Over the past two years, the debate concerning the reform of the Dublin Regulation has gained political attention, as the so-called refugee crisis keep has increasingly revealed several flaws in the functionality of the system. This was at the heart of the Commission’s Agenda on Migration and of the European Parliament’s Resolution of 29 April 2015.
More specifically, the main problem lies in the criteria for determining the State responsible for the receipt and the processing of an asylum claim.
On April 6th, the European Commission issued a Communication called “Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe”, which contains several references of the need for reforming the current rules established by the Dublin Regulation.
In this, the European Commission suggested two possible pathways for reforming the Dublin Regulation. The first proposal was similar to one made in September 2015, and introduced a permanent system of emergency relocation, which consisted of a corrective mechanism. However, the criterion of the state of first entry would not have been modified in this case.
The second proposal was more radical because it would decisively change the criterion of the state of first entry, since the responsibility would be allocated on the basis of a so-called “distribution key”, which takes into account certain factors like the size and the wealth of the Member State. This means that, on this basis, asylum seekers would have to be allocated to a Member State when they apply for international protection in the EU according to an evaluation of the economical and social availability of the Member State to. On May 5th the Commission finally came up with a proposal concerning the reform of the Common European Asylum System, which also contained a partial reform of the Dublin System.
In this article, we are going to analyse the main aspects of the final proposal, underscoring the major critical points related to the Dublin rules.
Since its inception, the Dublin system has been concerned with tackling two phenomena related to migration and asylum requests: the so-called “refugee in orbit” and “asylum shopping”. However, it has failed to fulfil its goals, on top of which it has also created several problems for Member States in charge of the control of external borders, notably because of the criteria of allocation of responsibility.
It is important to note that, according to the Dublin III Regulation, the criteria for determining the competent State for the receipt and the treatment of an asylum claim is, in order of priority:
- The competent State is the State where family members of the asylum seeker regularly reside.
- The competent State is the State where the asylum seeker has most recently received a visa.
- The competent State is the one where the asylum seeker has entered the EU for the first time, irregularly or regularly.
As often declared by the Commission, the Dublin rules were not initially conceived for setting up a fair and supportive system. The goal was only to quickly come up with a way to establish the competent State. The lack of fairness and solidarity is one of the main reasons of the failure of the system and the urgent need to recast it.
Indeed, the aim of the Commission’s current proposal is to establish a fairer, more efficient and more sustainable system based on solidarity.
As first Vice-President Timmermans has declared: « We know that people will keep arriving at our borders and ask for asylum, and we will need to make sure those who need protection receive it. Yet we have seen during this crisis how just a few Member States were placed under incredible strain because of the shortcomings of the present system, which was not designed to deal with situations of this kind. There’s simply no way around it: whenever a Member State is overwhelmed, there must be solidarity and a fair sharing of responsibility within the EU. This is what our proposal of today is meant to ensure. »
Similarly, the Commissioner for Migration and Home Affairs, Dimitris Avramopoulos, has said: « If the current refugee crisis has shown one thing: it is that the status quo of our Common European Asylum System is not an option. The time has come for a reformed and more equitable system, based on common rules and a fairer sharing of responsibility. With the proposed reform of the Dublin system today we are taking a major step in the right direction and putting in place the European-level structures and tools necessary for a future-proof comprehensive system. We must turn these proposals into reality as swiftly as possible. »
According to the current proposal, the new system will assure transparency and effectiveness, given the following provisions:
– A corrective allocation mechanism (the so-called fairness mechanism) will be able to determine whether a country is handling a disproportionate number of asylum requests. This will be calculated on the basis of a country’s size and wealth. If the number of asylum requests exceeds 150% of the reference number, all further applications will be relocated.
– Shorter time limits for Dublin procedures: this provision will apply to the applicability of the illegal entry criterion and the deadline to send a transfer request. Moreover, the so-called “shift of responsibility” (art 19 Dublin III regulation) will be removed.
These provisions have raised much criticism, most of which is related to the fact that the main criteria have not modified at all. As professor Marcello di Filippo said during a debate in Brussels, “why providing a corrective mechanism instead of changing the main criteria, which is also the principal critical issue about the Dublin system?”
Furthermore, the proposal contains several human rights related issues. First of all, art. 16 of the proposal provides that non-compliance has to be sanctioned, which means that the procedures have to be carried out more quickly and that the asylum seeker is not entitled to the reception conditions according to art. 14 of Directive 2013/33/EU.
Furthermore, the Commission also proposes a limit on the scope of the right of appeal to systemic deficiencies of the system or for family reasons.
Moreover, according to the proposal, these provisions shall be applied to beneficiaries of international protection as well, which would mean a restriction of rights, especially the rights of free movement.
Finally, the proposal envisions that, in case of absence of family members or relatives, the country of first entry is the one in charge of the examination of an asylum request of an unaccompanied minor. This provision is highly problematic with regards to the assessment of the best interest of the child, which should be taken into account before every decision concerning unaccompanied children and minors.
Ultimately, two positive changes can be observed:
– The extension of the definition of family members to siblings and the abolition of the necessity that family has to exist in the country of origin.
– The reduction of the duration of detention to 6 weeks (currently the system allows a maximum of 12 weeks.)
For further information:
- European Commission press release:http://europa.eu/rapid/press-release_IP-16-1620_en.htm
- Commission’sproposal: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160504/dublin_reform_proposal_en.pdf
- Commission’s factsheet: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/20160504/the_reform_of_the_dublin_system_en.pdf