Patchy law and return practices in Europe: On vulnerable persons' human rights in the context of the present and future Dublin Regulation

Abstract

The Dublin Regulation is an EU instrument with the purpose of defining what State is responsible for an asylum application, and thereby ensuring applicants access to asylum procedures, however only in one State. This study investigates what international and regional human rights stipulations are particularly relevant to Dublin procedures and vulnerable applicants. The research question is subject to the limitation of focusing on persons perceived to be particularly vulnerable, an approach emphasised by the European Commission as central in the recast process of asylum instruments within the EU. The same can be said about human rights law, which installs particular safeguards for such groups. The study employs legal method to establish the relevant legal standards (de lege lata). It identifies stipulations in international law bearing on the situation of three groups of potentially vulnerable persons, including torture victims' right to rehabilitation, pregnant women's right to adequate treatment and unaccompanied minors' right to be treated in accordance with their best interest. These are specific obligations States have agreed to pursue, and must be actively assessed in cases under Dublin procedures. Three aspects of such applicants' situation are particularly relevant. Firstly, any connection the person has to a particular Member State, such as family, relatives or medical treatment. Secondly, the conditions waiting in the State found to be responsible, as regards both asylum procedures and living conditions. Thirdly, the person's ability to travel. On these three points, Member States must make sure applicants are not subjected to ill-treatment. Standards established in human rights law for vulnerable persons indicate that considerations of ill-treatment must be sensitive to the special needs of such individuals. While both case law from the European Court of Human Rights and suggested revisions of the Dublin Regulation designate a heightened concern for vulnerable groups, it is to be expected that the Council of the European Union will adopt a more restrictive position in the recast negotiations.