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Unfair, Ineffective and Outdated: It’s Time to Move on From Dublin

7 March 2016

With the refugee crisis showing no sign of improving, and major changes to the EU asylum system looming ahead, Markella Papadouli & Tara Beattie reflect on the challenges and failings of the current Dublin System, as well as the possibilities for a better way forwards.

The refugee crisis: an impetus for change

The Dublin IIII Regulation forms part of the Common European Asylum System (CEAS), and stipulates that all asylum applications be processed in the first EU country where the applicant enters. For geographical reasons, this disproportionately affects Member States located at the external borders of the EU, such as Italy and Greece. These same countries have found themselves in economic dire straits, with Greece being struck particularly hard by the financial crisis.

At the same time, approximately 1.1 million refugees arrived in the EU zone last year: a figure which represents only a snapshot of the ongoing refugee crisis, and which does not include the hauntingly large numbers of asylum seekers dying en route to Europe. In January and February of this year alone, Greece has seen another 122,000 migrants landing on its soil. More asylum seekers and limited resources have served to highlight the inherent unfairness of the Dublin System. In Greece, for instance, this dual strain has led to the European Court of Human Right’s Grand Chamber decision in M.S.S that reception conditions for refugees are so bad as to amount to inhuman or degrading treatment, in violation of Article 3 ECHR.

Dublin’s fragmented application

The weaknesses of the Dublin system are further exploited by its fragmented and lacklustre application across EU Member States. Indicatively, the European Commission adopted infringement decisions against Member States last December for their failure to transpose and implement the CEAS. This follows 40 decisions launched in September of last year, in addition to 34 already pending cases n potential or actual infringements of EU asylum law.  

It is particularly informative to observe the differing approaches between States that are respectively benefitted and burdened by the Dublin system. There have been border closures by external member States such as Hungary and Croatia, and widespread reports of pushbacks, where refugees are forced back behind border lines. On the other hand, countries such as the UK benefit from the current system, since they are not the first ‘port of call’ for asylum applicants. In these circumstances, the UK has been accused of ‘cynical application’ of the Regulation, with Dublin asylum seekers often being detained in the UK, as they are deemed by the Home Office to be automatically likely to abscond. This is despite the clear wording of Article 28 of the Regulation, which states that individuals should not be detained for the sole reason of being subject to the rules, unless there is an extra, “significant risk of absconding”. The UK’s current application in this respect renders this Article nugatory.

On January 28th, the Dublin system faced yet another blow, with the UK Courts permitting four vulnerable Syrian refugees, with siblings in the UK, to legally travel to the UK and have their asylum claims processed there.

Prerequisites for meaningful change

It is thus clear that the current system is not working, but attempting to make changes will present its own challenges. The first step would be to admit that the current system is in collapse. Yet in the case of NS and ME, the Court of Justice of the EU approached the issue as an isolated, rather than systematic, failure.

The AIRE Centre believes that the creation of an independent assessment mechanism of national asylum systems across Europe would be a good starting point. It would recognise that different standards of protection are applied across the EU, and help to identify the key areas and countries for improvements. Moreover, the distribution criteria require reconsideration; clearly, pressure should be taken off the southern-border states such as Greece.

There is also the need for improved communication with persons seeking protection in Europe, in order to better understand the profile of asylum seekers, their vulnerabilities and wishes. This is vital if the EU wants a human, practical system, which takes into account the asylum seekers’ reasons for onward travel.

Finally, any changes must be the fruit of a pan-European political consensus. Good faith and open-mindedness are necessary at every step of the procedure: precisely the opposite of what has been seen in recent, failed attempts to reach a collective EU agreement, and amidst increasingly strained diplomatic relations between Austria and Greece. It is also damaging, in this respect, that countries such as the UK have a long history of exercising their ‘opt-out’ option with regard to reforms and improvements. If Member States continue to show mistrust and unwillingness to cooperate, moreover, then any alternative to Dublin will likely be plagued with the same deficiencies.

The way forwards?

The so called “distribution key” system appears to be the most likely successor to Dublin III. This alternative system might consist of a permanent mechanism for redistributing asylum seekers among Member States based upon equitable criteria, such as population size and GDP.

Moreover, there are already calls by the Commission for a European Border and Coastal Guard, who would be responsible for developing the hotspot approach which registers asylum seekers upon their entering Eurozone.[1] If this obligation is put into the hands of a common EU institution, this would go a long way to alleviating the unbearable burdens upon Member States such as Greece. Moreover, this EU body would be the collective responsibility of Member States, thereby promoting the ethos of European solidarity, enshrined in Article 80 TFEU.

The European Commission is expected to announce its plans for change this March. Nonetheless, it must be borne in mind that any new system proposed would take considerable time to come into effect, and would need to be accompanied by transitory provisions.

Putting Dublin into context: the bigger picture

The debate over the Dublin system’s future comprises part of a larger discussion surrounding asylum law and practices in the EU and its Member States.

First, its failings have shed light on the differing approaches amongst Member States’ access to welfare, integration, and family reunification. Moreover, the 2015 migration crisis has raised fundamental issues for the EU as a political union, and exacerbated existing Euroscepticism. Across the Union, several Member States are debating anew the benefits of the EU. The February 2016 EU-UK deal, which includes amendments designed to reign in sovereignty from the EU, arguably strikes at the spirit of the union. Notably, there will be a Treaty amendment so that Britain is exempted from a commitment to the “ever closer union” of the EU. Moreover, a red-card mechanism has been agreed to, meaning that, if national parliaments agree by a 55% majority, they will be able to veto commission proposals.  Finally, the upcoming UK referendum serves as a stark reminder of the European exit option.

It is particularly interesting to hypothesise on the impact of a potential “Brexit” upon the UK’s migration numbers. Since the current Dublin rules are contained within internal EU legislation, the UK would cease to be covered by them from day one of a Brexit. Perhaps the UK could sign a ‘Dublin-style’ agreement with the EU, as the EU has done with countries such as Switzerland and Norway. Yet, as the EU has done so on the condition of these countries accepting EU free movement rules and participation in the Schengen zone, it is unlikely that it would be willing to extend such an offer to the UK, who even currently are exempted from Schengen.  It could be conjectured that the UK would sign agreements with individual EU Member States for the return of asylum-seekers. This seems less likely, however, in the wake of case law such as C-114/12 European Commission v Council of the European Union, which makes clear that the EU has exclusive competence over the allocation of asylum-seekers between Member States and third countries.

All of this could have as its consequence the UK being barred from return asylum-seekers to other EU Member States. In the light of that, the UK would become a more obvious direct destination for asylum seekers, with the possibility of the UK’s migration population actually increasing.

Regardless of the line that the UK will choose to follow, there are other bigger-picture issues to consider with respect to the EU’s future role in world migration. What is the EU’s place in the international community, and what are its responsibilities in tackling the root causes of asylum seeking? How should it approach international problems such as war-torn countries and people-smugglers? These are questions that the EU will have to address if it wishes to develop as a Union in spirit, as well as name.

 


[1]  European Agenda on Migration, COM(2015) 240, 13 May 2015, 17

 

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