The partner to the Article 17(1) discretionary clause, the humanitarian clause, allows a Member State to request another Member State other than the one responsible to take on responsibility for assessing a claim for humanitarian reasons, particularly family or ‘cultural’
grounds.
4.6.1 Use in practice
Article 17(2) appears to follow similar patterns with Article 17(1) and is not frequently used.
Authorities in most Member States reported they had not or only rarely encountered Article 17(2) cases (BR, CY, EE, ES, HR, HU, IE IT, NL, RO, SE, SI, CH, NO). Austrian authorities
18 March 2016 36
reported only using Article 17(2) 14 times between January 2014 and October 2015, and Spanish authorities reported only receiving such cases eight times in 2014. Greece was, however, an exception. Authorities there reported submitting Article 17(2) requests relatively frequently for two reasons: first to address family reunification cases that otherwise would not be covered by the definition of family, and secondly when the deadline for submitting a request through normal channels has passed.
Other Member States also indicate primarily using Article 17(2) for cases with particularly serious medical concerns (CZ).
4.6.2 Challenges
As with Article 17(1), Member States reported few issues in implementing Article 17(2) in cases where it is used (although the very infrequent use of the article may itself be seen as reflecting other implicit obstacles to implementation). Not all the requests made on humanitarian grounds have been successful, according to estimates reported by Member State authorities. While Bulgaria, Romania and Sweden reported that Article 17(2) requests are almost always accepted, Greek and Czech Republic authorities complained that requests sent by them are rarely accepted due to disagreements on what constitutes a humanitarian need and whether the article should in fact be used for purposes of family reunification. Similarly, Dutch authorities indicated they are reluctant to accept Article 17(2) requests and only do so in exceptional circumstance and with clear proof of a substantial impact on the applicant. Poland only accepts cases based on family unity, and does not consider ‘cultural links’. Norwegian authorities stated that they normally do not accept Article 17(2) requests because they want to ‘avoid people who want to bypass regular migration procedures’. Similarly, German authorities stated they felt the clause was used ‘politically’ by those Member States who apply it often.
According to Greek authorities, one significant challenge to Article 17(2) is that Member States have a different understanding of what constitutes humanitarian reasons for a transfer. While Greece interprets the article as incorporating family reunification cases that do not fall within the criteria elsewhere in the Regulation, other Member States disagree and sometimes even ask for evidence of dependency, even though this is not required for Article 17(2). Czech Republic authorities stated that when they have used the article, other Member States have denied the request on the bases that the humanitarian grounds were not considered to be serious enough.
As with the family criteria, evidence of family connections has been raised as an issue. Irish authorities stated they would normally require a marriage certificate to prove a marital relationship, but this often is not provided.
One problem facing Article 17(2) may therefore be a divergent understanding among Member States of the goals of the article, as each Member State appears to approach it with a different understanding of its purpose. There also seems to be a lack of willingness on the part of some Member States to take on or consider Article 17(2) and to instead interpret its provisions narrowly.
18 March 2016 37
5 Procedures for submitting take charge/take back requests
This section reviews the procedures for submitting and replying to take charge and take back requests. It begins with a statistical overview of the number of take charge and take back requests made by Member States, and of the number of take charge and take back requests accepted and rejected. The section then provides an article-by-article overview, in order to analyse the following aspects in relation to both take charge and take back requests:
■ Whether the respective time limits to submit and reply to these requests are appropriate (including the new time limits introduced in the Dublin III Regulation for submitting a take back request);
■ The frequency with which Member States fail to make the requests within the stipulated timelines and the reasons for this;
■ How often Member States reply to requests more quickly than what is allowed, and how often Member States ask for urgent replies (in respect of take charge requests);
■ How often requests are tacitly accepted as a result of the failure to reply on time, and the main reasons for this;
■ The type of proof that Member States usually send with the requests, and the type of proof that is deemed necessary by Member States in order to accept the requests; and
■ The main reasons for Member States to refuse requests.
Procedures for implementing transfers across Member States, and information collected on the rate of transfers, are reviewed in Section 6.
5.1 Statistical overview
5.1.1 Number of take charge and take back requests made
The number of take back requests made by Member States is significantly higher than the number of take charge requests. On average, between 2008 and 2014, 72% of outgoing Dublin requests were take back requests against 28% of outgoing take charge requests.
Similarly, 74 % of incoming Dublin requests were take back requests compared to 26 % of take charge incoming requests31.
31 Eurostat collects the number of take charge and take back made by Member States (i.e. outgoing requests) and the number of take charge and take back requests received by Member States (i.e. incoming requests).
Whilst in principle outgoing and incoming requests should be expected to match each other, in practice they do not (with incoming requests showing significantly lower values). This discrepancy is likely to result from a combination of factors, including under-reporting and delays in reporting on the part of receiving Member States.
18 March 2016 38
Figure 5.1 Total number of take charge and take back requests in all Member States, 2008–2014:
Outgoing requests
Source: Eurostat data migr_dubri and migr_dubro. Data were extracted between the 12th and 18th October 2015.
Figure 5.2 Total number of take charge and take back requests in all Member States, 2008–2014:
Incoming requests
Source: Eurostat data migr_dubri and migr_dubro. Data were extracted between the 12th and 18th October 2015.
18 March 2016 39
Note: Data from countries with usually significant Dublin statistics were missing for 2014, i.e. Italy, Poland and Spain. Consequently, ICF estimated the values of incoming/outgoing requests to/from Italy, Poland and Spain for 2014 and these estimates have been included in the charts. ICF estimates could not distinguish between take back and take charge for the incoming and outgoing requests for Italy, Spain and Poland in 2014.
At Member State level, incoming take back requests in 2014 were much higher in most countries than incoming take charge requests. They were far higher in Belgium (91 %), Sweden (86 %), Switzerland (85 %) and Germany (75 %). On the other hand, Estonia, Spain and Portugal received more incoming take charge requests than incoming take back requests, 84 %, 74 % (in 2013) and 54 % respectively of their total incoming requests.
Similarly, the number of outgoing take back requests in 2014 was also higher in most Member States than the number of outgoing take charge requests. For instance, in 2013, take back requests were far higher than take charge requests in Italy (93 %), Spain (90 %) and Portugal (83 %). In contrast, Switzerland had a higher ratio of outgoing take charge requests than outgoing take back requests (71 % being take charge in 2014).
Figure 5.3 Total number of take back and take charge requests in selected Member States
Source: Eurostat data Nb requests. Data were extracted between the 12th and 18th October 2015.
5.1.2 Number of take charge and take back requests accepted and rejected
As indicated in Figure 5.4, between 2008 and 2014, a larger number of take charge and take back requests were accepted (plain lines) than rejected (dashed lines). However, since 2013 this trend has begun to reverse. The number of decisions accepted on outgoing requests decreased between 2013 and 2014 and there was only a small increase of incoming requests that were accepted. In addition, there was a sharp increase of both incoming and outgoing requests that were rejected between 2013 and 2014.
18 March 2016 40
Figure 5.4 Accepted and rejected decisions on incoming and outgoing requests in all Member States, between 2008 and 2014
Source: Eurostat data migr_dubri, migr_dubro and migr_dubdi, migr_dubdo and ICF estimates for IT, ES and PL in 2014. Data were extracted between the 12th and 18th October 2015.