FULL STUDY PUBLISHED HERE
by Marcello Di Filippo (1)
ABSTRACT (Policy Brief – January 2016) (2)
The so called refugee crisis of 2015 had several effects, among which the definitive demonstration of the unsustainability of the Dublin system and the need of a radical change in the modalities of allocation of the competence for the exam of asylum claims in the EU.
The same credibility of the EU is at stake, as well as the capacities of national governments to manage the relevant flows reaching the Schengen area.
This Policy Brief provides sound arguments both for supporting the demand for a new legal framework, and for the determination of new criteria which combines fairness, realism, solidarity, cooperation.
A quota approach would be combined with a “genuine link” approach, thus trying to find a proper balance between the States’ interests and the point of view (and related behaviors) of asylum seekers, and also between the objections of human rights defenders and the concerns of European public opinion.
The need to turn the page with the Dublin age warmly suggests to choose, for the new proposed regulation, a nick name which evokes the features of the current historical (and dramatic) passage of European integration and our deep sense of belonging to a place where much part of our way of thinking and of being a society is rooted: Athens.
Having regard to the lessons learnt from decades of regulation of the determination of jurisdiction in civil, commercial and criminal matters, a first step to take is the adoption of a new conception for the role of the asylum seeker, who should be allocated to the State with which he/she holds a substantial link: the configuration of the relevant connecting factors (family relations; economic or social ties) should pay due regard to the empirical dimension of the phenomenon and to the need to avoid unnecessary sufferance and waste of public funds and time.
If the asylum seeker has genuine links with more States, a certain relevance to his/her free choice should be awarded.
Lacking any connection with a given country, the State with the lowest performance in fulfilling its reference quota should be the competent one. In the same time, an already overburdened country should be afforded the possibility to refuse responsibility, provided that some basic family ties are safeguarded. In such cases, a less connected country should be responsible, or the one less engaged in hosting asylum seekers and refugees, or as extrema ratio the country of first entrance or where the application is lodged. Whether an asylum seeker is allocated to a country where he/she does not have any substantial link and his/her asylum claim receives a positive outcome, the possibility of accepting a genuine job offer in another Member State should be admitted. This way, a partial freedom of circulation for work purposes could be recognized, but its exercise would relieve the first Member State by protection duties. As an accompanying measure, a system of financial incentives/disincentives for Member States should be conceived.
1 Associate Professor of International Law (University of Pisa; firstname.lastname@example.org), Member of the International Institute of Humanitarian Law (http://www.iihl.org), Coordinator of the Observatory on European Migration Law (http://immigrazione.jus.unipi.it).
The author is grateful to G. Beruto, S. Baldini and to the whole IIHL staff for their precious support, and to A. Baldaccini, C. Hein, S. Marinai, and E. Papastavridis for their valuable comments on an earlier version of this paper.
2 Policy Brief elaborated with the support of the Italian Ministry for Foreign Affairs and the International Cooperation (contribution awarded under Article 2 Law No. 948/82).