Enhancing the common European asylum system and alternatives to Dublin

SUMMARY OF AN EXTERNAL STUDY REQUESTED BY THE EP LIBE COMMITTEE (THE FULL VERSION IS ACCESSIBLE HERE – manuscript completed in July 2015)

Authors : Prof. Elspeth Guild, Dr. Cathryn Costello, Ms. Madeline Garlick, Dr. Violeta Moreno-Lax, with the participation of Dr. Sergio Carrera. (

Introduction: Key question

Throughout the evolution of the Common European Asylum System (CEAS), the Dublin system of responsibility allocation for the examination of asylum claims has been, it is claimed, its ‘cornerstone’. This is despite it being neither fit for its intended purpose nor designed as a solidarity measure, as multiple reports have demonstrated, including the 2014 study on New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection (the ‘2014 Study’). Judicial decisions have, in turn, highlighted that the Dublin system violates fundamental rights in several respects. Yet, the tendency is towards its ever more coercive application, regardless of the administrative, financial, and human costs.

Against this background, this study urges a fundamental rethink. The study is premised on the ethical and practical importance of avoiding excessive coercion of asylum seekers and refugees. Any reforms should bear in mind the significance of avoiding coercion, in order to foster trust between asylum seekers and refugees and the authorities, and to ensure that fundamental rights are respected, protected and promoted. Avoiding coercion is also important to deliver the workability of asylum systems and any responsibility allocation mechanisms that are developed to replace or complement the Dublin system.

The text proceeds in three sections. Section 1 demonstrates that refugees’ dangerous journeys to the EU are necessitated by EU visa policies and carriers’ sanctions. Alternatives means of ensuring safe and lawful access to the EU are set out. These are urgently required if we wish to avoid those seeking refuge dying on their way to Europe, whether in transit by sea or by land. Safe and lawful access would greatly reduce the demand for the services of smugglers, and thereby enhance trust between asylum-seekers, refugees and the authorities in EU Member States. It would also contribute to more planned and orderly arrivals in the territory of the Member States. Section 2 explores mutual recognition of positive asylum decisions, which would alleviate some of Dublin’s shortcomings and help realise the ‘common status valid throughout the Union’ the EU is obliged to adopt as part of the CEAS under the EU Treaties. Section 3 discusses alternatives to the Dublin system, thereby contributing to the wider debate on its replacement. 

1.Existing and alternative ways of ensuring safe and lawful access to EU territory

Death in the Mediterranean in desperate attempts to reach safety in Europe has become a recurrent horror of our times. In parallel, several studies reveal that, until the 1990s, there were relatively few drownings of migrants at sea, suggesting that the introduction of mandatory visas, carrier sanctions, and other border control measures, establish the conditions under which people engage in irregular, unsafe journeys, often using the services of smugglers.

This is the context in which the EU Agenda on Migration has been launched, proposing different initiatives, including military intervention to locate, seize and destroy the vessels employed for smuggling by sea. Such action raises serious legal, moral and practical concerns. A more viable and ethical way of fighting smuggling and reducing dangerous, deadly journeys would be to consider lifting or suspending visa requirements and/or carrier sanctions, at least for those nationalities in greatest need of refuge. A range of options to ensure safe access should be adopted, including humanitarian evacuation programmes; humanitarian visas (as distinct from extraterritorial processing, as discussed in some past proposals); increased resettlement and humanitarian admission; and more extensive use of existing migration visas for family reunification, work, study or research. The Temporary Protection Directive – which has never been applied to date – should be amended, following the outcome of its ongoing evaluation by the Commission. Such amendments should facilitate its use in situations of pressure due to large-scale arrivals and limited capacity, potentially through adjustments to the definition of ‘mass influx’ triggering its use, the procedure for deciding on its application, and solidarity provisions which would apply. These measures should be treated as additional to existing obligations regarding spontaneous arrivals.

It is unclear whether EU reception centres within Member States territory would enhance access to protection. Centralised, top-down approaches to asylum-seeker reception seem unlikely to enhance protection, particularly if linked to forced transfers, and risk increasing coercion. However, under certain conditions, such centres could be useful, if designed and implemented in full accordance with EU and international standards. Reception and processing of asylum-seekers outside EU territory, by contrast, raises a wide range of legal, practical and political questions that are yet to be addressed. If a model were to be developed that would comply with EU legal and fundamental rights obligations, it would need to be demonstrated that this would provide a viable alternative to dangerous maritime journeys for people in need of protection, in order to save lives and alleviate the pressure of arrivals at EU frontiers.

The role played by the private sector should be acknowledged and encouraged, both regarding search and rescue at sea, as undertaken by commercial shipping vessels and NGO rescue boats, pursuant to their obligations under the Law of the Sea, and concerning post-arrival arrangements of referral, reception and social insertion of persons in need of international protection. Their involvement in resettlement programmes through private sponsorship schemes would be particularly beneficial.

Support from other Member States and the EU to reception and first reception facilities in frontline Member States could potentially improve conditions at arrival at some external borders, including in Italy and Greece. The recent proposal of the European Council in June 2015, building on the Commission’s Agenda on Migration, foresees identification, registration and fingerprinting at hotspots, including for the purpose of determining who is in need of international protection. Such facilities could only be effective, appropriate and lawful if they ensure that the acquis standards are met, and practical arrangements put in place to guarantee effective access to procedures and adequate treatment for asylum-seekers and protection for those entitled to it. This would require ensuring that the facilities and processes carried out there are focussed on identifying those seeking protection, including those with special reception or procedural needs, and referring them to asylum procedures and conditions which fulfil the acquis requirements. Fingerprinting could take place, by non-coercive means; and referral should occur to facilities and personnel appropriate for dealing with medical needs, trauma, victims of trafficking and separated families, as well as people not claiming asylum, with the support of non-governmental experts where useful. Such first reception facilities and processes could not substitute for the full asylum procedure, which must be carried out in line with the Recast Asylum Procedures Directive’s standards, in order to identify those needing protection. Finally, such initiatives must take the opportunity to build capacity in the host Member States in the longer term, to enable it to meet its obligations more effectively in the future.

  1. Mutual recognition of positive asylum decisions

Mutual recognition is a key principle of EU law. However, in the field of asylum, only negative asylum decisions are subject to mutual recognition at present. Yet, the need for mutual recognition of positive asylum decisions within the CEAS flows directly from the Treaties, and is required to fulfil the obligation under Article 78 TFEU for the EU to develop a common policy on international protection, comprising a uniform status valid throughout the Union, as recalled in the EU Agenda on Migration. Unless that EU-wide status is granted by an EU agency, mutual recognition of national decisions is the means to achieve it.

The rationales for mutual recognition are manifold. On the one hand, it would reinforce the effective operation of the CEAS, in line with key EU principles of free movement of persons, fundamental rights, solidarity and fair sharing of responsibility for international protection. On the other hand, mutual recognition, coupled with mobility rights granted to beneficiaries of international protection at an earlier stage than is currently the case under the Long-Term Residence (LTR) Directive, would also address some of the many incongruities plaguing the Dublin system.

Two options are put forward to provide a clear basis for mutual recognition of positive asylum decisions. The first would entail an obligation on Member States to recognise the grant of international protection by another Member State from date of grant, thereby ensuring that status had EU-wide effects and validity as envisaged in the EU Treaty. The alternative, less ambitious model would involve the right to move after two years of legal and continuous residence in the granting Member State and would largely follow the LTR Directive criteria. Both systems would require legal reform and entail a number of advantages and limitations to be considered. Legislation to provide for transfer of protection is needed to address a gap in the current EU legal framework, and ensure legal certainty for States and for refugees exercising their rights under existing law, including the LTR Directive. This is required in distinctly from mutual recognition measures; although the introduction of legislative changes associated with mutual recognition would provide an opportunity to address the issue.

  1. Alternatives to the Dublin System and systems of financial imbalance

As set out in the 2014 Study, root and branch reform of the Dublin system is long overdue. But any reform must be guided by the importance of avoiding unnecessary coercion.

Several options are explored, including the possibility of instituting an EU Migration, Asylum and Protection Agency (EMAPA) with powers to make centralised, EU-wide decisions on asylum applications; a free choice approach, as supported by the UN Special Rapporteur on the Human Rights of Migrants, with the advantage of reducing complexity and maximizing asylum seekers’ agency and trust; the possibility of decoupling disembarkation and allocation of responsibility, suspending Dublin rules vis-à-vis coastal Member States, eliminating incentives to non-rescue; post-recognition relocation, following the EUREMA model, as an option to mitigate ex post some of Dublin’s shortcomings; or a system of distribution keys, for the distribution of persons, resources or both, aimed at enhancing the overall protection capacity of the EU through a more efficient and transparent system of allocation of responsibilities.

Financial Support, available under the AMIF, could be used to support initiatives to replace (or mitigate) Dublin. In addition, to address imbalances which are caused or exacerbated by significant arrival numbers and limited capacity, AMIF resources for emergency measures could be increased in future budgets to ensure that sufficient resources can be made available swiftly to address situations of ‘heavy migratory pressure’ as foreseen under the AMIF Regulation’s provisions. A further possibility would be the creation of a dedicated fund within the Unions budget to support Member States in covering costs which cannot be met from national or existing EU funds for implementation of asylum acquis obligations. An appropriate system for the allocation of such funds, along with rigorous programming, transparency and monitoring systems, would need to attend such a new fund.

In all cases, the dignity and agency of all migrants, asylum-seekers and refugees should be respected. In practice, this requires that any transfers avoid coercion, ensuring that a reasonable range of options is offered, and that reliable and trusted information is made available to inform decision-making. To ensure that they make well-informed decisions, mechanisms to ensure their participation in relocation decisions are essential.

The Commissions Relocation Proposal of May 2015 should be analysed in light of this ethical and practical commitment. Some notable shortcomings should thus be noted and avoided in any subsequent measure, such as the Commission’s planned legislative proposal in 2015 for a mandatory and automatically-triggered distribution system, foreshadowed in the Agenda on Migration. These include the limited territorial and temporary remit of the proposal; its reduced personal scope of application; the use of numerical indicators to select the beneficiaries of the scheme, which could obscure protection needs of specific groups and fail to reflect changing circumstances in countries of origin; and limited appeal rights, which risk incompatibility with effective remedy standards. The most striking factor is the lack of any input from asylum seekers in transfer decisions. Coercive transfers have contributed to the failure of Dublin.

Conclusions and Policy Recommendations

This study concludes that creating legal and safe avenues to access protection in the EU is essential, to avoid life-threatening journeys and deaths in transit, whether at sea or by land. Safe access would also diminish the burden on coastal Member States for search and rescue, reception, and processing of claims.

Dublin should be replaced with a non-coercive, solidarity-based, fundamental rights-compliant system of responsibility allocation for asylum claims.

In addition, irrespective of whether Dublin is maintained or replaced, a system of mutual recognition of positive asylum decisions should be adopted. This would open up free movement rights, allowing beneficiaries of international protection to join family and support networks or accept job offers that maximise opportunities for integration. At the same time, if maintained, Dublin should be applied in line with already existing obligations, guaranteeing fundamental rights and minimising coercion.

Key recommendations among those set out in full in Section 4 (Conclusions and recommendations) include the following:

Summary of recommendations: 1. Existing and alternative ways of ensuring safe and lawful access to EU territory

. The European Parliament should encourage the Commission to put forward a proposal for legislative changes to achieve the lifting of visa requirements and carrier sanctions on transport companies so that persons seeking asylum in the EU can arrive safely;

  • The European Parliament should encourage the Commission and the Council to consider alternative tools for safe access to the EU, including the adoption of measures on humanitarian visas. The opportunity should be utilised during negotiations on the Visa Code reform to clarify obligations to issue Limited Territorial Validity (LTV) visas for that purpose, in line with non-refoulement and the right to asylum;
  • The Temporary Protection Directive, currently under evaluation by the Commission, should be amended to facilitate its application to address significant arrivals of people needing protection, including potentially through adjustments to the definition of mass influx triggering its application; the procedure for applying Temporary Protection; and to strengthen its solidarity provisions.
  • The European Parliament should closely monitor the implementation of the resettlement programme approved in June for compliance with fundamental rights. It should also encourage the Commission and the Council to expand resettlement in the short to medium term, supplemented by a scheme for private sponsorship by NGOs, families and other civil society actors and organisations, in line with FRA recommendations. These elements could be put forward in discussions around the proposal foreshadowed by the Commission in the Agenda on Migration for a binding and mandatory legislative approach to resettlement after 2016;
  • The European Parliament should also encourage the Council and the Member States to facilitate wider use of family reunification by international protection beneficiaries already in the EU, including with extended family members, and the waiver of support, accommodation and health insurance requirements to assist their safe entry;
  • The European Parliament should promote a generous approach to the application of visa rules in other existing categories, including students, researchers, and workers. In particular, the opportunity should be seized following the public consultation on the future of the Blue Card Directive and in the course of its review, as announced in the European Agenda on Migration, for the adaptation of Blue Card rules to facilitate its wider application to people in need of protection;
  • Plans for humanitarian evacuation of specific populations in dire need of international protection should be explored at EU level. The European Parliament should encourage the Commission to submit such a plan, especially for Syrians, Eritreans, Somalis and Afghans, to reduce the need for dangerous and irregular movement across the Mediterranean and to the external land borders of the EU;
  • Proposals for support to first reception in frontline Member States and registration, identification and fingerprinting at hotspots, with the assistance of personnel from other Member States and EU agencies, could, if appropriately designed and implemented, ensure more effective access to procedures. However, to achieve a positive impact, these must operate in full compliance with the safeguards and requirements of the asylum acquis and international law and standards.
  • Past proposals for establishing reception centres and processing asylum claims outside EU territory raise significant questions of legal, practical and political feasibility which remain unaddressed. Such ideas, if formally put forward in the current context, would require careful reflection, in light of previous critical analysis, to ensure full compliance with the EUs legal and other obligations, and present a genuinely safe and viable alternative to dangerous maritime journeys for significant numbers of people in need of protection, which could impact on arrivals at EU frontiers.

Summary of recommendations:

2. Mutual recognition of positive asylum decisions

  • The European Parliament should encourage the Commission to put forward a proposal for legislative changes to achieve mutual recognition of positive asylum decisions in the near future. Such a proposal could foresee immediate mutual recognition, enhanced movement rights within the Union, and transfer of protection rights immediately after recognition. An alternative approach would involve mutual recognition and adjustment of the existing LTR framework to provide for LTR and rights to take up residence in another Member State after two years, providing for mobility in a more gradual way;
  • An EU instrument is needed on transfer of protection status, to address existing gaps in the legal framework, and ensure legal certainty for people with international protection seeking to exercise their rights to free movement within the Union.

Summary of recommendations:

3. Alternatives to the Dublin system and systems of financial imbalance

  • The European Parliament should acknowledge the failure of the organising principles of the Dublin system of allocation of responsibility for asylum seekers. The Parliament is encouraged to invite the Commission to put forward a proposal for legislative changes for root and branch reform of the Dublin System;
  • The European Parliament should ensure future legislation on responsibility allocation for asylum claims and/or distribution of asylum seekers avoids coercion. If free choice is not employed, then preference matching or other mechanisms to offer asylum-seekers a reasonable range of options should be explored;
  • The European Parliament is not a co-legislator on the current Commission proposal to relocate 40,000 Syrian and Eritrean asylum-seekers from Italy. However, it should work to ensure that political support for the proposal is reinforced, and that it is implemented without coercion;
  • Some features of the Commissions proposal of 27 May 2015 should be significantly adjusted in any general measure, such as the Commissions planned legislative proposal in 2015 for a mandatory and automatically-triggered distribution system. The European Parliament should ensure that future general legislation does not make use of past recognition rates to determine groups for relocation or leave unclear the necessity for transfers to be voluntary, based on proper information and presentation of a reasonable range of options.
  • The European Parliament should scrutinize national action plans under the AMIF, and ensure that the indicators for the measurement of the specific objectives in Annex IV of the AMIF Regulation are used to ensure transparency;
  • To address imbalances which are caused or exacerbated by significant arrival numbers and limited capacity, AMIF resources for emergency measures should be increased in future budgets to ensure that sufficient resources can be made available swiftly to address situations of heavy migratory pressure as foreseen under the AMIF Regulations provisions;
  • The European Parliament should examine whether legislative reform is needed to extend AMIF funding to support voluntary Dublin transfers (where the asylum-seeker wishes to join family in another Member State in particular) or other voluntary transfers;
  • The European Parliament should advocate for creation of an EU Migration, Asylum and Protection Agency, with powers to grant EU-wide protection status, and develop further methods of external monitoring of compliance with EU and international standards.

 

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