After Dublin – the urgent need for a real European asylum system
Michele Nicoletti
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Abstract
The Dublin regulation is a European Union legal instrument establishing a system for definitive identification of the participating State responsible for examining a particular asylum application. Since the system was introduced in 1990, however, the scale, nature and geographical focus of mass migration into the European Union have changed significantly. In addition, the distribution of asylum applicants between participating States is extremely uneven; the Dublin system is, however, not intended or capable of functioning as a " burden-sharing " mechanism to counteract this inequity, which on the contrary is exacerbated by Dublin transfers of asylum applicants. It has thus become a symbol of unfairness and lack of solidarity in European asylum policy. Furthermore, the Dublin system has given rise to serious violations of asylum seekers' human rights. The Dublin system is thus dysfunctional: ineffective and certainly inefficient in achieving its basic aims, and at an unacceptably high human cost and resource cost. Indeed, it is difficult to see how it could operate as intended. The Parliamentary Assembly should therefore propose a series of reforms to the implementation of the current Dublin system, the wider context in which it operates and on which it is dependent, and to the content of the Dublin regulation itself.
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Upon request by the LIBE committee, this study examines the reasons why the Dublin system of allocation of responsibility for asylum seekers does not work effectively from the viewpoint of Member States or asylum-seekers. It argues that as long as it is based on the use of coercion against asylum seekers, it cannot serve as an effective tool to address existing imbalances in the allocation of responsibilities among Member States. The EU is faced with two substantial challenges: first, how to prevent unsafe journeys and risks to the lives of people seeking international protection in the EU; and secondly, how to organise the distribution of related responsibilities and costs among the Member States. This study addresses these issues with recommendations aimed at resolving current practical, legal and policy problems.
ENHANCING THE COMMON EUROPEAN ASYLUM SYSTEM AND ALTERNATIVES TO DUBLIN
Upon request by the LIBE committee, this study examines the reasons why the Dublin system of allocation of responsibility for asylum seekers does not work effectively from the viewpoint of Member States or asylum-seekers. It argues that as long as it is based on the use of coercion against asylum seekers, it cannot serve as an effective tool to address existing imbalances in the allocation of responsibilities among Member States. The EU is faced with two substantial challenges: first, how to prevent unsafe journeys and risks to the lives of people seeking international protection in the EU; and secondly, how to organise the distribution of related responsibilities and costs among the Member States. This study addresses these issues with recommendations aimed at resolving current practical, legal and policy problems.
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His research focuses on the Europeanisation and Globalisation of law and public policies, in particular in the field of migration. 1 On the general features of the Dublin system see amongst others
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This report describes a Dublin System on the brink of a major crisis. The report examines the significance of the Dublin Regulation for the onward migration of asylum seekers within Europe, based on data collected in Norway, Sweden, and Germany from February to April 2015. Our findings from this period are currently confirmed and strengthened with the increasing numbers of asylum seekers coming to Europe. The purpose of the Dublin Regulation is to determine the Member State responsible for examining an application for international protection lodged in one of the Member States. It is crucial how the Dublin Regulation is applied, as this decides where migrants will live in the future. This research project aimed to identify the most important effects of the Dublin Regulation from the points of view of Member States as well as from migrants’ perspectives. The sharing of responsibility for asylum seekers in Europe is controversial. While the Dublin Regulation is the only current framework for allocating responsibility for individual asylum claims among the European countries, it is not designed to be an instrument for the general sharing of responsibility between Member States. The absence of adequate instruments for such sharing has detrimental results for Member States, the European Union, and migrants alike.
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Against the background of the recent migratory crisis in Europe, this Delmi report aims at examining and taking stock of the Common European Asylum System (CEAS). It asks what has been achieved and what has failed, focusing on two of the most pressing challenges: (1) the unequal distribution of asylum seekers across the EU Member States and the search for a more equitable sharing of responsibilities; and (2) the wide variations regarding Member States’ decision-making practices on asylum applications and the need to achieve more harmonised recognition rates. We label these two aspects “solidarity” (regarding equitable responsibilitysharing) and “fairness” (regarding the approximation of asylum decisions). The first empirical part of the study explores a number of proposals regarding responsibility-sharing for asylum seekers among the EU Member States, which have been brought up by policy-makers and researchers. 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It turns out, however, that while an overall trend towards higher protection rates can be identified, not least due to the increased numbers of asylum seekers from war-ridden countries such as Syria, Member States have made very little progress regarding more harmonised decisions. Analysing national recognition rates for selected countries of origin (Syria, Afghanistan, Iraq, Pakistan and Kosovo), the authors find that a measurable approximation of national asylum outcomes has not been achieved. Extreme variations have persisted over many years, especially in the cases of Afghanistan and Iraq. In 2016, the chances for an asylum seeker from Iraq to receive protection in Hungary and the United Kingdom was below 13 percent, compared to 100 percent in Spain and Slovakia. The case of Afghanistan is even more outstanding, with protection rates in 2016 oscillating between 1.7 percent and 97 percent. Responsibility-sharing and harmonised asylum outcomes are key interdependent factors for the functioning of a Common European Asylum System. First and foremost, an approximation of asylum decisions is a precondition for a successful responsibility-sharing system as it would be unfair to allocate asylum seekers to a Member State where they would have very little chance to receive protection, if the likelihood of protection would be much greater in another Member State. Vice versa, a fair mandatory distribution of asylum seekers would encourage national governments to abide by the common standards and not use restrictive asylum practices as a method to reduce their attractiveness as countries of destination. Further to responsibility-sharing and the approximation of decision-making on asylum, the study briefly looks into other factors that also need to be taken forward to achieve a truly Common European Asylum System, such as greater harmonisation and cooperation regarding reception arrangements for asylum seekers and procedural standards, and a stronger role for the current European Asylum Support Office (EASO). The authors also address the long-standing and fundamental dilemma that asylum applications can only be lodged from within the territory of a Member State or at its borders while it is, at the same time, illegal for most protection seekers to actually get there. The study argues that resettlement and humanitarian admission programmes need to be expanded, and that more legal pathways to protection in Europe should be opened. Finally, the report presents some concrete ideas for working towards more harmonised asylum outcomes and a workable responsibility-sharing system. On asylum decision-making, the authors propose an enhanced role for a future EU asylum agency, which would include a “fire brigade” function to identify, analyse and mitigate situations in which Member States’ asylum recognition rates for applicants from specific countries of origin differ too strongly. The study also proposes “joint processing” exercises, where officials from several Member States examine and decide asylum applications lodged by nationals of a specific country together. The study presents four main future scenarios for policy-makers to contemplate. These scenarios include (1) the status quo, the continuation of the currently used Dublin system including its responsibility-allocation criteria; (2) a “Dublin plus” scenario, in which the Dublin rules would be complemented by a new, quota-based corrective allocation mechanism; (3) a new quota-based allocation system that would replace the current Dublin criteria; and (4) finally a “free choice” system in which asylum seekers would be free to choose their country of destination. In the context of these scenarios or policy options, the study also discusses ideas regarding transition periods for “skeptical” Member States, options to move money instead of people by allowing Member States to ransom themselves, and the importance of intra-EU freedom of movement rights for those asylum-seekers who are granted protection. The authors argue that in the long run, a quota-based system in accordance with scenario number three appears to be the most coherent course of action, though this seems politically difficult to achieve and demands a high level of ambition from EU and national policy-makers. While the report is written from a European perspective and designed to be of relevance for all Member States, a special focus is applied on Sweden. The authors clarify, for example, what the effects of a fair distribution key for asylum seekers would be regarding the number of asylum applicants to be received in Sweden, and how Sweden positions itself regarding the extent to which asylum seekers from specific countries of origin are granted positive decisions. While Sweden has by far exceeded the quantitative responsibility for asylum seekers that it would have in relation to its population size and its economic power during the period 2008-2015, it suddenly underperformed in 2016 as the number of incoming asylum seekers plunged following the introduction of a number of restrictive measures. Regarding asylum decisions, Sweden’s practices have often been roughly in line with the EU average, meaning that they did not massively deviate from the mainstream EU approach to specific countries of origin. However, regarding two very significant countries of origin, the authors found interesting variations. Concerning Iraqi nationals, Sweden has been more restrictive than the rest of the EU over the entire period of analysis from 2008 to 2016. While it had a comparatively generous approach towards asylum seekers from Afghanistan, it was significantly stricter than the EU mainstream in 2015 and 2016.
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