Dublin is dead! Long live Dublin! The 4 May 2016 proposal of the European Commission
17 Tuesday May 2016
The Dublin system has been declared dead on numerous occasions over the past decade. It has proven to be highly dysfunctional from the beginning, as the allocation of responsibility did not have the intended effects (i.e. the prevention of “refugees in orbit” and of “asylum shopping”). Nevertheless, Dublin procedures and Dublin transfers are still taking place and the system is still operating. It will continue as the Commission proposal released on 4 May 2016 is a change in the continuity rather than the reform necessary for a more workable and efficient system.
In its 2007 evaluation of the Dublin system, the EU Commission already described these effects and suggested a reform of the system, which then consisted of the Regulation (EC) No. 343/2003 (“Dublin-II-Regulation”) and the Regulation (EC) No. 2725/2000 (“Eurodac-Regulation”) as well as the related Implementing Regulations (Regulation (EC) No. 1560/2003 and Regulation (EC) No. 407/2002). The suggested reform was debated between 2008 and 2013 and led to the adoption of recast Regulations for Dublin (Regulation (EU) No. 604/2013 (“Dublin-III-Regulation”)) and Eurodac (Regulation (EU) No. 603/2013) in 2013 and to changes to the Dublin Implementing Regulation (Regulation (EU) 118/2014). The main aims of the recast were to enhance the efficiency of the system and to provide for higher standards of protection for asylum seekers.
The practical challenges for the system remained obvious – ranging from the cooperation difficulties between the different Member States in the responsibility allocation procedures to practical questions on the implementation of transfers and the actual access of asylum seekers to procedures for international protection. Depending on the analysts’ perspective, the scapegoats for these apparent dysfunctions were either the Member States, the national administrations, the courts, the asylum seekers or the system as such.
Under the pressure of the so-called “migratory crisis” in 2015, the Commission launched on 4 May 2016 – as a first step of a full revision of the CEAS – a recast Dublin Regulation (“Dublin IV”), a recast Eurodac-Regulation as well as a proposal for the establishing of a European Union Agency for Asylum. The latter two proposals are less relevant for the responsibility allocation mechanism as such as they would only be used as tools to enhance the efficiency of the whole CEAS in a broader migratory context and will therefore not be analysed in this blog entry. The latter aims at explaining and analysing the new proposals from a two-fold perspective that is derived from the aims of the 2013 recast: is the new proposal firstly likely to enhance efficiency and secondly, are the human rights obligations adhered to?
The Dublin IV proposal aims at preserving the Dublin system as “the cornerstone” of the CEAS. The proposed changes are supposed to:
- streamline the Dublin rules “to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States’ administrations to apply the system”;
- contribute to the prevention “of secondary movements within the EU, including by discouraging abuses and asylum shopping“;
- provide “for tools enabling sufficient responses to situations of disproportionate pressure on Member States’ asylum systems” through a “corrective allocation mechanism” that ensures a “high degree of solidarity and fair sharing of responsibility” among Member States.
The superordinate aim is to provide for a solid basis for a fair and sustainable EU asylum policy.
This blog entry explains and analyses why the new proposal is not likely to enhance practical efficiency of the system and to what extent it is incompatible with fundamental rights and general principles of Community as well as international law.
Streamlining the Dublin rules is bound to fail
The proposal identifies – in line with the communication of 6 April 2016 – the lack of streamlined Dublin rules and secondary movements as the main challenge for the Dublin system. Measures to streamline the rules and to prevent secondary movements therefore form a key part of the proposal. The variety of measures proposed range from mere deletions of obsolete or practically irrelevant provisions to very substantial changes. Examples of the former is the abolition of the illegal stay criterion (Article 13 (2) Dublin-III-Regulation) and the conciliation mechanism (Article 37 Dublin-III-Regulation). The latter are for e.g. the possibility to transfer beneficiaries of international protection under the Dublin rules (Article 18 (1)(e) of the proposal), the changes with regard to the time limits and the new rules for take back procedures (Article 21 of the proposal).
From a practical implementation perspective some proposed changes are bound to fail. This is especially true for the newly proposed “pre-Dublin procedure”. Article 3(3) of the proposal sets out an obligation for the Member State where the first application was lodged to examine the questions of whether there are reasons to conduct an inadmissibility or accelerated (based on) procedures – as foreseen by the Asylum Procedures Directive – before carrying out the procedure for the determination of responsibility. These procedures shall be conducted if the safe third country, first country of asylum or safe country of origin rules may be applied, or if the applicant may, for serious reasons, be considered a danger to national security or public order. The Member State carrying out such a procedure also stays responsible for the asylum procedure (Article 3 (4) and (5) of the proposal). This consequence will hamper the practical relevance of the inadmissibility and accelerated procedures as Member States – as e.g. highlighted by the 2007 evaluation – are generally reluctant to assume responsibility outside the order of the criteria.
Most of the proposed changes enter into the category of making it clear to the applicant “that the right to apply for international protection does not encompass any choice of the applicant which Member State shall be responsible for examining the application for international protection” (emphasis added). As a first step, the proposal foresees an obligation for the Member State conducting a Dublin procedure to inform the applicant about this setup of the system (Article 6 (1)(a) of the proposal).
Further administrative measures to this end are:
- The abolition of the time limit of 12 months for the applicability of the illegal entry criterion (Article 15 of the proposal),
- The introduction of “take back notifications” instead of “take back requests” (Article 26 of the proposal),
- The abolition of the conditions for a “cessation of responsibility” that are currently contained in Article 19 Dublin-III-Regulation, and
- The abolition of the binding nature of the time limits in take back procedures and of the time limit for the transfer (Articles 26 and 30 of the proposal).
Article 19 currently comprises a cessation responsibility if the asylum seeking person has either been provided with a residence document outside the asylum scheme or has departed for a certain period or after a return decision or removal order from the territory of the Member States. The changes to the time limits also comprise a significant shortening of the time limits for the procedural steps (Articles 21pp of the proposal).
These proposals essentially lead to a return to the situation of the Dublin Convention with shorter but non-binding time limits. One of the main reasons for the introduction of binding time limits was that the evaluation of the Dublin Convention brought to light that non-binding time limits in practice create “asylum-seekers in orbit” for longer periods of time. Moreover, the time limit for the lodging of take back requests was explicitly introduced by the Dublin-III-Regulation to further counter such situations. It is difficult to imagine that this problem of “asylum-seekers in orbit” will not be further enhanced with the return to a system of short and often non-binding time limits.
As a last but very important point the Commission intends to limit the scope for the application of the discretionary clauses for Member States (Article 19 of the proposal). It is suggested that the discretionary clauses should only be applicable as long as the responsibility determination procedure has not ended and that they should be limited to family reasons. The use of the clause for other humanitarian or cultural grounds shall no longer be possible. This limitation is problematic from different perspectives. From a humanitarian perspective it is foreseeable that the limitation of the scope for the discretionary clauses will also contribute to an increase in the number of “asylum-seekers in orbit.”
Preventing secondary movements by violating human rights
To some extent, the Commission proposal aims at countering the phenomenon of “asylum-seekers in orbit” by introducing an article on obligations of asylum seekers (Article 5 of the proposal) comprising:
- The obligation of lodging an asylum application in the Member State of first entry,
- The obligation to speedily provide all elements and information relevant for the Dublin procedure and
- The obligation to comply with the transfer decision and to be present and available to the authorities in this regard.
Non-compliance shall be sanctioned: According to Article 6 of the proposal, the procedure shall be conducted far more quickly in these situations and the applicant shall “not be entitled to the reception conditions set out in Articles 14 to 19 of Directive 2013/33/EU, with the exception of emergency health care” during the Dublin procedure. Such limited access to social rights is incompatible with human rights standards as set out by the 1951 Convention, the ECHR and the CRC as well as by the Charter of Fundamental Rights. Moreover, the obligatory nature of this provision will also create difficult constitutional and human rights related problems in most Member States as a minimal access to social rights is often guaranteed by the Constitutions of Member States.
Also some of the further restrictions foreseen raise severe human rights issues. Inter alia, it is proposed to limit the scope of the right to appeal. It shall only be guaranteed for situations of systemic deficiencies and for family reasons (Article 28 of the proposal). This proposal was introduced despite the pending CJEU cases on some of the aspects of legality of these limitations to appeals (see e.g. Ghezelbash, Karim and Shiri). From a merely European Law perspective, it is hardly imaginable that the proposed limitation does not violate the standards set out by the jurisprudence since Van Gend and Loos. Additionally, the proposed more extensive use of Eurodac and the related enhanced obligations to collect and enter data in Eurodac (Articles 22 and 23 of the proposal) raise significant doubts regarding its compatibility with established data protection principles.
The Commission proposes the application of rules of the Dublin procedure to beneficiaries of international protection (Article 18 (1)(e) of the proposal). This proposal raises further human rights issues as the system is not designed to be applied to persons that actually have a right to reside in one of the Member States. From a Schengen perspective, the compatibility of this proposal with Article 6(2) of the Returns Directive is at least doubtful. Furthermore, such restrictions for beneficiaries of international protection are at least paradoxical in an area of free movement.
The proposal foresees that in the case of the absence of family members or relatives, the country where the first asylum application was lodged shall be responsible for the examination of an asylum application of an unaccompanied minor (Article 8 (4) and Article 10 of the proposal). This is very problematic from a human rights perspective and the proposed provision also contradicts to some extent the CJEU judgement in M.A. and others. From a practical perspective, it is foreseeable that the necessary “assessment of his/her best interests” prior to a transfer (Article 8(4) of the proposal) will lead to non-uniform application of this rule as Member States have significantly diverging approaches to the protection of the rights of the child in asylum procedures. The situation will most likely be as divergent as it was before the CJEU ruling.
Two changes foreseen are likely to extend the human rights compatibility of the system. The first proposal concerns the extension of the definition of family members to siblings and the abolition of the necessity that the family already existed in the country of origin (Article 2g of the proposal). These changes will not solve all the related practical problems in this area but are important steps towards an enhanced protection of the family unity. The second foresees a maximum duration of Dublin detention of a total of six weeks (Article 29 of the proposal) whereas the current system allows for a maximum of twelve weeks of Dublin detention.
Allocation of responsibility in situations of disproportionate pressure
The Commission proposes the abolition of the early warning, preparedness and crisis management mechanism (Art. 33 Dublin-III-Regulation). And suggests the introduction – as a tool for situations of disproportionate pressure on Member States – of a corrective allocation mechanism. The proposed mechanism (Article 34 of the proposal) seems to be administratively unworkable and politically illusory looking at the on-going discussions since the first attempt to establish such a mechanism as part of the Dublin-III-Proposal (Article 31 of the Dublin-III-Proposal of 2008). The current difficulties in setting up the relocation mechanism that was introduced in 2015 also raise the question of whether it would be actually possible to organise the necessary transfers. Nevertheless, looking at alternative ways to allocate responsibility is inevitable for the setup of a real CEAS that actually does what an asylum system should do: providing protection for the person in need of protection.
The proposal has been essentially influenced by an evaluation of the application of the Dublin-III-Regulation and of the administrative workability of the Dublin system conducted by the Commission. At first sight, this evaluation seems to have been conducted in a hasty, non-thorough way as the recast proposal gives the impression of a certain disorientation regarding political context and historical awareness: many of the “newly” proposed measures and solutions have already been (unsuccessfully) “tested” in earlier “versions” of the Dublin system or have already been (unsuccessfully) already proposed in a more favourable political climate.
Moreover, the proposed measures as a whole seem to be guided by the scientifically not validated idea that the main trigger for onward movements are diverging practices in Member States asylum systems. The CEAS is portrayed in these measures as a self-referential system that triggers push and pull factors. The scientifically validated main reasons for onward movements such as family links or cultural reasons or the economical situation of a specific country are widely ignored by the proposed measures. The proposal focuses on measures that significantly limit the possibility to access the asylum system of any other state than the Member States of arrival. The Commission proposal raises serious questions on the role of the Commission as the guardian of the Treaties in the process of the setting up of the CEAS. The proposal as a whole is fragmentary and is already containing a variety of measures which would further contribute to a dysfunction of the Dublin system. Additionally, the individual rights of asylum seekers would be significantly diminished if the recast proposal would be adopted in its current form.
Finally, neither the main practical questions (concerning transfers) nor the main legal questions are successfully addressed by the proposed changes. In my view, the main legal problem of the responsibility allocation mechanism lies in the fact that it was created before common standards were defined and that there is no central authority that actually has unifying tendency for the practice (i.e. there is neither a first instance authority nor an appeal body on the European level). From a more systemic perspective, the huge divergences of the national asylum systems contributed to the difficulties in operating the system. The Dublin system is currently a system of national asylum systems and not a Common European Asylum System (CEAS). For various reasons that are ultimately dependent on national traditions and the related set-up of the administrative systems, these divergences will remain even if the established common standards for the CEAS that are based on the 1951 Refugee Convention and ECHR have led to a certain degree of harmonisation between the Member States. In this context, the creation of a European Union Agency for Asylum would be a very important step for the system, although its creation seems currently completely unrealistic and illusory. Meanwhile, the difficult legal and practical questions of the Dublin system will remain a core feature of the debate on the CEAS in general. In this sense Dublin is very much alive.