Greece agreed, that the following documents will be accepted as proof of family bindings: ID documents, family booklets, birth/ marital status certificates and transcripts of interviews. However, this agreement doesn`t state, whether one of these documents is sufficient or several once in combination need to be submitted. Therefore, from a practical viewpoint, the actual threshold remains blurry. Again, this list is not really necessary, since Annex I of the Implementing Regulation already contains an extensive list of which kind of documents are to be considered as proof.

A crucial issue is the fifth agreement on family reunions in nr. 11: documents of currently pending re-examination requests can be submitted in their original language without translation. This issue is of high practical importance: the Greek Dublin Unit is quite small. The requirement of translating all documents was overwhelming and delaying a lot of procedures – now, mostly NGOs offering legal aid take over this job. Further, this requirement is not foreseen in the DRIII. Firstly, it conflicts with Art. 22 para 4 DRIII, stating that “the requirement of proof should not exceed what is necessary for the proper application of this Regulation”. The full translation of every single document submitted – medical reports, family books including family members that are not part of the current family reunion procedure – is obviously not needed to apply the regulation. Asking translated documents is not foreseen in the Implementing Regulation either. The exhaustive list of proof and circumstantial evidence in its Annex II intends to create legal certainty. Only a proof to the contrary can refute proof that was handed in, cf. Art. 22 para 3 DRIII. A proof to the contrary would be a translation by the receiving member state, proofing, that the document does not proof what it is supposed to. The mere wish to have documents already translated with the take charge request is not sufficient for a rejection.

Therefore, again, what is agreed on in nr. 11 is not a simplification, but a promise to stick to the foreseen threshold for proof. Unfortunately, this is only agreed on for pending re-examination requests, not future procedures.

Lastly, Greece agrees to pay all transfers. This is the countries obligation under Art. 30 DRIII, again a bilateral agreement on what is already valid European law. Greece did not always stick to the obligation in the last years, however not to the expense of Germany, but rather to the expense of the effected applicants, which had to pay for the transfers themselves. It should be noted, that currently transfers from Greece are partly “funded” by the EU Asylum, Migration and Integration Fund (AMIF)

V. A win for family unity?

It is indeed positive, that those waiting for months and years to be transferred to their family members are finally transferred to their family members in Germany. It is also positive, that Germany currently examines re-examination requests that were pending for months. Both is however to be seen as a return to law after breaking legal obligations instead of an acceleration or simplification of procedures.

Overall, the agreements on family reunions in the agreement are rather embarrassing from a legal viewpoint: all points agreed on are already foreseen by DRIII and its Implementing Regulation. The new challenge, the rigid practices of the German Dublin Unit since beginning of 2018, is not substantially addressed. Several questions remain open: what will happen to those “pending cases”, who are – for whichever reason – not transferred within 2018? Will Germany start applying Art. 29 para. 2 DRIII for these cases? Will Germany require translations for future take charge requests? What is the exact threshold to prove family bindings? Will Germany get back to a review of take-charge requests, that acknowledges the prior consideration that should be given to family life when applying DRIII according to its recital 14?

However, what actually happened in that agreement is, that the enforcement of already legally binding provisions protecting family unity is bartered against highly legally questionable return procedures using the fiction of refusal of entry to Germany`s territory at the German-Austrian border and undermining the Dublin Regulation III by denying its applicability. This is a novelty and a “success” for the German ministry. The price the German side had to pay was rather low, as the analysis of the agreement`s second part showed.

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