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by Marcello Di Filippo, Associate Professor of International Law and Coordinator of the Observatory on European Migration Law, University of Pisa (Italy)

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(Click here  to hear Francesco Maiani’s (Swiss Member of the Odysseus Network) intervention at the LIBE Committee of the European Parliament on this issue – 4:10 – 22:20)

While the largely failed relocation scheme of 2015 is still in force, the European Commission has put forward a proposal for revising the Dublin III Regulation. Since comments have already been made in the blogosphere (see Hruschka on this blog and Gauci) and a comprehensive study on the need to reform the system has been recently released by a member of the Odysseus Network and presented to the LIBE Committee of the European Parliament (see Maiani), this entry will not provide a general description of the proposal and focus instead on some selected aspects by putting forward some proposals to make the Dublin system less dysfunctional.

A plea against taboos and ‘conservative’ options

Many EU documents repeatedly underline that the Dublin system is a “cornerstone” of the Common European Asylum System (CEAS). Indeed, taking into consideration Article 78(2) TFEU, there is a need to organise the distribution of responsibilities  since the competence for assessing claims and the  provision of protection lie with Member States.  Despite this, we should not let Dublin become a taboo, impermeable to discussions on its past and current contents. If the so-called ‘cornerstone’ is ill-conceived, the overall structure of the CEAS becomes unstable, unfair and ineffective.

Drawing from private international law terminology, we can say that the main objective of Dublin is to prevent positive and (most commonly) negative conflicts of jurisdiction, by rapidly determining a single responsible Member State (MS). Decades of legal thinking and state practice show that any set of rules (both domestic or international) allocating jurisdiction should be based on rational criteria and on a reasonable degree of connection (i.e. genuine link) between the competent State and the situation at stake. Although due consideration must be given to the fact that “asylum jurisdiction” is a peculiar field of law and that the interests at stake are specific to this area, decision makers must take into account the principles of rationality, fairness and compliance.

More than twenty years of implementation of the Dublin system (see Guild and othersHruschka and Maiani) showed that, as currently framed, Dublin simply does not work, both in normal periods and in times of crisis. Among other things, the fact that no reasonable room is given to consider asylum seekers’ preferences or their prospects for integration creates an evident trend against spontaneous compliance and towards secondary movements.

The deficient system generates high costs of different natures, such as:

(a) waste of public money in repressive actions and in administrative as well as judicial procedures not producing durable results;

(b) diplomatic tensions between Member States;

(c) profit-making for criminal networks providing smuggling services;

(d) social exclusion and frustration for asylum-seekers (potentially leading to human rights violations or various forms of criminality);

(e) lack of integration, with increased costs for social services and public expenditure.

Against this background, a fresh and innovative approach was expected when the EU institutions finally recognised in 2015 the need for a general overhaul of the Dublin III Regulation. However, the proposal that is now on the table does not envisage an overall reframing of the system, but a rather modest introduction of several corrections (some more significant than others) to a bad architecture that is not fundamentally questioned.

The criterion of the “Country of first entry” or “the irrational rationale

The first point of the proposal deserving severe critique regards the way in which the Commission treats the allocation criteria and, in particular, the insistence on the questionable criterion of the country of first entry. The explanatory memorandum of the proposal underlines that, according to some MS, the criterion of first entry must be preserved and that alternative connecting factors (such as personal preferences) would add confusion and give the wrong signal that asylum seekers can choose their country of final destination. In the meantime, it is acknowledged that other MSs and relevant stakeholders (for instance UNHCR, para. 6, at 7;  specialised NGOs such as ECRE and others) called for a different vision, focusing on the preferences or characteristics of asylum seekers (in  view of their speedy and satisfactory integration).

Yet, the explanatory memorandum merges the personal preferences and the characteristics of asylum seekers in the same concept, and uses the same rationale to discard both the ‘free choice’ approach and the ‘personal characteristics’ approach. To make my point clear, merely subjective preferences are different than objective personal characteristics (liable to increase prospects of integration in the host MS): while the ‘free choice’ approach may be swiftly questioned as a solution for allocating people (although it should not be summarily discarded, as recently advocated by Maiani, at 46-48), the verification of a reasonable connection with a country is a totally different issue. Even more surprisingly, the Commission seems to ignore the indications from other parts of EU secondary law. For instance, Recital No. 34 of Decision No. 2015/1601 (establishing provisional measures in the area of international protection for the benefit of Italy and Greece) clearly states that:

“The integration of applicants in clear need of international protection into the host society is the cornerstone [sic] of a properly functioning CEAS”.

Following the same logic, the provision on the safe third country concept (defined in the Asylum Procedures Directive) underlines that the latter may be applied only if due regard is given to the existence of “a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country” [Article 38(2)(a)].

This being said, let us try to follow the reasoning of the Commission. What is the rationale behind the first country of entry criterion? Commentators agree on the fact that the drafters of the Dublin Convention and of the subsequent Dublin II and III Regulations intended to establish a linkage between the allocation of responsibility in the field of asylum and the respect of MS obligations in the protection of the EU external borders (as confirmed by the same communication of April 2016, at 7). Put in another way, if a MS  lets an asylum seeker enter its territory, then it would be logical (sic!) to establish responsibility for assessing the asylum claim and, if the outcome is positive, to define that MS as the new place of residence for the beneficiary of international protection.

However, it is well known that the principle of non-refoulement is applicable on entry regardless of the efficiency of checks at the external borders. Likewise, the combined effect of current EU visa policy, EU carrier sanctions regimes and the nature of flows to Europe unavoidably overburdens frontline States (the number and identity of which may change in time). Thus, we can question whether the above mentioned rationale is…. rational! Or whether it is in line with the principle of solidarity and fair sharing of responsibility recognised in Article 80 TFEU. Would it perhaps sound malicious to advance the idea that this criterion and especially its continued maintenance are simply the result of the (undeclared) will of some MS to put the responsibility and the related burden of international protection on other MS?

A “genuine link” approach: not a panacea, but surely deserving of further enquiry

With the aim to be constructive, this article puts forward another approach for giving more weight to objective links between an asylum seeker and a given MS, which would favour his or her speedy and efficient integration. A series of objectively verifiable elements connecting an applicant with a certain MS can be proposed in order to establish the relevant jurisdiction, according to a ‘genuine link’ approach (see also here for further elaboration on this methodological proposal and on its potential benefits both for MSs and asylum seekers):

  • Wider family links: The Commission proposes to broaden the scope of ‘family members’ so as to include siblings, which is a positive step. In additional to that, taking into account the presence of relatives in a MS deserves a more careful consideration. In many countries of origin, relatives are as important in family life as core family members, due to the cultural concept of family and related moral obligations of mutual assistance and care. Besides, in occasions where the original nuclear family may be dispersed or deceased, the only form of family life available to the asylum seeker may be represented by a cousin, an aunt, a nephew or a grandparent. It is clear that this widened concept of family might be seen as “too generous” by MS, but considering wider family links for Dublin purposes should be at least further discussed. Some categories of relatives could also be included in the alternative criteria of verified sponsors (see below);
  • Language skills: Some States whose official language is widely spoken outside of Europe (for instance, English or French) might fear to be penalised by this criterion. Nevertheless, it could pragmatically work even for indicating a MS where the population in general and civil servants in particular are usually fluent with a second language (for instance, English in some northern European countries). In any case, a saving clause would apply in case of numbers exceeding a reasonable quota (see below);
  • Previous study or work experience in a given MS, or other forms of regular stay: If compared with the lack of any relevant “contact” with a national community, a previous regular residence is usually able to create a potential for integration (unless it is ascertained that during that stay anti-social behaviour occurred);
  • Verified private sponsorship: Apart from relatives, private individuals – be they EU nationals or third country nationals (TCN) regularly residing in the EU – may have a strong and verifiable personal link to an asylum seeker. In a globalised world, with plenty of transnational activities and personal mobility, a person may act as a sponsor for a TCN, for instance due to previous professional or personal exchange developed during a stay in Europe or in third countries. A similar reasoning might apply to non-profit organisations or firms, subject to some eligibility criteria. In the different setting of legal avenues to reach the EU, the Fundamental Rights Agency recently argued that private sponsorship is one of the most promising and under-exploited means (see here, at 6). Similarly, the Commission showed an interesting openness towards such an option (see the Communication of April 2016, at 15-16). This possibility may cause some concern about possible risk of abuse, false declarations or coverage of illicit smuggling networks, but it should at least be the object of a serious and open minded discussion.
  • Existing legal tools facilitating the recognition of professional qualifications: The network of bilateral treaties already in force between MS and third countries of origin requires proper evaluation, because this could offer pragmatic solutions where the then protected person could easily play the role of an economic actor, instead of depending on social assistance.

One may question which of these factors is more suitable and which pre-requisites should be established to put them in place, but new paradigms need to be seriously explored in order to alter the current overall unsatisfactory performance of Dublin.

In the same vein, the quantitative impact of the proposed approach might be doubted. It must be acknowledged that no precise data are available and that no serious estimate may be done as to the impact of this proposal. Nevertheless, it is very likely that a large number of secondary movements is motivated by the intention to reach a country where some connections exist, so there is an evident normative need to set this empirical phenomena into a more credible legislative framework. The alternatives are to turn a blind eye (with no solution to the current problems to be expected) or to increase the sanctions regime for asylum seekers not complying with the current rules (a scenario that is even more debatable and problematic in the perspective of fundamental rights of asylum seekers: see  the post of Hruschka and the in-depth study of Maiani). By applying this new approach, some MS that are already under strain might become the responsible MS. To avoid undesired side effects, a saving clause might be connected to the overall system (see below).

Filters and corrections: the strange idea of treating persons as objects

As mentioned, the proposal does not change the main criteria for asserting jurisdiction, but it does introduce some novelties. Two of them seem particularly relevant here: the process at the early stages of the procedure (a kind of “pre-Dublin stage”) and the corrective mechanism, conceived as an evolution of the idea of a permanent scheme of relocation in times of emergency.

This pre-Dublin stage consists of a systematic assessment of the admissibility of the asylum claim, having regard to various deflective concepts (such a safe country of origin, first country of asylum, safe or ‘super safe’ third country, and a security screening of the applicant). These enquiries must be conducted by the first country of entry: only if the claim stands admissible, the enquiry into the Dublin criteria is carried out.

It must be observed that the two main actors (the asylum seeker and the national authorities) in this procedure are placed in a relationship of conflict: little chance seems to be left to the asylum seeker to actively participate in the procedure, and public officers are unavoidably perceived as hostile by him/her. This ‘applicant-unfriendly’ environment will not stimulate spontaneous compliance and full account of personal stories, thus generating systemic deficiencies.

The corrective mechanism is interesting, although in the current formulation is rather puzzling. A centralised system of registration of asylum claims will be put in place. Additionally, a reference key (composed of each MS’ GDP and population, each given 50% weighting) will determine which share of claims are assigned to each MS. The system will monitor in real time during the year the correspondence between the total number of asylum claims lodged in the EU and the division of them among the various MS. If a certain MS (MS#1) receives more than 150% of its assigned quota, then the corrective mechanism is automatically triggered. Additional asylum seekers will then be automatically assigned to other MS which are below their capacity (MS#2). If MS#2 refuses to take charge of an asylum seeker, a high amount has to be paid (€250,000 per person). The idea to impose a sanction (although the proposal uses a different vocabulary) on non-collaborative MS is not bad in principle, but it may be doubted that such an amount is proportionate.

Apart from that, what is really questionable is that the asylum seeker plays no role in this corrective procedure, and that the proposal does not indicate a method to identify MS#2. Maybe it is the MS which in that moment has the lowest performance of its assigned share? Or another MS? And in the latter case, will this be decided by a computer applying a casuistic algorithm? The proposal is incredibly ambiguous on this crucial point, and this “blind lottery approach” must be severely criticised. Again, people are treated as the object of procedures impinging on their lives: is all this human, rational and fair?

Finally, it must be taken into account that – even under the corrective mechanism – the overburdened State (MS#1) is, in any event, obliged to process the pre-Dublin stage and to conduct a dialogue with the assigned State regarding public security issues. To put it differently, there is no immediate relief for the overburdened State. Only after the person is moved to the automatically assigned MS#2, will this country verify the applicability of the Dublin criteria and then proceed with the subsequent steps (assessment of the claim or Dublin transfer to a MS#3). Thus, there is the possibility of a second mandatory movement: once again, is this rational? And cost-effective? And humane?

Time for ambitious pragmatism: Some ideas for EU policymakers

Drawing on the Commission proposal, it seems possible to improve some elements and reframe others. The purpose of the following suggestions is to reconcile the Dublin system with the authentic cornerstones of the CEAS (see Article 78(1) and also Article 80 of the TFEU) and with basic principles of rationality and fairness, both for MSs and applicants. To put it clearly, the proposal of the Commission is not all bad but it needs a robust correction.

Firstly, a permanent assessment of reception capacities (to be conducted through a reference key) and a centralised collection of all asylum claims (to be conducted as soon as possible) are highly needed. This idea of the proposal is good and should help to reduce instrumental and sterile political discussions. It is simply untenable that some MS must undergo a relevant pressure as frontline countries or as second-line favorite places of secondary movements while others give scarcely relevant support, or no support at all. It may be questioned which criteria should integrate the key and with which weight, but the overall idea is defensible.

Secondly, it is untenable to include a correction to an inherently bad system: the main standard criteria must be changed (in a similar vein, see Gauci). A primary role must be given to objectively verifiable preferences: after verification of admissibility of the claim (with full guarantees for the concerned applicant), an asylum seeker should be allocated to a given MS according to (wider) family links and other genuine links (see above). There would not be a simple or unqualified free choice of the applicant (as advocated by some NGOs): the applicant would be obliged to specify why a certain country is preferred and verification would be conducted by the interested MS.

It may be questioned if this solution would produce lengthy procedures or an excessive administrative burden on the first MS of entry. Well, this country is already obliged to conduct significant administrative activity under the pre-Dublin phase: a file is created, human resources are employed, time is spent on this activity and an interview is conducted. Is it so absurd to insert at such an early stage an ‘extra’ procedure aimed at showing a friendly face to the asylum seeker? One should also take into account that this extra procedure would be greatly facilitated by the asylum seeker’s cooperation, and that a different scenario would probably lead to a form of legal challenge by the asylum seeker, or his/her absconding. Would this be cost effective and desirable from a systematic point of view?

In this scenario, the asylum seeker would be asked to actively participate and to give clear indications regarding the presence of family members and of other connecting factors. In the case of several connected MSs (a circumstance which is not so probable), the choice could be left to the applicant.

In order to reassure MS whose asylum systems have undergone or are facing severe pressure (e.g. Germany or Sweden), if the competent State is already over its quota, the asylum seeker would be assigned to another (less) connected country, or only as extrema ratio to the State with the lowest performance rate of its share. In case of refusal of this MS to receive the concerned person, a proportionate financial disincentive should be established.

With the aim to reduce possible tensions coming from asylum seekers or from MS, a certain degree of freedom of movement of the beneficiary of protection should be accepted. If after recognition of refugee status or subsidiary protection by the designated MS, the person receives an effective job offer in another MS and security checks are fulfilled, the holder of international protection should have the possibility to accept this job offer, thus leading to a better allocation of the workforce. In this case, the issue should be raised as to whether, after voluntary establishment in another MS, protection duties should continue to bind the original MS or should be transferred to the second one, or whether such duties should simply cease.

Finally, a corrective emergency-mechanism should be conceived only for sudden and massive inflows and for supporting extremely precarious national asylum systems.

Do all these proposals look too innovative and unconventional? We all know perfectly what will happen if the Dublin system as it stands is maintained, or if only the limited ‘corrections’ set out in the Commission proposal are introduced. Should we wait for the next political crisis of the EU? Why not try to think of pragmatic and innovative way which could avoid tensions between MS, limit profits for smugglers as well as space for human rights abuses, avoid unnecessary sufferance, save public money and use human resources in a better way?