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AMI a toujours insisté auprès des institutions sur le fait que le règlement européen Dublin III n’était pas ou plus dans l’intérêt ni des pays accueillants, ces fameux États “responsables” d’une demande d’asile, ni des demandeurs d’asile eux-mêmes. Cette convention, ayant ses origines en 1990, fut d’abord signée entre les États membres de la Communauté puis plusieurs États associés, pour établir les critères définissant l’unique État responsable du traitement d’une demande d’asile. En règle générale, il s’agit de l’État qui a laissé entrer le demandeur d’asile dans l’espace commun européen , en lui délivrant un titre de séjour ou parce qu’il s’agit du premier pays signataire par lequel a transité le demandeur.
En 2008, la Commission Européenne propose des amendements au règlement de Dublin, créant une opportunité de réforme du système de Dublin. Le règlement Dublin III est approuvé en juin 2013, remplaçant Dublin II, et s’applique à tous les États membres. Il entre en vigueur le 19 juillet 2013 et repose sur le même principe que les deux précédents, à savoir que, sauf critères familiaux, le pays responsable de la demande d’asile d’un migrant est le premier État membre où sont conservées les empreintes digitales.
À l’instar du règlement Dublin II, Dublin III prévoit la détention avant le transfert vers l’État compétent. En ce qui concerne les conditions de détention et les garanties pour les personnes détenues, les articles 9, 10 et 11 de la directive « accueil » sont utilisés pour assurer les procédures de transfert vers l’État membre responsable. Le transfert peut être décidé si l’État responsable donne son accord. Paradoxalement, les États donnent leur accord, sans garantie de prise en charge à l’arrivée, voire sans possibilité pour le migrant de déposer l’asile à l’arrivée. Si ce transfert n’est pas réalisé dans les six mois après la réponse (dix-huit mois en cas de fuite), le migrant peut formuler une demande d’asile dans un autre pays que l’État initialement responsable de sa demande.
En France, les préfectures ont un pouvoir discrétionnaire sur ce règlement : au cas par cas, les Préfets peuvent décider d’appliquer ou non la procédure de renvoi vers l’État dit responsable de la demande d’asile. C’est sur ce point que nous insistons. Un aspect que l’association revendique encore plus maintenant, étant donnés non seulement la situation européenne migratoire dans son ensemble mais aussi le nouveau décret en Italie, principal pays vers lequel sont renvoyés les demandeurs d’asile arrivés en France.
En effet, ce nouveau décret Salvini anti-immigration ne permet plus (ou encore moins) un accueil digne des demandeurs d’asile, d’où l’absurdité , voire le cynisme, de renvoyer des demandeurs d’asile en Italie, sous le prétexte de l’existence de cette convention européenne, caduque. Le pouvoir discrétionnaire du Préfet sur ce point n’est que très rarement appliqué. Néanmoins, depuis l’entrée en vigueur du décret Salvini, quelques cas en octobre et novembre 2018 devraient/pourraient faire jurisprudence en France (Pau, 15-10-2018 par exemple), dans lesquels les tribunaux ont annulé des renvois vers l’Italie, s’appuyant sur des conditions non garanties en Italie.
Par ailleurs, le dernier rapport du Défenseur Des Droits (19-12-2018) sur la situation des exilés en France souligne également vigoureusement les dangers de cette procédure :
“À l’origine de la constitution des camps, la politique migratoire de l’Union européenne et le règlement « Dublin III »: L’externalisation de la frontière britannique en France demeure l’une des principales causes de la reconstitution des campements de fortune à Calais, Grande-Synthe ou Ouistreham, puisqu’elle empêche les exilés qui le souhaitent d’atteindre la Grande-Bretagne. L’ensemble des accords liant les deux pays aggrave les effets de la politique migratoire de l’Union européenne. Reposant sur plusieurs piliers – dont, notamment, le renforcement de la coopération avec les pays tiers -, cette politique contribue à réduire de manière drastique les voies légales d’immigration en Europe, en contradiction avec le droit de quitter n’importe quel pays y compris le sien, consacré par la Convention européenne des droits de l’Homme et la Déclaration universelle des droits de l’Homme. Cette volonté d’« endiguement » ne dissuade pourtant pas les départs dans la mesure où ceux-ci, qu’il s’agisse de fuir des persécutions ou une situation de précarité économique insoutenable, répondent toujours à une impérieuse nécessité. Elle conduit en revanche les étrangers qui fuient leur pays à emprunter des voies d’immigration toujours plus périlleuses, souvent avec l’aide de passeurs.Lorsque, malgré la mise en œuvre d’une telle politique, les exilés parviennent à atteindre le territoire européen, le règlement Dublin prend le relais pour permettre à chaque État de renvoyer une partie des exilés, demandeurs d’asile, vers un autre pays européen, quand il ne dissuade tout simplement pas le dépôt des demandes d’asile en France, craignant parfois de subir des violences ou de ne pas être entendues. Loin de faire renoncer les exilés à leur projet migratoire, ce dispositif les incite à vivre dissimulés, parfois dans des conditions d’extrême dénuement et livrés aux pires exploitations. Sans perspective, sans examen réel de leur situation, ils sont voués à une errance perpétuelle.Aujourd’hui, le lien entre l’application du règlement Dublin et la reconstitution des campements est fait par de nombreux acteurs, notamment par des maires de grandes villes ou encore le directeur général de l’OFPRA. Le Défenseur des droits réitère sa recommandation de 2015, tendant à suspendre l’application de ce règlement qui s’avère de surcroît inefficace puisque seulement 10 à 15% de décisions de transferts sont effectivement exécutées. Renouvelant les constats faits en octobre 2015 quant aux effets pervers de l’externalisation des frontières britanniques en France et ne cachant pas ses inquiétudes dans un contexte où le Royaume-Uni affiche clairement sa volonté de restreindre l’immigration après le « Brexit », le Défenseur des droits recommande au gouvernement français de dénoncer les traités et accords du Touquet. »
AMI accueille de nombreux demandeurs d’asile en procédure Dublin. Les situations individuelles qui poussent ces personnes à vouloir demander l’asile en France et non ailleurs sont en premier lieu des situations de persécutions dans le pays d’origine, mais aussi de facto une attente en France pendant des mois de l’instruction de la demande d’asile. Pendant ces mois, le migrant a généralement pu initier un parcours d’insertion sociale et linguistique, auprès d’associations et d’institutions locales. Le rôle des CAO et CADA dans ce début d’intégration est primordial. Le transfert vers le pays responsable, majoritairement l’Italie, est ordonné et imposé au demandeur d’asile sans lui laisser la chance de pouvoir continuer son parcours en France, en lui faisant risquer de se retrouver à déambuler dans le pays responsable, dans lequel par définition il a déjà essayé de déposer une demande d’asile, sans suite. AMI déplore ces paradoxes, qui vont à l’encontre des droits fondamentaux de la personne et de la libre circulation.

J.Huou

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