The Dublin Asylum System: An Old Challenge for the New European Executive

The Dublin Regulation (Reg 604/2013 or “Dublin III”), in force since 1 January 2014, is one of the regulations that has been developed for matters of asylum. The topic found momentum with the adoption of the Treaty of Lisbon in 2009, which broadened the competences of the EU in terms of asylum issues. According to Art. 78 of the Treaty on the Functioning of the European Union (TFEU), a common policy on asylum can be developed through ordinary co-legislative procedure (between European Parliament and Council). Although there has been progress towards a common and supportive asylum system, it is being questioned by several States, and even institutions such as the European Parliament. The 2015 refugee crisis exposed the flaws of the current system, in particular its inability to handle a sudden increase in the number of people in need of protection. On 4 May 2016, the European Commission presented a legislative proposal to reform Dublin III and add a corrective allocation mechanism. However, it is stalled in the decision process, partly because of the prevailing uncertainty in EU policy.

What is Dublin III?

This regulation was developed to improve the efficiency of the asylum system between the EU Member States. Dublin III establishes hierarchical criteria to identify which State is responsible for the asylum application. According to Chapter III, family bonds have to be considered first. Criteria such as a recent possession of a visa or a residence permit in a Member State, or whether the applicant entered the EU irregularly or regularly are also relevant. The Regulation also establishes that applicants have only one chance to apply for asylum, and a negative decision is automatically recognised by all Member States. Applicants may be transferred from one State to another once the responsibility is clear.

Why does it NOT work?

The system is inefficient in avoiding asylum applications in a country other than the one assigned, as well as in complying with transfer requests between Member States. It is also unbalanced because although it establishes a series of hierarchical criteria to establish responsibility for asylum seekers, most of the processes are initiated in the country of arrival. It has generated much criticism for its inefficiencies, the unequal distribution of responsibility, as well as for the lack of commitment it demonstrates to the basic principle of solidarity between States and the resultant overload faced by border countries. One of the main objectives of establishing predetermined requirements was to avoid asylum shopping and orbiting asylum, in other words, to prevent applicants from choosing the most attractive country for themselves or from applying in any State they choose. Movements of applicants inside the Schengen area, so-called secondary movements, are of additional concern to the States.

As seen in the table below, by 2018 four States (Germany, France, Greece, and Spain) received about two thirds of the applications (67%) and according to the 2017 data, 24% of the total applications resulted in a request by one EU Member State to another Member State to take over responsibility. Transfer are not mandatory, however. These numbers show how inefficient the system is: very few countries receive a large amount of applications, and then initiate the transfer to another Member State as they do not consider themselves responsible for resolving the petition.

Source: Eurostat

What are the alternatives?

Proposals for the renewal of the Dublin Regulation (the so-called Dublin IV) include new elements to solve some of the problems mentioned above, while maintaining the existing criteria for determining which EU country is responsible for examining an asylum application. The European Commission proposed three major innovations: Firstly, the creation of a new automated system to improve data on the number of persons resettled by a State. Secondly, the adoption of a reference key to determine when and how a State is under disproportionate pressure. And last but not least, a fair mechanism to alleviate the pressure. This mechanism will apply automatically when a State is over the pressure limit and all the applications submitted afterward will be reallocated across the other Member States. If a Member State does not accept the reallocation, a contribution of €250,000 per applicant must be paid.

The European Parliament (EP), through its LIBE Committee, also gave suggestions for a new Dublin Regulation. In its report, the EP suggested that asylum seekers who have a “genuine link” with a particular Member State should be transferred there. This would mean changing the first criterion regarding the family link. The EP also suggested stronger consequences for Member States that refuse to accept the reallocation of applicants by limiting these States’ access to EU funds. Although the Parliament’s LIBE committee position is clear and has been adopted since the end of 2017, the Council of the European Union is still unable to reach a position due to some States (Hungary, Slovakia, Poland, and Italy) that have expressed reasoned opinions about the compliance of the proposition with the principle of subsidiarity and about how competences should be shared between the EU and Member States.

Is there room for understanding?

Over and above the inadequacies in the protection of rights of the applicants that are clearly demonstrated in the asylum systems of different countries, the system is economically unsustainable. Thus, remodelling the system is necessary to make it more efficient and balanced. To what extent political differences can be overcome is still an issue to be resolved and one of the great challenges of the EU and its new executive. A true creation of a common asylum system and a commitment to the procedures for all the States would be a cornerstone of a new EU asylum policy. The balance between responsibility and solidarity is still the Achilles heel of a system that has suffered from great defects since its birth. An innovative and pragmatic answer is needed before another crisis hits the EU borders. If a real common and solidary policy is the goal, we need to think in new terms and approaches rather than using old, symbolic politics. If migration policies are just a symbolic tool, then we must ask ourselves if the EU itself is capable of coping with a new massive arrival of people at its borders or if it will leave bordering States and vulnerable migrants to their fate.

Elsa Fernando Gonzalo is a PhD student in the International Public Law department at the University of Salamanca, and she holds a grant from the Spanish Regional Government (JCYL). Her research field is the external dimension of the European Union´s migration policy and her doctoral thesis focuses on cooperation with third countries. “Being an Erasmus student and living abroad has completely changed the way I see the world and gave me invaluable tools and experiences”.