48 THE DUBLIN II TRAP TRANSFERS OF ASYLUM-SEEKERS TO GREECE ENDNOTES 1 Also known as the Dublin II Regulation, previously the Dublin Convention. Council Regulation No. 343/2003 of 18 February 2003. 2 Iceland, Norway and Switzerland are additionally parties to the Dublin Regulation. 3 The Dublin System is comprised of the Dublin Regulation and the EURODAC Regulation, which establishes a Europe-wide fingerprinting database for unauthorized entrants to the EU. Council Regulation No. 2725/2000 of 11 December 2000. 4 The principle of non-refoulement is the cornerstone of international refugee protection, and obliges states not to return anyone to a country where they would be at risk of serious human rights violations. 5 Indirect, or chain, refoulement can occur where there is no legal guarantee of refugee protection in the state the returned person would be sent to. It can also occur where, in practice, the asylum procedures of the state in question do not meet accepted standards with full procedural safeguards necessary to ensure correct decision-making, or if the state is known to be making incorrect decisions. 6 In February 2009 Finland resumed the returns, having halted transfers of asylum-seekers to Greece since June 2008. Prior to 3 March 2009, the Belgian Asylum and Migration authorities had asked for written guarantees from the Greek authorities before transferring asylumseekers to Greece that the person concerned would have the opportunity to apply for asylum upon their return if they wished to do so. After that date the Belgian authorities stopped requesting such guarantees, and explained to Amnesty International that the guarantees were no longer needed because Greece had implemented the EU legislation on asylum matters (letter from the Minister of Migration and Asylum affairs to the Belgian (Flemish) Section of Amnesty International, 16 July 2009). On 7 May 2009 the Norwegian Immigration Appeals Board resumed conditional returns to Greece, having temporarily halted them in February 2008 to gather further information about possible violations of the rights of asylum-seekers. Henceforth the Appeals Board will determine in each case whether or not return to Greece is appropriate, taking into particular account the asylum-seeker’s vulnerability (Conditional returns to Greece, www.cisionwire.com/utlendingsnemnda/conditional-returns-to-greece). In the Netherlands the transfers had been halted by Dutch courts, which expressed their concern about the Greek asylum procedure. At the end of 2008, however, the Council of State ruled that a Somali asylum-seeker could be transferred to Greece, since there were no concrete indications that she would be refouled from Greece (Council of State, Ruling No. 200805917/1, 29 December 2008). On 28 May 2009 the Dutch State Secretary for Justice announced that the Netherlands would resume Dublin transfers to Greece. On 23 June 2009 the Minister of Justice informed the House of Representatives of the Dutch Parliament that there are agreements between the Dutch and the Greek authorities with regard to the transfer of asylum-seekers. According to these agreements, the Greek authorities are informed with at least 10 days’ notice of the transfer of asylum-seekers; no more than 40 asylum-seekers are transferred within one week; and a Dutch official will be present during the transfer. Moreover, it is ensured that the asylum-seeker can file an asylum claim at the airport. 7 Letter of Amnesty International, EU Office, to the President of the JHA Council of 28 March 2008, http://www.amnestyeu.org/static/documents/2008/Greece_Dublin_March_2008_logo.pdf; and Norway, Amnesty International Submission to the UN Universal Periodic Review, (EUR 36/001/2009), p. 8. 8 Article 3.2 of the Dublin Regulation: “By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.” 9 UNHCR, Position on the return of asylum-seekers to Greece under the Dublin Regulation, 15 April 2008. UNHCR, Observations on Greece as a country of asylum, December 2009, p. 21. 10 Ibid, p.19. 11 As contained in Article 33(1) of the Refugee Convention, Article 7 of the ICCPR, Article 3 of the Convention against Torture and Article 3 of the ECHR. 12 This includes individuals on the state’s land territory, at its borders and extra-territorially where jurisdiction is established. Extraterritorial jurisdiction can be established where a state exercises power or effective control over individuals or an area. 13 Ministry of Citizens’ Protection, Hellenic Police www.astynomia.gr/images/stories/DOCS2/191108%20Stat_asyl%208mhnou%202007%20.pdf 14 Ministry of Citizens’ Protection, Hellenic Police www.astynomia.gr/images/stories/DOCS2/250209statAsylou2008.pdf Amnesty International March 2010 Index: EUR 25/001/2010