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Does the Dublin system need a major reform?

Introduction: The Dublin system in the context of EU migration and asylum policy

 

Asylum and migration policy are among the most sensitive issues in the EU and have been for a long time. It is an area where important rights and freedoms of persons (especially applicants for international protection) and the interests of both individual states and the EU as a whole (economic, security, and others) collide. The Common European Asylum System (CEAS) plays a key role in regulating and coordinating Member States' practices in this area. The Dublin system[1] is an important part of this, as it lays down the rules for determining which Member State is responsible for examining an application for international protection lodged by a third-country national in an EU Member State.[2] It is based on the principle that only one Member State is responsible for examining the application (the so-called "one-chance-only principle"), namely the one that played the biggest role in the applicant's entry and stay in the territory of the Member States (with certain exceptions).

 

Table 1: States applying Dublin system and instruments[3]


        - Dublin regulation

        - EU-Denmark agreement

        - non-EU member states with an agreement to apply the provisions










The Dublin system seeks to limit the phenomenon of 'asylum shopping' (cf., for example, the judgment of the Grand Chamber of the Court of 21 December 2011, N.S., C-411/10 and Others), which consists in an alien pursuing proceedings for international protection in several States simultaneously or successively in order to be successful in at least one State. The applicant thus seeks to take advantage of the differences in the asylum legislation of the various Member States and to obtain asylum in the country which they consider to be the most benign.[4]   At the same time, the Dublin system is intended to avoid a situation known as 'refugee in orbit,' whereby no state is considered to have the competence to examine the merits of an application for international protection.[5] 

The Dublin system is not an achievement of recent years; on the contrary. The idea underlying the current Dublin system - that only one state is responsible for examining an application for international protection lodged in any Member State - became firmly established in the European area in the early 1990s. However, its legal form, as well as its content, has changed over time, responding to the new needs of the European community as well as to problems, threats, and events concerning international migration and asylum law. It can, therefore, be concluded that the Dublin system was and is a continuously evolving set of legal instruments and measures. Currently, its legal basis is Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013, establishing the criteria and procedures for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (the so-called Dublin III).[6]

 

Deficiencies of the Dublin system and attempts to reform it

 

Although the Dublin system has evolved over a long period of time and has tried to respond to the current problems and situation in the field of migration and asylum (not only in Europe), it became clear very soon after the adoption of Dublin III that it had shortcomings and was not fully functional. The fundamental shortcomings are succinctly summarised, for example, in the Evaluation of the Implementation of the Dublin III Regulation - Final Report (2016), which was prepared for the European Commission.[7] By way of example, the following can be mentioned:

The system whereby the State of first arrival is most often responsible for the asylum application has placed a particular burden on coastal States (for example, Greece or Italy). As a result of the insufficient capacity of reception facilities and the congestion in these states, decision-making processes were prolonged, migrants stayed in inadequate conditions and, as a consequence, tried to travel illegally within the EU. Dublin III does not generally take into account situations where a state is facing disproportionate pressure or is dealing with a sudden crisis. Furthermore, it was found that many Member States only inform applicants in general terms or the information is outdated. As regards the family ties criterion, it was found that different Member States use substantially other evidence for these criteria. The main evidence is usually written proof of family ties (e.g., marriage certificate or birth certificate), but this is usually not in the applicant's possession and is very difficult to obtain. Different practices were also found in the case of detention practices, which often led to legal uncertainty. Although all Member States collectively introduced judicial remedies and set a reasonable time limit for lodging an appeal, the "reasonable time limit" varied considerably from one State to another. The first significant attempt at reform was the 2016 proposal for a so-called Dublin IV.[8] However, the proposal has not been adopted. The main problem was the disagreement between Member States on the mechanism for redistributing asylum seekers.

In the autumn of 2020, the European Commission presented a "New Pact on Migration and Asylum.“ The aim of this reform effort is to create a functioning legal framework for migration and asylum policy management, to increase the efficiency of the system and its resilience to migratory pressures.[9] It also aims to remove the factors that encourage migration and, consequently, secondary movements. Last but not least, it aims to combat abuses of the current system and better support the most affected EU Member States.  From a legislative point of view, the Pact is in the nature of a summary Communication (COM (2020) 609 final), a non-binding explanatory document followed by a package of nine instruments.[10] Five of them have the nature of a regulation of EU law, three have the nature of a communication, and one has the nature of guidance.[11]

From that moment on, there were and still are tough discussions within the EU, as there was no consensus among the states on many of the proposed measures from the beginning.[12]   The first successful step in the implementation of the Pact was the creation of the EU Asylum Agency (EUAA), which became operational in January 2022, replacing the European Asylum Support Office (EASO).[13] Significant progress was made in relation to the New Pact on Migration and Asylum in 2022, also thanks to the French and Czech presidencies of the EU Council. An example was the agreement of 21 states to implement a voluntary solidarity mechanism (containing various support measures) for one year.[14] In September 2022 there was reached political agreement on joint roadmap for negotiations between co-legislators in order to adopt the legislative proposals before the end of the 2019-2024 legislative period.

A further step towards successful implementation of the reforms was taken in mid-2023, when the EU Council reached agreement in June on key acts on asylum and migration. Finally, and most recently, in December 2023, a key agreement between the EU Council and the European Parliament was announced, representing a major breakthrough towards a common EU migration management system. The agreement covers five key proposals of the Pact including The Asylum and Migration Management Regulation.[15]

 

Table 2: Timeline – New Pact on Migration and Asylum[16]


  

Proposed changes to the Dublin System in the context of the New Pact on Migration and Asylum


And now, in more detail, on how the Dublin rules and procedures should be changed as part of the proposed reforms:

The modifications proposed in relation to the Dublin rules are also very important: The Asylum and Migration Management Regulation (AMMR) should replace, once agreed, the current Dublin III regulation.[17] As already said, Dublin system sets out rules determining which Member State is responsible for the examination of an asylum application. The AMMR will streamline these rules and shorten time limits. For example, the current complex take back procedure aimed at transferring an applicant back to the Member State responsible for his or her application will be replaced by a simple take back notification

To balance the current system whereby a few Member States are responsible for the vast majority of asylum applications, a new solidarity mechanism is being proposed that is simple, predictable and workable. The new rules combine mandatory solidarity with flexibility for member states as regards the choice of the individual contributions. These contributions include relocation, financial contributions or alternative solidarity measures such as deployment of personnel or measures focusing on capacity building. Member States have full discretion as to the type of solidarity they contribute. No Member State will ever be obliged to carry out relocations.[18]

There will be a minimum annual number for relocations from Member States where most persons enter the EU to Member States less exposed to such arrivals. This number is set at 30 000, while the minimum annual number for financial contributions will be fixed at €20 000 per relocation. These figures can be increased where necessary and situations where no need for solidarity is foreseen in a given year will also be taken into account. In order to compensate for a possibly insufficient number of pledged relocations, responsibility offsets will be available as a second-level solidarity measure, in favour of the Member States benefitting from solidarity. This will mean that the contributing Member State will take responsibility for the examination of an asylum claim by persons who would under normal circumstances be subject to a transfer to the Member State responsible (benefitting Member State). This scheme will become mandatory if relocation pledges fall short of 60% of total needs identified by the Council for the given year or do not reach the number set in the regulation (30 000).[19]

The AMMR also contains measures aimed at preventing abuse by the asylum seeker and avoiding secondary movements (when a migrant moves from the country in which they first arrived to seek protection or permanent resettlement elsewhere). The regulation for instance sets obligations for asylum seekers to apply in the Member States of first entry or legal stay. It discourages secondary movements by limiting the possibilities for the cessation or shift of responsibility between Member States and thus reduces the possibilities for the applicant to choose the Member State where they submit their claim.[20]

 

Conclusion


But - it is legitimate to ask: Will the new Pact, including the AMMR, really be a positive reform step? It is certainly a major positive that a new migration pact is being created at all. The fact that the existing mechanism is inadequate and dysfunctional is evidenced by the poor situation in overcrowded refugee camps, the activity of illegal smugglers and, last but not least, the growing tensions in European societies, where xenophobic tendencies are growing. The new Pact opens the way to solve these problems, to make migration management more effective and to greater mutual understanding within the EU. Other positive elements include the recognition of the need to carry out rescue operations at sea, the end of mandatory quotas for the reception of refugees, the prevention of criminalisation of organisations and individuals helping refugees, the extension of the definition of family members, independent monitoring of respect for fundamental human rights at external borders, and an emphasis on the integration of asylum seekers.[21] 

However, these are individualities that cannot offset the fact that the Pact does not bring the promised new beginning or the emphasis on solidarity, humanity and migrants' rights, but continues to focus pragmatically on border control, repression, externalisation and returns. According to a consortium of NGOs in the Czech Republic working on migration issues, the Pact is based on the "incorrect assumptions" that most asylum claims in the EU are unfounded, that asylum procedures can usually be carried out very quickly, and that most migrants will return to their countries of origin.[22] There continues to be a reliance on the responsibility and capacity of states at the EU's external borders to be assisted in solidarity by other EU states, which is also far from reality.[23] 

In particular, the mechanism of collective solidarity has been the target of criticism. Solidarity will be required from Member States in the event of a high number of new arrivals to a Member State and in the case of search and rescue operations at sea. The activation of the solidarity mechanism will be preceded by national assessment processes and states will be invited to offer solidarity measures to the Member State concerned. This is not the establishment of a predictable mechanism, but rather a series of negotiations and 'bargaining' with an unclear outcome. The solidarity required may take the form of refugee relocations, sponsored returns, support in the area of increasing the capacity of the state to receive refugees or support for the external dimension of migration in order to reduce migration flows.[24]  Throughout the process, there are a number of uncertainties as to the legal guarantees of the process and the responsibilities of each state. Cooperation with countries outside Europe (e.g. Libya) where migrants' rights are not respected is also problematic. As Eve Geddie, Director of Amnesty International's European Institutions Office, states, "instead of prioritising solidarity through relocation and strengthening protection systems, states may simply pay to reinforce external borders or fund non-EU countries to prevent people from reaching Europe".[25]

It can therefore be concluded that the idea of change and reform in the area of asylum and migration policy and EU legislation is necessary, but the question is to what extent the negotiated compromise between all actors will work in practice and how the situation will improve, especially for applicants for international protection, but also for countries overloaded with migrants and asylum applications.

 

Reference

[1] See Judgment of the CJEU of 17 March 2016 in case C-695/15 PPU Shiraz Baig Mirza.

[2] In more details Judgment of the Constitutional Court of the Czech Republic, II. ÚS 3505/18 of 3 June 2019.

[3] Source: Wikipedia – Dublin Regulation.

[4] Honusková, Jurman, Kosař, Lupačová, Molek, 2010, s. 58, the same opinion Boccardi, 2002, p. 43.

[5] Pazderová, 2012, p. 322.

[6] See Horková, 2016, pp. 105-106.

[7] Evaluation of the Implementation of the Dublin III Regulation – Final Report. Available: https://home-affairs.ec.europa.eu/system/files/2020-09/evaluation_of_the_implementation_of_the_dublin_iii_regulation_en.pdf

[8] Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast). Brussels 4. 5. 2016 COM (2016) 270 final 2016/0133 (COD).

[9] Guilbert, 2012.

[10] Komínková, 2020.

[11] Konsorcium nevládních organizací pracujících s migranty: Stanovisko k EU Paktu o migraci a azylu, 2012. Available: https://migracnikonsorcium.cz/wp-content/uploads/2021/04/stanovisko-konsorcia-k-eu-paktu-o-migraci-a-azylu.pdf.

[12] Especially the proposed solidarity mechanism. Viz Guibert et al., 2021.

[13] European Union Agency for Asylum: Reforming the Common European Asylum System: An ongoing process. Available: https://euaa.europa.eu/asylum-report-2023/21-reforming-common-european-asylum-system-ongoing-process#footnote86_bljp4su.

[14] European Union Agency for Asylum: Reforming the Common European Asylum System: An ongoing process. Available: https://euaa.europa.eu/asylum-report-2023/21-reforming-common-european-asylum-system-ongoing-process#footnote86_bljp4su

[15] European Comission: Comission welcomes the major progress achieved by Parliament and Council on the New Pact on Migration and Asylum. Available: https://ec.europa.eu/commission/presscorner/detail/en/statement_23_6708 

[16] European Comission: What is the New Pact on Migration and Asylum of the EU? Available: https://home-affairs.ec.europa.eu/policies/migration-and-asylum/new-pact-migration-and-asylum_en 

[17] Council of the EU: Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management, 2023. Available: https://data.consilium.europa.eu/doc/document/ST-10443-2023-INIT/en/pdf.

[18] Council of the EU: Migration policy: Council reaches agreement on key asylum and migration laws. 2023. Avalilable: https://www.consilium.europa.eu/en/press/press-releases/2023/06/08/migration-policy-council-reaches-agreement-on-key-asylum-and-migration-laws/?utm_source=dsms-auto&utm_medium=email&utm_campaign=Migration+policy%3a+Council+reaches+agreement+on+key+asylum+and+migration+laws.

[19] Ibidem.

[20] Council of the EU: Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management, 2023. Available: https://data.consilium.europa.eu/doc/document/ST-10443-2023-INIT/en/pdf.

[21] Konsorcium nevládních organizací pracujících s migranty: Stanovisko k EU Paktu o migraci a azylu, 2012. Available: https://migracnikonsorcium.cz/wp-content/uploads/2021/04/stanovisko-konsorcia-k-eu-paktu-o-migraci-a-azylu.pdf.

[22] Ibidem.

[23] Gianpaolo, M., Lanni, A. Řízení migrace v EU. Nový Pakt o migraci a azylu.   Diakonie ČCE, 2021. Available: https://tvaremigrace.cz/res/archive/003/000428.pdf?seek=1615452720 

[24] Konsorcium nevládních organizací pracujících s migranty: Stanovisko k EU Paktu o migraci a azylu, 2012. Available: https://migracnikonsorcium.cz/wp-content/uploads/2021/04/stanovisko-konsorcia-k-eu-paktu-o-migraci-a-azylu.pdf.

[25] Bayer, L. Amnesty warns new EU deal on migration and asylum will lead to surge in suffering – as it happened, 2023. Available: https://www.theguardian.com/world/live/2023/dec/20/eu-reaches-deal-on-migration-and-asylum-pact-live#top-of-blog

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