357Responsibility for applications 5.8. Responsibility for applications on responsibility for asylum applications were first of all set out in Schengen Convention and the Dublin Convention of the same year.r" were subsequently replaced by the Dublin II Regulation, as from 2003,443 as supplemented by the Eurodac Regulation, adopted in 2000 from January 2003. 444 The Commission has released one report on nu: L 11.11. For the current practice ofMember States as regards the time required to make u.ccrs.n.nrx see Annex 23 to the 2009 impact assessment. Art 27(6) (current Art 23(4)). The new Art 27(9) would provide for cases which could the application of an accelerated procedure. 436 New Art 30. 32(1)(b) and revised Art 32(2)(c) (current Art 27(3)(c)). 33 (current Art 30). ,,,,,un't> 35 and 36 (current Arts 32 and 34); the current Art 33 would be repealed. 37 (current Art 35); the current Art 35(2) and (3) would be repealed. 41 (current Art 39). 442 See 5.8.1 below. 443 See 5.8.2 below. of fact and law'.434 The list of circumstances in which Member States can accelerated procedures would be cut from fifteen cases to just six.435 rules on inadmissible cases would include a new provision requiring a spebefore ruling a case inadmissible.t'" As for the 'safe third country' it would be revised to require Member States to assess the risk of'serious in the relevant third State and to allow the applicant to challenge both the esumntion of safety and of the connection with the third State concerned.i" country of origin' rules would be amended to delete the possibility of only part ofa country as safe and to repeal the option for Member States pre-existing lower standards on this issue.t" Furthermore, the standards to repeat applications would also be modestly raised.i" and the derogarelatmz to border procedures would be deleted."!" as regards the issue of remedies, the proposal would require Member let applicants stay on the territory as a general rule, and would require of the merits as well as the laW.441 Directive is very welcome inasmuch as it addresses a large majorcriticisms of the existing Directive, as regards in particular territorial to procedures, extradition, the supremacy of refugee law, personal legal aid and assistance, time limits, accelerated procedures, safe third safe countries oforigin, and remedies. It is unfortunate, however, that G~)ll1mjission has not proposed an absolute time limit on detention (which obviouslv match the time limit for taking a decision on an application, at latest), or proposed the abolition of the 'super-safe countries' rule. Asylum356 417 Revised Art 3(1). 41H Revised Art 4(1) and (2). 419 Revised Art 6. 420 New Art 7. 421 Revised Art 8(2) (current Art 7(2)). 422 New Art 423 New Art 9(2). See also the new Art 41(2), which would permit a person protection to appeal the decision to refuse refugee status. 424 Revised Art 9(3) and (5) (current Art 8(2) and (4)). 425 Revised Art 13(2) (current Art 12(2)). 426 Revised Art 14(3) (current 427 New Art 15. 428 New Art 16, replacing current Art 14. 429 Revised Art 18 (current Art 15). 4.;0 Revised Art 19 (current Art 16). 431 New Art 20. m Revised Art 21 (current Art 17). 433 Revised Art 24 (current Art 20). The territorial scope of the Directive would now expressly include States' territorial waters,"? although arguably the 2005 Directive already such applications, since territorial waters form part of a Member State's territor There would be new provisions requiring Member States to ensure that they h4\T sufficient numbers ofstaffto process asylum applications, along with relevant st4 training.'!" There would be more precise rules on access to the asylum proceduretj including at border crossing points.f" The Directive would now expressly r11 out extradition to the applicant's country of origin during the asylum process and would explicitly set out standards which would apply before extradition any other third state.422 A new provision would explicitly address the issue hierarchy between claims for refugee status and subsidiary protection, requirip, Member States' authorities to examine the former claim first. 423 There wO also be new rules on translation of documents, obtaining information from European Asylum Support Office, the use of expert advice, and disclosingin mation used to the applicant's lawyer.P" The rules on personal interviews would be improved by deleting them problematic exceptions from the obligation to hold such interviews,42'; improving the standards relating to personal interviews.v" by adding detai provisions on the content of interviews to the Directive.?" and by amendi the rules on transcripts and reports of the interviews.i" Equally, the right legal aid and assistance would be enhanced, by deleting the most problem exceptions to this right and extending the scope of the right to all stages of procedure.!" The legal adviser would have enhanced access to informati and would also be able to attend the personal interview.v'? There would.h new provision concerning applicants with special needs,":'! along with hi standards for unaccompanied minors.P'' The rules on withdrawal of app# tions would be amended modestly to reduce divergences between MGlll States.P'' As for procedures at first instance, the proposal would require Member-S to conclude examinations ofapplications within six months, with a possibl ther extension for six months if necessary 'in individual cases involviriz 5.8.1. The Schengen Convention and the Dublin Convention 359Responsibility for applications Member State in which an application is made in an airport transit zone;455 or default, the Member State in which the application is made.!" 456 Art 8. 457 Art 3(5). 458 Respectively Arts 3(4) and 9. .espectively Arts 10-15. 1/97 and 2/97 ([1997] OJ L 281/1 and 26); Decision 1/98 ([1998] OJ L 196/49); and ([2000] OJ L 281/1). On implementation of the Convention up to 1998, see the book, at 114-116. Convention, see C Marinho, ed, The Dublin Convention 011 Asylum (ElPA, 2000); and C Thiery, 'Schengen II and Dublin: Responsibility for Asylum Applications in 34 CMLRev 957; A Hurwitz, 'The 1990 Dublin Couvention: A Comprehensive (1999) URL 646; and S Da Lomba, The Right to Seek Refugee Status ill the European Union 117-131. are for 1998-99, and were taken from the Commission evaluation of the (2001) 756, 12June 2001, p. 2). 371,680 asylum applications, 15,776 outgoing requests under the Convention and acceptances of those requests. The statistics do not indicate what percentage ofasylum seeksubsequently transferred. These statistics are taken from the Commission annual report on statistics: . The Dublin Convention was replaced as from 1 September 2003 by Kt~l!ll14l 343/2003, known in practice as the 'Dublin II' Regulation.t'" This set out certain additions and amendments to the hierarchy ofcriteria for bility in the Convention along with an acceleration ofthe procedure for ring asylum seekers between States, and has been implemented by a ~\JHJ14",,, Regulation, pursuant to powers which the Regulation conferred Commission to adopt implementing measures.v" The Regulation Member States free to decide that a non-Member State should take responsi ity, or to take responsibility even where the Regulation does not It has been amended once, in order to change the rules relating to the ofimplementing measures."? As noted above, in 2007 the Commission a report on the operation of the 'Dublin system',468 which is considered below. As for the Court of]ustice, the Commission brought one infringement against a Member State (Greece) for incorrect application of the ~,\.",\"", because Greece refused to consider the merits of asylum applications by persons who had initially made applications there, made later applicatio other Member States, and then were transferred back to Greece, on that the applications had been withdrawn."? In fact, because of concerns 'very low material reception standards', the Commission has reported four Member States have refused to return asylum seekers to Greece fact that Greece is responsible for processing their claim'i'?" The Court has also received one reference from a national court on the interpretation Regulation.V' and two national courts have agreed to send further concerning the validity of transfers of asylum seekers to Greece.f" In common with the Dublin Convention, the Regulation still States free to decide that a non-Member State should take responsibility, 360 5.8.2. The 'Dublin 11' Regulation 361Responsibility for applications ts)(2) and 15 of the Regulation. .• See now the action plan on unaccompanied minors (COM (2010) 213, 6 May 2010). 7. 476 Art 8. m Art 9. 767/200S, [200SJ OJ L 21S/60, Art 21. See further 4.S above. 10(1). 480 See 5.8.3 below. 4R1 Art 10(2). 482 Art 11. 483 Art 12. 13. 485 Art 14. 486 Art 15. DOllsilJility even where the Regulation does not require it.473 The first criterion sponsibility is now the new criterion relating to unaccompanied minors; the ber State responsible for them is the Member State where a family member take care of them, or failing that the Member State where they lodged their ication.t" The second criterion, family reunion with recognized refugees, was anged from the Dublin Convention.f" The third criterion is new: a Member is responsible for the family members of an asylum seeker if the latter is still 'ug for a decision on the substance of the application in that Member Srate.f" he second criterion in the Convention rules (issue of a visa or a residence it) became the fourth criterion in the Regulation, but it was not significantly ged in substance."? It should be noted that the Visa Information System, once ational, will be used in order to check more effectively whether a visa has been dto an asylum seeker.!" The third criterion in the Convention (crossing the er irregularly) became the fifth criterion in the Regulation, but responsibil- 9vv terminates after twelve months."? In order to enforce this provision, the dac Regulation requires Member States to take fingerprints of persons who pped crossing the external borders irregularly."? Also, a further new proviecifies that ifa Member State cannot or can no longer be held responsible on dsof irregular border crossing, another Member State will become responif a person has resided there, having initially entered irregularly, for more five months.r" The political context ofthis provision was the settlement ofa tebetween the UK and France concerning asylum seekers residing in France ha attracted little or no interest from the French authorities, who frequently pted to enter the UK. Next, the sixth criterion (formerly the fourth) is the sponsible for controlling the entry ofa non-visa national, with the wording Dublin Convention rules in effect retained.i'" The seventh criterion (forthe-fifth) is the Member State where the asylum seeker applied for asylum airport transit zone.t'" Finally, as before, the default criterion is the Member here the asylum seeker submitted his or her application.t'" e is a new 'tie-break' clause in the event of family members submitting 'cation in the same Member State close together.i'" but no such clause to the position where the family members submit applications in different EStates. The old 'humanitarian' clause was retained and expanded, now g. on family reunion alone.t" Although this clause remains optional for er States, it might well be possible in national law to argue about how the ides have exercised their discretion. Asylum 464 12003J L 50/1; see Art 29 on the date ofapplication. On the Regulation, see: S Right to Seek Refugee Status in the European Union (Intersentia, 2004), 131-141; A Nicol, Convention to Dublin Regulation: A Progressive Move?', in A Baldaccini, E Guild, eds, Whose Freedom, Security and]ustice? EU Immigration and Asylum Law and Policy and H Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006), 465 Reg 1560!2003, [2003J OJ L 222/3. 466 Arts 3(2) and 15 of the Regulation. 467 Reg 1103!200S ([200SJ L 304/S0), changing the rules to apply the 'regulatory scrutiny' for the adoption of implementing measures. See further 2.2.2.1 above. 4(,H COM (2007) 299, 6 June 2007. "" Case C-130/0S Commission v Greece. See now the proposal for a revised Regulation, addresses this issue (5.S.4 below). On the concept of withdrawn applications, procedures Directive, discussed in 5.7 above. 470 See the impact assessment for the proposed reception conditions Dir (SEC 2008, pIS). 47i Case C-19/0S Petrosian m Saeedi (a UK reference) and Edris and others (an Irish reference). For a practice on this issue, see: . The Dublin Convention was replaced as from 1 September 2003 by Kt~l!ll14l 343/2003, known in practice as the 'Dublin II' Regulation.t'" This set out certain additions and amendments to the hierarchy ofcriteria for bility in the Convention along with an acceleration ofthe procedure for ring asylum seekers between States, and has been implemented by a ~\JHJ14",,, Regulation, pursuant to powers which the Regulation conferred Commission to adopt implementing measures.v" The Regulation Member States free to decide that a non-Member State should take responsi ity, or to take responsibility even where the Regulation does not It has been amended once, in order to change the rules relating to the ofimplementing measures."? As noted above, in 2007 the Commission a report on the operation of the 'Dublin system',468 which is considered below. As for the Court of]ustice, the Commission brought one infringement against a Member State (Greece) for incorrect application of the ~,\.",\"", because Greece refused to consider the merits of asylum applications by persons who had initially made applications there, made later applicatio other Member States, and then were transferred back to Greece, on that the applications had been withdrawn."? In fact, because of concerns 'very low material reception standards', the Commission has reported four Member States have refused to return asylum seekers to Greece fact that Greece is responsible for processing their claim'i'?" The Court has also received one reference from a national court on the interpretation Regulation.V' and two national courts have agreed to send further concerning the validity of transfers of asylum seekers to Greece.f" In common with the Dublin Convention, the Regulation still States free to decide that a non-Member State should take responsibility, 360 4R7 Arts 16-23. 488 Art 20(1)(e). 489 See the judgment in Petrosian 490 COM (2007) 299 and SEC (2007) 742, 6 June 2007. 363Responsibility for applications urodac Regulation was adopted in December 2000,492 and took effect on llary 2003, when Eurodac began operations following the satisfaction of ex technical requirements by the Commission and the Member States."? Id be noted that the Commission's operational management of Eurodac ill future be transferred to a new agency responsible for EU JHA database l;SlUt:Ill, if the Commission's proposal to this end is adopted.v" ~"'h,uaL'VU requires fingerprints of all asylum seekers over fourteen to transmitted to a 'Central Unit' which compares them with other previously (and subsequently) transmitted to see whether the asylum multiple applications in the EU.495 Similarly, Member States the fingerprints of all third-country nationals who cross a border 496 and transmit them to the Central Unit to check against fingerprints 27:25/2000. [2000] OJ L 316/1. On the Regulation, see E Brouwer, 'Eurodac: Its and Limitations' (2002) 4 EJML 231. 27(2) and the Communication on start of operations ([2003] OJ C 512). (2009) 293, 24 June 2009; revised: COM (2010) 93, 19 Mar 2010. II (Arts 4-7). Rather dubiously, this concept is extended in an unpublished statement in the Council minutes where a third-country national 'is apprehended beyond the external border, where en route and there is no doubt that he/she crossed the external border irregularly' 12314/00 Add 1, 15 Nov 2000). altered the situation profoundly. Yet, as we shall see, the Commission's proposal to amend the Dublin system tries to improve it, rather than row it. rom a human rights perspective, there was some improvement in the ulation as regards the issue of family reunion, although with a narrow defiof 'family' in the Regulation and the limitation of reunion to certain (leaving out, for instance reunion with an irregularly resident family er, a family member enjoying or applying for subsidiary protection, or a member with legal residence on other grounds) many families could still arated by the revised rules. It is arguable that the fundamental objection to ting responsibility for asylum claims in the absence ofa common definition eGeneva Convention should have been overcome after the qualification tive took effect, from October 2006-although it has transpired that in ice there is still great divergence in Member States' asylum law, in spite of atter Directive.'?' In any case, the negative impact ofthe Dublin Convention sregards the destruction of documents by asylum seekers was not reduced lieiRegulation. Asylum362 The procedural rules and provisions on administrative amended, in particular to accelerate the transfer ofasylum seekers and to some of the details of the previous implementing measures in the Regulation (with the result that the Commission cannot amend those via means of a 'cornitology' procedurej.f" The suspensive effect of against the application of the Regulation is permitted on a case-nv-case although it is only optional for Member States.t" According to the Justice, the time limit of six months to take an asylum seeker back tonowms agreement to do so by a Member State only starts to run from the court decision on a challenge to a transfer decision, not from the date a court or tribunal suspended that transfer pending its judgment.t'" As for the implementation ofthe Regulation,"? the Commission's indicates that over 2003-05, the number ofasylum applications subject to apply the Dublin II rules rose to 11.5%, as compared to 6% for Convention. The acceptance rate of transfers was similar (72%) and transfers carried out rose to 52%, although the Commission still considered disappointing. Overall 4.1% of asylum seekers were transferred also a rise compared to the previous period, but still quite a modest of the overall number of asylum seekers. The Commission did not reasons why such a low percentage of asylum seekers was still covered Dublin rules, given that the Eurodac system had started operations had been enlarged in the meantime. On the criteria in the Dublin rules, the Commission reported panied minors made up perhaps 1-2% ofrequests; the family members' were 'rarely applied' due to evidence problems; the criteria regarding residence permits were 'applied frequently', particularly as regards 6-20% ofrequests); the requests for the application ofthe irregular 'far exceed transfers', because ofthe low rate offingerprinting under system (see below) and the difficulty proving irregular entry without the 'illegal stay' criterion was 'less often' used, again due to evidence and the 'legal entry' criterion made up only a 'small proportion' failure to carry out halfofthe agreed transfers was due to asylum ing (the evidence that detention was necessary to avoid this was IllJ.Xt:Uj, pensive effect of an appeal (although few Member States allowed humanitarian reasons, or voluntary return to the country of origin. This evidence suggests that the Dublin rules remain an expensrve time, ultimately still applying to only a small percentage of asylum imposing an extra cost on top ofthe cost ofconsidering each asylum The application of the Eurodac system and the increase in EU 4R7 Arts 16-23. 488 Art 20(1)(e). 489 See the judgment in Petrosian 490 COM (2007) 299 and SEC (2007) 742, 6 June 2007. 363Responsibility for applications urodac Regulation was adopted in December 2000,492 and took effect on llary 2003, when Eurodac began operations following the satisfaction of ex technical requirements by the Commission and the Member States."? Id be noted that the Commission's operational management of Eurodac ill future be transferred to a new agency responsible for EU JHA database l;SlUt:Ill, if the Commission's proposal to this end is adopted.v" ~"'h,uaL'VU requires fingerprints of all asylum seekers over fourteen to transmitted to a 'Central Unit' which compares them with other previously (and subsequently) transmitted to see whether the asylum multiple applications in the EU.495 Similarly, Member States the fingerprints of all third-country nationals who cross a border 496 and transmit them to the Central Unit to check against fingerprints 27:25/2000. [2000] OJ L 316/1. On the Regulation, see E Brouwer, 'Eurodac: Its and Limitations' (2002) 4 EJML 231. 27(2) and the Communication on start of operations ([2003] OJ C 512). (2009) 293, 24 June 2009; revised: COM (2010) 93, 19 Mar 2010. II (Arts 4-7). Rather dubiously, this concept is extended in an unpublished statement in the Council minutes where a third-country national 'is apprehended beyond the external border, where en route and there is no doubt that he/she crossed the external border irregularly' 12314/00 Add 1, 15 Nov 2000). altered the situation profoundly. Yet, as we shall see, the Commission's proposal to amend the Dublin system tries to improve it, rather than row it. rom a human rights perspective, there was some improvement in the ulation as regards the issue of family reunion, although with a narrow defiof 'family' in the Regulation and the limitation of reunion to certain (leaving out, for instance reunion with an irregularly resident family er, a family member enjoying or applying for subsidiary protection, or a member with legal residence on other grounds) many families could still arated by the revised rules. It is arguable that the fundamental objection to ting responsibility for asylum claims in the absence ofa common definition eGeneva Convention should have been overcome after the qualification tive took effect, from October 2006-although it has transpired that in ice there is still great divergence in Member States' asylum law, in spite of atter Directive.'?' In any case, the negative impact ofthe Dublin Convention sregards the destruction of documents by asylum seekers was not reduced lieiRegulation. Asylum362 The procedural rules and provisions on administrative amended, in particular to accelerate the transfer ofasylum seekers and to some of the details of the previous implementing measures in the Regulation (with the result that the Commission cannot amend those via means of a 'cornitology' procedurej.f" The suspensive effect of against the application of the Regulation is permitted on a case-nv-case although it is only optional for Member States.t" According to the Justice, the time limit of six months to take an asylum seeker back tonowms agreement to do so by a Member State only starts to run from the court decision on a challenge to a transfer decision, not from the date a court or tribunal suspended that transfer pending its judgment.t'" As for the implementation ofthe Regulation,"? the Commission's indicates that over 2003-05, the number ofasylum applications subject to apply the Dublin II rules rose to 11.5%, as compared to 6% for Convention. The acceptance rate of transfers was similar (72%) and transfers carried out rose to 52%, although the Commission still considered disappointing. Overall 4.1% of asylum seekers were transferred also a rise compared to the previous period, but still quite a modest of the overall number of asylum seekers. The Commission did not reasons why such a low percentage of asylum seekers was still covered Dublin rules, given that the Eurodac system had started operations had been enlarged in the meantime. On the criteria in the Dublin rules, the Commission reported panied minors made up perhaps 1-2% ofrequests; the family members' were 'rarely applied' due to evidence problems; the criteria regarding residence permits were 'applied frequently', particularly as regards 6-20% ofrequests); the requests for the application ofthe irregular 'far exceed transfers', because ofthe low rate offingerprinting under system (see below) and the difficulty proving irregular entry without the 'illegal stay' criterion was 'less often' used, again due to evidence and the 'legal entry' criterion made up only a 'small proportion' failure to carry out halfofthe agreed transfers was due to asylum ing (the evidence that detention was necessary to avoid this was IllJ.Xt:Uj, pensive effect of an appeal (although few Member States allowed humanitarian reasons, or voluntary return to the country of origin. This evidence suggests that the Dublin rules remain an expensrve time, ultimately still applying to only a small percentage of asylum imposing an extra cost on top ofthe cost ofconsidering each asylum The application of the Eurodac system and the increase in EU 365Responsibility for applications from irregular residents. In 2005, there were 258,684 sets of fin- 187,223 from asylum seekers, 25,162 from irregular border-crossers, 46,299 from irregular residents. In 2006, there were 270,611 sets of fingerts: 165,958 from asylum seekers, 41,312 from irregular border-crossers, and 341 from irregular residents. In 2007, there were 300,018 sets offingerprints: ,284 from asylum seekers, 38,173 from irregular border-crossers, and 64,561 rnirregular residents. In 2008, there were 357,421 sets offingerprints: 219,557 Illiasylum seekers, 61,945 from irregular border-crossers, and 75,919 from egular residents. Finally, in 2009, there were 353,561 sets of fingerprints: ,936 from asylum seekers, 31,071from irregular border-crossers, and 85,554 m irregular residents. Itcan be seen that over 2003-08, the total number of asylum seekers' finprints registered dropped and then increased again (with a minor drop in 9), in line with the trend for asylum applications. On the other hand, the er of fingerprints registered from irregular border-crossers and irregular ents has overall risen significantly, although there was a sharp drop for former category in 2009 (understood to be the consequence of an agreetbetween Italy and Libya). For several years, the Commission suggested many cases ofirregular border crossing may be missing from the Eurodac em, but it has not repeated this suggestion since the 2007 general evalun. In any event, the statistics regularly show that over half of the irregurder-crossers who made a subsequent asylum claim did so in the same ber State-which is irrelevant for the purposes of the Dublin system. ut20-25% of the persons who were irregularly staying had made prior urn claims, one-third of these in the same Member State. The percentof multiple asylum applications detected was 7% in 2003, 13.5% in 2004, 16% in 2005, and then stabilized: 17% in 2006, 16% in 2007, and 17.5% 08 (these figures include some comparisons with fingerprints submitted e same Member State). The Commission frequently observed that there e"a high number of 'special searches' of the system, which were supposed ~exceptionallyrare. the annual reports nor the general evaluation of the Dublin system have been able to draw comprehensive conclusions about the link Eurodac data and the application ofthe Dublin II Regulation, except to Member States rarely accept responsibility for irregular border-crossers absence ofsuch data. But it is clear, as discussed above, that since Eurodac the numbers of persons covered by the Dublin rules has only modestly. So it might be questioned whether Eurodac has contributed operation of the Dublin rules sufficiently to justify the cost of the system and its Member States. remams to be seen whether this situation changes once national authorities to certain information in the Visa Information System (VIS) in order determining the country responsible for determining the asylum Asylum364 497 Chapter III of the Regulation (Arts 8-10). 498 Chapter VI (Arts 13-20). 500 See 5.8.4 below. 501 Art 23. On the issue of comitology, see 2.2.2.1 502 [2002] OJ L 62/1. 511; Art 24 ofReg 272512000. On the first general evaluation, see 5.8.2 above. 5114 SEC (2004) 557, 5 May 2004 (for 2003); SEC (2005) 839, 20 June 2005 (for 1170, 15 Sep 2006 (for 2005); SEC (2007) 1184,11 Sep 2007 (for 2006); COM 2009 (for 2007); COM (2009) 494, 25 Sep 2009 (for 2008); and COM 2009). subsequently taken from asylum seekers."?" Member States may also take fing prints of third-country nationals 'found illegally present' and transmit the the Central Unit to see whether such persons have previously applied for asyl in another Member State. There are provisions on data protection, data secgri and rights ofthe data subject."?" For a transitional period, the data on recogniz refugees is blocked once the refugee status ofa person is granted.'?" At the en that period (January 2008), the EU institutions had to decide either to store data and use it in the same way as data on asylum seekers, or to erase all dat soon as a person has been recognized as a refugee. No such decision has taken, although the subsequent proposal to amend the Regulation addressesit issue.500 The EU institutions disagreed as to which institution should have the to adopt implementing measures. Ultimately, although Article 202 after the Treaty of Lisbon, Article 291 TFEU) required implementing to be delegated to the Commission, with a limited possibility of power to the Council, the Council decided that it would retain adopt the measures concerning the detailed operations of the Central concerning the 'blocking' of the fingerprints of recognized refugees, leaving other measures to be adopted by the Commission following 'comitology' procedure.501 Applying this procedure, the Eurodac "'"-c;><'cu", was subsequently implemented by Council Regulation Regulation sets out rules on transmission of data by Member States, out comparisons by the Central Unit, communication between Member and the Central Unit, and other tasks of the Central Unit, which COIQCe:Xtl separation ofdata on different categories offingerprints and gathering on the number of recognized refugees who request asylum in other States. The Commission is required to report annually on the operation and to evaluate Eurodac generally at regular periods, beginning 2006.503 According to these annual reports.F" in 2003 Eurodac 271,573 sets of fingerprints: 246,902 from asylum seekers, 7,857 lar border-crossers, and 16,814 from irregular residents. In 2004, Member States began operating the Eurodac system, most immediately accession and the last two by July 2004. Eurodac registered 287,938 gerprints: 232,205 from asylum seekers, 16,183 from irregular border-cross 365Responsibility for applications from irregular residents. In 2005, there were 258,684 sets of fin- 187,223 from asylum seekers, 25,162 from irregular border-crossers, 46,299 from irregular residents. In 2006, there were 270,611 sets of fingerts: 165,958 from asylum seekers, 41,312 from irregular border-crossers, and 341 from irregular residents. In 2007, there were 300,018 sets offingerprints: ,284 from asylum seekers, 38,173 from irregular border-crossers, and 64,561 rnirregular residents. In 2008, there were 357,421 sets offingerprints: 219,557 Illiasylum seekers, 61,945 from irregular border-crossers, and 75,919 from egular residents. Finally, in 2009, there were 353,561 sets of fingerprints: ,936 from asylum seekers, 31,071from irregular border-crossers, and 85,554 m irregular residents. Itcan be seen that over 2003-08, the total number of asylum seekers' finprints registered dropped and then increased again (with a minor drop in 9), in line with the trend for asylum applications. On the other hand, the er of fingerprints registered from irregular border-crossers and irregular ents has overall risen significantly, although there was a sharp drop for former category in 2009 (understood to be the consequence of an agreetbetween Italy and Libya). For several years, the Commission suggested many cases ofirregular border crossing may be missing from the Eurodac em, but it has not repeated this suggestion since the 2007 general evalun. In any event, the statistics regularly show that over half of the irregurder-crossers who made a subsequent asylum claim did so in the same ber State-which is irrelevant for the purposes of the Dublin system. ut20-25% of the persons who were irregularly staying had made prior urn claims, one-third of these in the same Member State. The percentof multiple asylum applications detected was 7% in 2003, 13.5% in 2004, 16% in 2005, and then stabilized: 17% in 2006, 16% in 2007, and 17.5% 08 (these figures include some comparisons with fingerprints submitted e same Member State). The Commission frequently observed that there e"a high number of 'special searches' of the system, which were supposed ~exceptionallyrare. the annual reports nor the general evaluation of the Dublin system have been able to draw comprehensive conclusions about the link Eurodac data and the application ofthe Dublin II Regulation, except to Member States rarely accept responsibility for irregular border-crossers absence ofsuch data. But it is clear, as discussed above, that since Eurodac the numbers of persons covered by the Dublin rules has only modestly. So it might be questioned whether Eurodac has contributed operation of the Dublin rules sufficiently to justify the cost of the system and its Member States. remams to be seen whether this situation changes once national authorities to certain information in the Visa Information System (VIS) in order determining the country responsible for determining the asylum Asylum364 497 Chapter III of the Regulation (Arts 8-10). 498 Chapter VI (Arts 13-20). 500 See 5.8.4 below. 501 Art 23. On the issue of comitology, see 2.2.2.1 502 [2002] OJ L 62/1. 511; Art 24 ofReg 272512000. On the first general evaluation, see 5.8.2 above. 5114 SEC (2004) 557, 5 May 2004 (for 2003); SEC (2005) 839, 20 June 2005 (for 1170, 15 Sep 2006 (for 2005); SEC (2007) 1184,11 Sep 2007 (for 2006); COM 2009 (for 2007); COM (2009) 494, 25 Sep 2009 (for 2008); and COM 2009). subsequently taken from asylum seekers."?" Member States may also take fing prints of third-country nationals 'found illegally present' and transmit the the Central Unit to see whether such persons have previously applied for asyl in another Member State. There are provisions on data protection, data secgri and rights ofthe data subject."?" For a transitional period, the data on recogniz refugees is blocked once the refugee status ofa person is granted.'?" At the en that period (January 2008), the EU institutions had to decide either to store data and use it in the same way as data on asylum seekers, or to erase all dat soon as a person has been recognized as a refugee. No such decision has taken, although the subsequent proposal to amend the Regulation addressesit issue.500 The EU institutions disagreed as to which institution should have the to adopt implementing measures. Ultimately, although Article 202 after the Treaty of Lisbon, Article 291 TFEU) required implementing to be delegated to the Commission, with a limited possibility of power to the Council, the Council decided that it would retain adopt the measures concerning the detailed operations of the Central concerning the 'blocking' of the fingerprints of recognized refugees, leaving other measures to be adopted by the Commission following 'comitology' procedure.501 Applying this procedure, the Eurodac "'"-c;><'cu", was subsequently implemented by Council Regulation Regulation sets out rules on transmission of data by Member States, out comparisons by the Central Unit, communication between Member and the Central Unit, and other tasks of the Central Unit, which COIQCe:Xtl separation ofdata on different categories offingerprints and gathering on the number of recognized refugees who request asylum in other States. The Commission is required to report annually on the operation and to evaluate Eurodac generally at regular periods, beginning 2006.503 According to these annual reports.F" in 2003 Eurodac 271,573 sets of fingerprints: 246,902 from asylum seekers, 7,857 lar border-crossers, and 16,814 from irregular residents. In 2004, Member States began operating the Eurodac system, most immediately accession and the last two by July 2004. Eurodac registered 287,938 gerprints: 232,205 from asylum seekers, 16,183 from irregular border-cross 5.8.4. Proposals for amendment 367Responsibility for applications ~e)TAS(,a zvrt .J\.)): on the procedures Directive, see 5.7 above. Arguably this is already implicitly rect interpretation of the current provision. 514 New Arts 4-6. 7(3). 516 Revised Art 8. Arts 11 and 12. These rules would now be part of the main hierarchy, not ancillary substance ofthe former rules would also be amended. 5IR Art 17. Art 25 (see also revised Art 32) and new Arts 26 and 27. On the issue of detention, it that the detention of asylum seekers falls outside the scope of the EU's Returns 2008/115, [2008] OJ L 348/98): see Case C-357/09 PPU Kadzoev, judgment of yet reported. 520 New Arts 29 and 30. 31. 522 See, for instance, the revised Art 1(1). 5; see n 492 above. 524 Revised Arts 7(1) and 12(2). 8 and revised Art 9(h)-(k). 526 Revised Art 14(1). 16 and 33. 528 Revised Art 25. 27 and 28. On the EDPS, see further 12.3.2 below. iessly that such a State must be a 'safe third country' as defined in the asylum edures legislation":' There would be expanded procedural rights concerning rotection-seekers' right to information, the right to a personal interview, pecial guarantees for rninors.>" emain criteria for responsibility would not be amended, except to: change ules on timing ofapplications where the interests offamily unity or the best ests ofthe child were an issue;515 make assorted changes to the rules applicable sponsibility for unaccompanied minors.i" and provide for a different status erules relating to dependent relatives and potentially separated families.i'" humanitarian provisions would require the applicant's consent.t" The rules would be amended in order to provide further information to applicant, a stronger right to a remedy, and detailed rules regulating detention pplicants.F'" There would be new rules concerning costs and the exchange of rmation before transfers are carried out.520 Finally, there would be the possuspending the entire Dublin system as regards (a) particular Member a limited period.F' the Eurodac Regulation, first of all its scope would also be extended to who make applications for subsidiary protection.522 As noted above, be managed by a new agency, rather than the Commission.F' now be a deadline to take the fingerprints within seventy-two hours application for international protection was made, or after apprehension nCCllUll with irregular crossing ofan external border.524 The database would additional information on the status ofthe data subject.>" Data on irreguoruei--crossers would only be kept for one year, consistently with the responin the Dublin Il (and Ill) Regulation.>" However, data on persons received international protection status would now be unblocked.F" ofdata subjects would be enhanced.v" and there would be new provirole ofthe European Data Protection Supervisor (EDPS).529 Finally, tmW].SlCJilS concerning the adoption ofimplementing measures by the Council Asylum366 In December 2008, the Commission proposed parallel measures toa both the Dublin Il Regulation and the Eurodac Regulation.P'" The :E1JI~ proposal was replaced by a new proposal in September 2009,508at whichp the Commission also proposed a parallel third pillar Decision to givy enforcement services access to Eurodac data.509 The latter proposal la with the entry into force of the Lisbon Treaty, and has not yet been rep by a new proposal, although a replacement proposal will likely be il).a 2010.510 The proposed amendments to the Dublin Il Regulation would first extend the scope of that Regulation to persons who make applicationsfo sidiary protection.>" Next, the scope of 'family members' would be enl to include married minor children, the parents of married minor children minor siblings.t'" The provision permitting Member States to determin.e a third State is responsible for the application would be amended to (;9 claim.505 The future is likely to include interlinks between Eurodac EU information systems.P'" The operation of Eurodac is subject to the principles of data protection the right to privacy, in particular requiring a link with the data collected legitimate aim and the application of the principle ofproportionality the 'purpose limitation' principle of data protection law, ie giving access data only for the purposes it was originally collected for). In fact, the system already infringes this principle to the extent that data on irregular crossers is kept for a longer period than the period during which a Member could be held responsible under the Dublin Il rules. 505 Art 18 ofReg 767/2008 ([2008] OJ L 218/60); see generally 4.8 above. See also ;;.5 ab access to the VIS to decide on the merits of asylum claims. 506 See Commission Communication (COM (2005) 597, 24 Nov 2005). 507 COM (2008) 820 and 825, 3 Dec 2008. For comments on the proposals, see: ECRg, at: ; the Meijers Committee' onli ;a UNHCR, online at: . 508 COM (2009) 342, 10 Sep 2009. 509 COM (2009) 344, 10 Sep 2009. See also the 'bridging clause' in the proposed R (new Art 3, ibid). 510 The correct legal base for this proposal would now be Art 87(2)(a) TFEU. See.12.2,4 511 See, for instance, the revised Arts 1 and 2(b). This would also mean that responsib applications would lie with a Member State where a family member has received or appli international protection, not merely refugee status (revised Arts 9 and 10). 512 Revised Art 2(i).