Regulation (EC) No 343/2003, as a Regulation, is directly applicable. It has been given domestic effect through the Refugee Act 1996 (Section 22) Order 2003 (SI 423 of 2003) and Section 22 of the Refugee Act 1996, as amended. Previously, the criteria and mechanisms for determining the Member State responsible for examining an asylum application were determined pursuant to the Dublin Convention named for the location of its signing. The Regulation is applicable in all Member States, as well as Norway, Iceland and Switzerland.
This Regulation creates a system designed to determine, and lays down criteria and mechanisms for determining, the Member State responsible for determining an applicant’s refugee status. It allows for the transfer of an asylum applicant in a Member State to another participating State deemed responsible for processing the applicant’s asylum claim by virtue of its being the first country in the common area in which the applicant arrived as a refugee.
The Regulation requires Member States to examine the application of any alien, for which they are responsible in accordance with a set of criteria in strict hierarchy on the basis of the situation at the time when an asylum seeker first lodged his application with a Member State.
The criteria for designating the responsible Member State may be summarised as follows:
(a) The Member State where an unaccompanied minor applicant has a family member legally present.
(b) The Member State where an applicant has a family member resident as a refugee.
(c) The Member State where an applicant has a family member awaiting a first-instance asylum decision.
(d) The Member State that issued an applicant with a residence document.
(e) The Member State entered irregularly by an applicant.
(f) The Member State that allowed an applicant to enter without a visa.
(g) The Member State where an applicant applied for asylum in an international transit area.
(h) The Member State where the first asylum application was lodged.
(i) The Member State responsible for the largest number of an applicant’s family members, where the above criteria would result in the family being separated.
The Regulation contains a “sovereignty clause” which gives Member States discretion to examine an asylum application even if it is not responsible for the examination. The Regulation also contains a “humanitarian clause” which gives Member States discretion to examine an asylum application at the request of another Member State, and bring together family members and other dependant relatives.
The Member State responsible for examining an application is obliged to “take charge” of an asylum seeker who has lodged an application in a different Member State, and complete the examination of the asylum application, and is obliged to “take back” an applicant whose application is under examination and who is in another Member State without permission, an applicant who has withdrawn the first application and made an application in another Member State, and an applicant whose application it has rejected. These obligations cease where the applicant has left the Member States for three months or more.
Where a Member State believes another Member State is responsible for examining an application, and wants that State to take responsibility, it must request that State to take charge of the applicant within three months of the (later) application. The requested Member State is obliged to make a decision on a request to take charge of an applicant within two months of a “take charge” request, and within one month of a “take back” request. Transfer of an applicant to the Member State responsible is required to take place within six months of acceptance of the take-charge request, such time being extendable to one year where the applicant is imprisoned, or eighteen months where the applicant absconds.
The Regulation also attributes responsibility for examining an asylum application to the Member State that played the most important part in the applicant’s entry or residence in the Union. The Regulation requires the Member State responsible for an asylum applicant to take charge of the applicant throughout the asylum process, and to take back an applicant who is illegally in another Member State.