The Dublin IV Recast: A Missed Opportunity

On 4 May 2016, the European Commission submitted a proposal for a recast of the Dublin system[1]. This proposal formed a part of the European Commission’s broader political agenda to fundamentally reform the Common European Asylum System. According to the European Commission’s April 2016 policy plan, the 2015 refugee crisis had exposed the ‘structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy… and of the ‘Dublin’ arrangements in particular.’[2]

In response the European Commission declared that action was required in establishing a sustainable and fair system for determining the Member State responsible for asylum seekers. This policy brief examines whether the proposed recast has resolved the core problems with the Dublin system, namely the unequal system of responsibility distribution. The policy brief argues that the recast constitutes a missed opportunity, as the core weakness of the system remains unquestioned. Rather than reforming the rules on responsibility allocation within the EU, the recast introduces an additional policy layer to the Dublin system through a new crisis mechanism. It also seeks to externalise responsibility to third countries through new inadmissibility assessments.

The 2015 Refugee Crisis: Window of Opportunity?

In 2015, the European Union (EU) was confronted with a sudden and unprecedented inflow of over one million asylum seekers.[3] This constituted the largest inflow of persons seeking international protection since the end of the Second World War, and was almost double the number of persons who arrived during the Balkan crisis in the 1990s. However, at the core of what is commonly termed Europe’s ‘refugee crisis’ was not just the unprecedented number of arrivals, but the complete failure of the EU’s asylum system to provide adequate policy instruments to respond to such a mass inflow. In particular, as a result of the EU’s controversial Dublin rule, which designated asylum responsibility to the first country of entry, frontline countries such as Greece and Italy were placed under significant asylum pressure to effectively register and process the large arrivals of asylum seekers. The system eventually collapsed with the surge of secondary movement across the Western Balkan route as asylum seekers sought refuge in northern member states.

Crisis signifies not only the failure of a particular policy, but can also offer a window of opportunity for change. External shocks or unexpected external events can challenge the effectiveness of existing policies and lead to significant policy re-evaluation and innovation. In response to the Dublin system’s failure in 2015, the European Commission declared that the existing system based on the first entry rule was outdated and ‘would remain unsustainable in the face of continuing migratory pressure.’[4] Adopting a more political approach, the Commissioner for Migration declared that the European Commission was determined to pursue an ‘ambitious reform agenda.’[5]

Preserving the status quo on responsibility allocation

Despite the recognition and stated intent for a far reaching reform of the Dublin system, at this particularly critical moment the European Commission decided to maintain the existing rules on responsibility allocation. The decision to preserve the status quo on the responsibility criteria, which ‘does not take the capacity of member states into account, nor does it aim for a balance of efforts’[6] has simply reinforced the central weaknesses of the system. It is also inconsistent with the European Commission’s criticism that the effectiveness of the Dublin system is ‘undermined by a set of complex and disputable rues on the determination of responsibility.’[7]

The European Commission’s solution has been to compensate for this asymmetrical distribution by introducing a new crisis prevention and management instrument; the corrective allocation mechanism (CAM). The mechanism would function in a similar way to the emergency relocation schemes adopted in September 2015. Once a member state’s asylum capacity reaches its ‘crisis’ threshold of 150%, any new asylum arrivals would be automatically relocated to another EU country. According to the European Commission, the mechanism was to mitigate against any significant ‘disproportionately resulting from the application of the responsibility criteria.’[8]

The 150% thresholds constitutes what the European Commission describes as a member state’s ‘fair share.’ This fair share relates to a reference number given to each member state which is based on two criteria with equal weighting; population size and GDP. However, the threshold can been criticised for being unduly high that even in times of crisis it may not be triggered and so would be of no structural benefit.[9]

The European Commission’s goal of creating a crisis measure also demonstrates a lack of foresight. Framed as a crisis mechanism, the CAM does not consider the long term structural changes to migratory flows that often develop gradually, in which the regional conflicts will continue to produce high numbers of refugees and continue to place pressure on frontline countries.

Importantly, the introduction of a CAM is a clear admission by the European Commission that the Dublin Regulation will, in practice, lead to imbalances in asylum distribution and therefore requires a corrective tool to alleviate the unequal pressures on member states.

Overall, the recast proposal demonstrates a lack of policy innovation as the existing rules and therefore existing problems remain unquestioned. In addition to the clear element of path dependency on the responsibility criteria, the proposal also introduces new provisions which worsen the disproportionate pressure on frontline countries and reinforces the EU’s agenda on externalising the boundaries of responsibility to third countries.

Externalising the boundaries of responsibility: the safe third country principle

The recast introduces new admissibility assessments to be conducted before the Dublin responsibility criteria is applied. The Regulation seeks to establish an ‘obligation for the member state of application to check whether the application is inadmissible, on the grounds that the applicant comes from a first country of asylum or a safe third country.’[10] These responsibilities include identifying applications, registering claims, carrying out admissibility screenings and taking responsibility for inadmissible applications and unfounded claims.

This has led to criticisms that, on the one hand, the recast would in fact exacerbate current inequalities in the distribution of responsibility among member states by designating new ‘gatekeeper’ roles to first entry states, which in practice would be the already overburdened states of Italy and Greece.[11]

On the other hand, the new obligation for member states to check whether the application is inadmissible on the grounds that the asylum seeker comes from a safe third country[12] reinforces the EU’s approach of relying on third countries to curb irregular movement, such as the EU-Turkey agreement[13].

The agreement was publically aimed at ‘breaking the business model of the smugglers and offering migrants an alternative to putting their lives at risk.’ To achieve this aim the agreement introduced a 1 for 1 resettlement program. All new irregular migrants crossing from Turkey into Greece from March 2016 would be returned to Turkey. For every person returned, a Syrian asylum seeker would be relocated to an EU member state. The agreement is grounded on the legal basis that Turkey is a safe third country, while the return of asylum seekers is grounded on the legal basis of an ‘inadmissible application.’[14] Inadmissible applicants are those who have already been recognised as a refugee in another country or otherwise enjoys sufficient protection there (first country of asylum) and those who have not already received protection in a third country but the third country can guarantee effective access to protection to readmitted persons.

The concept of safe third or host country is not a new phenomenon in the EU’s asylum policy. The relationship between the Dublin system and the safe third country principle stems as early as 1992 when the immigration ministers of the then twelve member states adopted a series of resolutions to tackle illegal migration[15]. The first of these resolutions established the principle of ‘protection elsewhere’[16], allowing member states to find a country of protection outside of the EU in which the asylum seeker could have claimed asylum, prior to designating responsibility according to the Dublin rules. Since a majority of asylum seekers transit through third countries other than the persecuting state, the safe third country principle effectively creates an external periphery and legal barrier to protection in the EU.

The difference with the recast is that it introduces this inadmissibility assessment as a mandatory requirement, instead of simply an option for member states. It is the next step in the EU’s efforts to reassert control over its external borders and prevent access to asylum procedures within its territory. By introducing this element into the Dublin Regulation, the EU is pushing the boundaries of responsibility outside of its territory and further blurring the lines between its internal and external policies on asylum and migration.

 

Works Cited:

[1] European Commission (2016), Proposal for a Regulation of the European Parliament and the Council, ‘establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodge in one of the Member States by a third-country national or stateless person (recast)’ 2016/0133(COD), Brussels.

[2] European Commission (2016) Communication from the Commission to the European Parliament and the Council, ‘Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe’ COM(2016) 197 final, Brussels.

[3] UNHCR (2015), ‘Over one million sea arrivals reach Europe in 2015’ UNHCR, 30 December 2015, Available from: http://www.unhcr.org/en-au/news/latest/2015/12/5683d0b56/million-sea-arrivals-reach-europe-2015

[4] European Commission (2016) no. 2, p. 4

[5] Avramopoulos, D (2016), ‘A firm but fair European Asylum Policy’ New Europe, 13 July, Available from: https://www.neweurope.eu/article/firm-fair-european-asylum-policy/

[6] European Commission (2016), no.1, p. 9

[7] European Commission (2016), no.1, p. 3

[8] European Commission (2016), no.1, p. 18

[9] European Committee of the Regions (2016), 120th plenary session 7-8 December 2016, Opinion on Reform of the Common European Asylum System, Rapporteur Vincenzo Bianco, CIVEX-VI/013;  European Council on Refugees and Exiles (2016), ‘The Road Out of Dublin: Reform of the Dublin Regulation’ Policy Note no. 2, October, Available from: https://www.ecre.org/policy-note-the-road-out-of-dublin-reform-of-the-dublin-regulation/

[10] European Commission (2016), no.1, p. 15

[11] Maiani, F (2016b), ‘The Reform of the Dublin III Regulation’ Study by the Directorate General for Internal Policies, Policy Department C for the Committee for Civil Liberties, Justice and Home Affairs; European Council on Refugees and Exiles (2016) no. 9.

[12] Article 3 (3) of the proposal for a Dublin recast

[13] European Council (2016) EU-Turkey Statement, 18 March 2016, Available from: http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/

[14] European Commission (2016) EU-Turkey Agreement: Questions and Answers, 19 March 2016, Available from, http://europa.eu/rapid/press-release_MEMO-16-963_en.htm

[15] Resolution on a harmonised approach to questions concerning host third countries’- SN 4823/92 WGI 1283 of 19/11/92; Resolution on manifestly unfounded applications for asylum- Ad Hoc Immigration Group, SN 4822/1/92 WGI 1282 of 2/12/92

[16] UNHCR (1995), ‘The Concept of “Protection Elsewhere”’, International Journal of Refugee Law, vol. 7, no. 1, pp. 123-127.