EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Francesco Maiani, Centre for Comparative, European and International Law (CDCEI), University of Lausanne & Constantin Hruschka, Max Planck Institute for Social Law and Social Policy, Munich

Introduction

A new chapter is being written in the troubled history of responsibility-allocation in asylum matters among the Member States. The Dublin system, (hastily) declared dead at the height of the crisis’ of 2015, has been (belatedly) judged unfit for purpose by a whole range of actors including the Commission and Parliament. A fundamental reform has therefore been placed on the agenda as matter of urgency.

Except that the Commission proposal of May 2016 (examined previously on this blog), did not propose a fundamental reform of the system. To the contrary, it retained all the structural elements that doomed the system to failure: its disregard for the needs, aspirations and life circumstances of applicants; its ‘asylum lottery’ effects; its unfairness towards a select few Member States – border and ‘first application’ States; its naïve trust in the willingness of Member States to cooperate in sharing responsibilities; its heavily bureaucratic approach to responsibility-allocation. If anything, the ‘Dublin IV’ proposal aggravated the defects of the system by accentuating its coercive character and its unbalanced distributive effects, while attaching to it an unworkable ‘corrective allocation mechanism’ (see one study commissioned by the European Parliament  and another one ).

Reception has not been good among commentators. Steve Peers, for instance, equated the proposal to a gruesome attempt to get a pig airborne, and coined the phrase ‘Orbanisation of EU asylum law’ for the occasion. Council and Parliament have not been enthusiastic either. While the Council is still mired in internal disagreement, the European Parliament has adopted as basis for inter-institutional negotiations a document that is highly critical of the Dublin IV Proposal: the ‘Wikström report’

The report is meant to constitute a ‘bold but pragmatic proposal’. Its goal is a ‘fundamental and structural reform’ resulting in a system ‘that will work in practice […] in times of normal migratory flows as well as in times of crisis’. Bold it is, without a doubt: the boldest official proposal ever submitted for the reform of responsibility allocation. While it retains important elements of the Dublin IV Commission proposal, such as the aversion against the ‘secondary movements’ of asylum seekers, it replaces the ‘sanctions-based’ approach of the Commission with an ‘incentives-based’ approach, i.e. a range of reforms intended to incentivise ‘both Member States and applicants […] to follow the rules’.

An exhaustive analysis of the report, including a full human rights assessment, would exceed the limits of this blog-post. We will instead focus on the model of responsibility allocation envisaged in the report, as it constitutes its most innovative side. Let us see whether it is indeed capable of ‘working in practice’ as claimed.

1. An ‘incentives-based’ model of responsibility allocation

The reform of the Dublin criteria

An important element of strategy pursued with the report is the reform of the Dublin criteria. The whole hierarchy of criteria is re-centred on the ‘genuine links’ that applicants may have with particular Member States. Thus, the family criteria are significantly expanded. The same goes for the criteria based on former residence and, perhaps less appropriately, on possession of a visa. A new criterion, based on former studies in a Member State, is introduced. Most critically, the criterion of irregular entry is deleted. In order to facilitate allocation according to the reformed criteria, a new ‘light procedure’ based on their prima facie application is introduced. This should help, in particular, to break the evidentiary deadlock that has hitherto condemned the family criteria to irrelevance.

The logic of these amendments is to encourage persons to apply in the first State entered into: they (should) remove the prospect of being ‘stuck’ in the first port of entry, and enhance the prospect of being transferred to a desirable destination. Much in the same logic, applicants are entitled to request the application of the discretionary clauses, and ‘sponsor organisations’ may ask the admission of an applicant – with his or her consent – to the Member State where they are based. However, Member States are left free to reject or even to ignore such requests. Past experience suggests that they will predominantly do so.

A further, far-reaching amendment to the hierarchy of criteria is the reform of the rule that applies by default when none of the criteria described above is applicable. This is a critical element of the system: the criteria have so far been applied in a minuscule proportion of cases, and even the expanded ‘genuine link’ criteria may be expected to have low statistical impact. Therefore, the ‘default rule’ is the one potentially applying to the largest number of cases. As the law stands, the State where the first application had been lodged is responsible. In order to break the incentives that this may create for applicants to travel on to their preferred destination, and in order to promote a fairer sharing of responsibilities among Member States, the ‘Wikström report’ would replace this rule with the automatic allocation of responsibility to the ‘least burdened’ State(s).

The permanent allocation mechanism

By becoming the default rule, ‘corrective allocation’ becomes a permanent feature of the system and not a ‘crisis’ mechanism as foreseen in the Commission proposal. In addition to its permanent character, the mechanism devised by the European Parliament differs from the one proposed by the Commission in two respects.

Procedurally, it is significantly streamlined. While the Commission proposal required the ‘allocation State’ to conduct a further Dublin procedure post-transfer, this feature is absent here: subject to a ‘security verification’, once a State is chosen as ‘allocation State’ it will have to accept the applicant and directly examine his or her application. In a bid to further boost the efficiency of the mechanism, the report proposes that the (future) EU Agency for Asylum (EUAA) be entrusted with the execution of the transfer. It is not made clear, however, where the EUAA would find the resources to do so, on what authority it would manage the coercive aspects of the task, and which court would hear the unavoidable complaints against it.

Substantively, the allocation mechanism incorporates two new features intended to promote acceptance and cooperation on the applicants’ side:

• First, an element of choice is inserted in the allocation process: the determining State is to ‘shortlist’ the four least-burdened States at the moment of the application, and the applicant is to be given a short deadline to choose among them. As a form of ‘punishment’, this choice would be denied to applicants who enter the Union irregularly without applying in the first State, and to those who are transferred on the basis of the ‘light procedure’ when it surfaces that the prima facie application of the criteria was wrong.
• Second, applicants are allowed to register as groups of maximum 30 persons. Family members and relatives are to be ‘allocated’ together in all circumstances. Other applicants are to be allocated together ‘to the extent possible’.

Some of these points are open to criticism, e.g. the idea of punishing applicants when the ‘light procedure’ misfires independently from any fault on their part. Some are symbolic gestures: past Dublin practice unequivocally shows that guarantees given ‘to the extent possible’ are destined to remain a dead letter.

Conceptually, however, the idea of giving applicants a choice as to their destination (and company) is nothing short of revolutionary, and breaks at last the ‘no choice’ taboo that has until now reigned uncontested in Dublin-dom. Still, restricting applicants’ choice to four States – likely none of them ‘preferred destinations’ – seems a sure-fire way of depriving this bold reform of its intended effects. Indeed, if the objective is to promote acceptance while at the same time ensuring a fair distribution, why not give applicants the choice among all the Member States that are below quota at the moment of the application?

New incentives for Member States

The ‘Wikström report’ also aims to incentivise the other stakeholders – Member States – to play by the rules. More specifically, it aims to make sure that border/application States carry out their ‘gatekeeper’ task properly. To this end, several steps are taken:

• The deletion of the irregular entry criterion, and of the default rule assigning responsibility based on the place of the first application, would of course remove powerful disincentives to identifying arriving migrants and registering the applications of those that seek protection;
• Similar to the (hotly contested) ‘pre-procedure’ of the Dublin IV proposal, the report foresees a ‘filter’ whereby that application States will have to screen out and take responsibility for applicants raising security concerns or ‘manifestly unlikely’ to qualify for protection. An effort is made, however, to ‘carefully calibrate’ the filter, so as to avoid excessive burdens for application States. Therefore, instead of placing on the application State all ‘safe country cases’ as the Commission proposal does, the new ‘filter’ would only apply when: (a) no family and dependency links determine responsibility, (b) no protection-relevant issues have been raised by the applicant, and (c) there are no other indications that he or she may qualify for protection.
• The report places on the EU budget several costs that care currently borne by the application State, i.e. the costs of reception and transfers in the Dublin procedure, as well as the costs of reception for applicants ‘manifestly unlikely’ to qualify. These are costs incurred for providing ‘public services’ to the EU as a whole, so the logic of the reform is sound. Surprisingly, however, other ‘public service’ costs are left on the first application State (e.g. reception costs for screened out ‘security cases’, as well as processing costs for the Dublin procedure and for ‘screened out’ applications).
• Along with the ‘carrot’, the report also foresees a ‘stick’: Member States who fail to register incoming arrivals, and decline EU assistance to do so, are to be ‘excluded’ from the allocation mechanism. Since allocation is the ‘default rule’ in the system foreseen in the report, it is wholly unclear what would happen to the applicants to whom a ‘genuine link’ criterion does not apply. Indeed, little thought seems to have been given to the consequences. Conceivably, applicants would be left in a limbo and the ‘defaulting’ State could be further encouraged to ‘wave’ them through.

Of course, over and above these (dis-)incentives, border and application States would only play the game if they trust the allocation mechanism, especially in times of crisis. Swift allocation of those that arrive and are registered would, in fact, be their only insurance against being quickly overburdened by ‘first line’ reception responsibilities. In this respect, the report suggests to introduce ‘disincentives’ – in the form of restricted access to, and use of, EU funds – also for Member States who would refuse to cooperate like the Visegrad States did under the 2015 relocation schemes. It is difficult to say whether such disincentives would be enough.

Should allocation fail to deliver for this or other reasons, however, the system would quickly founder in disorder as pressure to defect and ‘wave through’ would build on ‘gatekeepers’. So can allocation work in practice?

2. A system that will ‘work in practice’?

No matter how important the strengthened protection for family and other ‘genuine’ links, the revolutionary element of the report is automatic quota-based allocation as soon as the ‘genuine link’ criteria have been found not to apply. This innovation would fundamentally change the system from one that is essentially based on ‘responsibility’ (for entry) to one that is essentially based on ‘solidarity’. The gains in terms of distributive fairness between Member States would (theoretically) be considerable, while the expansion of ‘genuine link’ criteria would also make the system fairer for applicants. However, the system would probably prove unsustainably ‘transfer-heavy’.

Under the current system, transfers are rare. Most frequently, lack of accepted evidence pointing to a responsibility criterion leaves responsibility with the State where the application has been lodged. Or else, time-limits for Dublin requests or transfers are transgressed and responsibility shifts to the State where the applicant is already present. Even so, Member States have been consistently unable to implement about two thirds of agreed transfers – just as they have been unable to implement most of the ‘relocations’ that had been agreed under the 2015 schemes.

Under the ‘Wikström report’, the number of transfers to be implemented would be far greater: allocation to another State would become the ‘default’ rule, and the responsibility-shifting effect of time-limits would be deleted in most cases. Without a massive (and therefore highly unlikely) increase of transfer capacities, ‘in limbo’ situations would multiply, and could only be ‘solved’ by a large scale application of the sovereignty clause. This, in turn, would heavily impact the stated fair-sharing objective.

These considerations seem all the more valid since under the ‘Wikström report’, most transfers would likely still have to be implemented without the consent of applicants. Indeed, the expanded ‘genuine link’ criteria would still probably apply in a minority of cases, and the positive ‘incentives’ to cooperate with quota-based allocation seem inadequate (e.g. the choice between the four least-burdened States, or group allocation ‘to the extent possible’). At the same time, the vast disparities that exist between the Member States – disparities in reception and protection standards, in economic opportunities, etc. – would make involuntary allocation unfair for applicants and evasion still attractive.

Similarly, it is far from certain that the system of incentives and disincentives designed to secure the cooperation of Member States would be effective. On the one hand, considerable costs would still be left on the State of application, as well as all the risks related to the (non-)execution of allocation decisions. On the other hand, allocation States would still have obvious incentives not to cooperate, and as noted, it is doubtful that the threat to reduce access to EU funding would be sufficient to counterbalance them.  

Short of being capable of attracting cooperation from the applicants and Member States in a majority of cases, the system would need to rely on coercion and heavy administrative procedures, that is on vastly increased financial and administrative capacities. This seems to be the least thought through aspects of the ‘Wikström report’ (and of the Commission proposal). Both seem to start from the premise that involuntary transfers on a large scale self-evidently will work, oblivious to the contrary evidence accumulated under both the Dublin system and the relocation schemes. Furthermore, neither the ‘Wikström report’ nor the Commission proposal justifies the massive increase in resources and time that would have to be devoted to the ancillary task of allocating and enforcing responsibility. Those resources would be subtracted from the fundamental aim(s) of the CEAS, i.e. to provide decent reception and to examine protection claims.

Finally, neither document proposes a credible answer to the question of how a manifold increase in the efficiency of transfers is supposed to come about. The barely sketched-out transfer of responsibilities to the proposed EU Asylum Agency merely appears to shift the problem while leaving unaddressed the core difficulty: that ‘moving’ large numbers of persons against their will, while respecting fundamental rights, is a daunting task, and quite possibly one that is not feasible.

All of these factors contribute to a system that is unlikely to work in practice, and likely to produce a significant proportion of ‘in limbo’ situations and secondary movements.

Conclusions

Overall, the ‘Wikström report’ sketches out a new model for the Dublin system. It is a step in the right direction, insofar as it attempts to take better into account the ‘genuine links’ that connect applicants and States, and even to give applicants an element of choice as to their destination. It also constitutes an attempt to move from unfair distribution ‘by default’ to a system that theoretically would lead to a fairer distribution of tasks and finances between Member States. As such, it is a clear signal against both the ‘emergency response’ model of the Commission proposal and the ‘no distribution’ model of the States that promote ‘flexible’ or ‘effective solidarity.’

Unfortunately, the report does not go far enough in its efforts to enlist the cooperation of applicants, while it leaves significant costs and risks on the few ‘first arrival’ and ‘preferred destination’ countries that are supposed to register protection seekers. A further, significant weakness lies in the sheer number of (predominantly involuntary) transfers that it would generate: probably unfeasible, and even if feasible destined to absorb an unjustifiable amount of financial and administrative resources.

That said, the ‘Wikström report’ is not the final word. Negotiations on the new asylum package seem still very much blocked by the paralysis of the Council that followed the Commission proposals from 2016. Indeed, the Commission roadmap of 7 December 2017 shows the extent of disagreement more than it gives guidance on timelines. Therefore, it remains to be seen if, and to what extent, the report of the European Parliament will influence the future shape of responsibility-allocation.

It could perhaps be hoped that the strong resistances to an allocation model such as the one proposed in the report might lead to its abandonment, and to an accentuation of the elements that could make responsibility-allocation truly fair and effective: (1) renouncing large-scale coercive transfers; (2) founding the allocation of responsibilities entirely on genuine links and quota-based allocations that applicants would elect to accept, and (3) sharing money and capacities on an entirely new scale. If the ‘Wikström report’ will make this transition possible, it will indeed have contributed to a ‘fundamental and structural reform’ resulting in a system ‘that will work in practice’.