The Reform of the Dublin III Regulation

EXECUTIVE SUMMARY OF A STUDY COMMISSIONED BY THE EUROPEAN PARLIAMENT

(Full text 72 pages accessible HERE

by Dr.  Francesco  Maiani,  (Associate  Professor,  University of  Lausanne)

 

A number of Member States and representatives of the European Commission are highly resistant to the idea that asylum seekers might be better placed to know where their best chances of integration are than any officials, and that this knowledge might be helpful for everyone in both the short and long term. Yet in practice, it seems that it is asylum seekers who  move  to  seek  asylum  and  Member States that  determine  their applications.” (Elspeth  Guild  and  Sergio Carrera, 2016)

If the Common European Asylum System (CEAS) is to become “sustainable and fair”, it needs  a fundamental  reform  of its  responsibility allocation  system.

The Dublin system is ineffective and inefficient, inflicts hardship on protection seekers and damages the efficiency of the CEAS. Until now, the Relocation schemes established in September  2015  have  also failed  to produce  appreciable results.

These negative results can be traced back essentially to three structural factors: (a) the unattractiveness of EU allocation schemes to protection seekers, due in particular to their strict “no choice of destination” philosophy; (b) the fact that, in the absence of effective solidarity schemes, Member States tend to engage in defensive rather than cooperative behaviour; (c) a heavily bureaucratic approach, producing complexity and delays, compounded  by  the intergovernmental   nature  of  responsibility allocation  procedures.

Going from Dublin to “Dublin plus”, as proposed by the Commission in May 2016 (COM(2016) 270 final), is unlikely to solve any of these problems. In its normal operation, the system would remain essentially unchanged. It would thus be as unattractive as it now is for protection seekers. The response to applicants’ avoidance strategies would be essentially repressive, and judging from past experience this is unlikely to elicit widespread compliance. At the same time, the Commission’s proposals cut back significantly on applicants’ rights. They are at variance with key human rights guarantees on several points, and would downgrade protection standards in the CEAS. The proposal to restrict significantly Member States’ discretion under the Dublin system is also likely to set the Dublin  system  on  a  collision  course with  the   European  Convention  on  Human  Rights.

Dublin IV would probably aggravate current imbalances in responsibilities among Member States. In addition to retaining and expanding the “irregular entry” criterion, it would (a) concentrate extensive “gatekeeper” responsibilities on application States – in theory the border States; (b) concentrate on application States the responsibilities to examine most applications, including through shortened “take charge” deadlines; and (c) cement such responsibilities through the repeal of all clauses foreseeing the cessation of transfer of responsibilities among the Member States. The proposed “corrective” mechanism would leave the aforementioned “gatekeeper” responsibilities on application States, while probably being too cumbersome to re-allocate the other responsibilities more effectively than  on-going  relocation  schemes  do.

 

This last observation can be applied to the Dublin IV Proposal as a whole. While simplifying Dublin procedures in several respects, the proposal fails to address the main causes of delays and complexity: reliance on intergovernmental procedures and on involuntary transfers, liable to give raise to extensive litigation. Even the allocation procedure under the “corrective” mechanism – purportedly designed to relieve “overburdened” States – epitomises administrative complexity by accumulating procedural stages before the applicant is placed in  a  status  determination procedure.

If Dublin IV is to conform to human rights standards, many of the Commission’s proposals will require several amendments, detailed below. If it is to bring improvements, further amendments will  be  required.

If the EU is to have an effective responsibility allocation mechanism, a fundamental change of direction is required. Experience indicates that attempting to “allocate” persons without their consent, according to pre-determined criteria, is unworkable and comes at the expense  of ensuring effective and swift  access  to status  determination.

In order to have a workable system, it is necessary to forgo ambitions of producing predetermined allocative results – fair or unfair – and focus instead on minimising the time, effort and coercion required to place the applicant in an asylum procedure. In this perspective, the allocation system – alone or in conjunction with other CEAS instruments – should: (a) elicit the cooperation of protection seekers; (b) defuse Member States’ incentive to engage in defensive behaviour; and (c) drastically reduce bureaucratic complexity  and  coercion. Within  this general   template,  three  models are examined here.

“Free choice” is the ideal-type of the “light” allocation system. It presents so many advantages (including preventing irregular movement and smugglers’ activities in Europe) that  it  should  not be discarded  without  serious consideration.

Should “free choice” be considered infeasible, a “limited choice” model could be progressively  constructed starting  from   a stripped-down  Dublin  system  (“Dublin  minus”).

“Dublin minus” – i.e. the current system, without the criteria based on residence and entry – would entail a radical simplification while producing nearly identical distributive results to the current system. It would already constitute a distinct improvement. Just like the current system, however, it would incite applicants to avoid identification and engage in irregular movements, and States to engage in defensive behaviour. To reduce these effects, the system could be amended so as to give a range of politically approved choices to applicants, based on much-expanded “meaningful link” criteria and on the permanent offer  of  reception  places  from  “under-burdened”  States.

As the experience of the 1999 Humanitarian Evacuation Programme suggests, such a consent-based system might perform far better than strictly “no choice” systems such as the  September  relocation  schemes.

“Light” allocation systems would facilitate early identification, reduce irregular movements within the EU, and liberate resources for the really important tasks of the asylum system: to provide dignified reception, to identify persons in need of protection in fair and effective procedures, and to return in dignity those found not to be in need. Like any responsibility allocation system, they would of course need accompanying measures. Indeed, there are three types of reform that the EU should engage in regardless of what responsibility-allocation  system it chooses.

 

First, it is indispensable to guarantee to protection seekers and beneficiaries in every Member State the full enjoyment of the rights recognised by international and EU law. In this respect, monitoring the existing standards seems more urgent than reforming them. In addition to renewed activism on the part of the Commission, the Proposal for an EU Asylum Agency (COM(2016) 271 final) might bring an important contribution in the form of enhanced monitoring and capacity assessment. The progressive centralisation of services supporting status determination might also improve convergence and constitute an effective  way  of pooling resources.

Second, financial solidarity should be considerably strengthened. Indeed, there is a strong case for placing on the EU budget, suitably expanded, asylum-related expenses that are currently placed on national budgets – identification, registration, screening, reception and processing of the claim. Such costs are distributed asymmetrically and are incurred by Member States in the provision of a collective good benefitting, to some extent at least, all others. Their centralisation might prevent under-provision, defuse incentives to engage in defensive behaviour, and contribute to raising reception and protection standards where this is most needed, contributing to reducing secondary movements. The progressive centralisation of costs would not preclude maintaining EU funding in a capacity-building perspective, as under the Asylum, Migration and Integration Fund (AMIF), nor introducing financial incentives in  support  of e.g.   EU-sponsored  allocation  or  relocation  schemes.

Third, introducing real mobility rights for protection beneficiaries would make responsibility allocation more sustainable – especially under systems not granting full free choice to applicants. It would facilitate acceptance of a less than ideal initial allocation, improve integration prospects and self-reliance for beneficiaries of protection, and possibly defuse the fears of some States of first application of facing, over time, unsustainable responsibilities.

Continue reading 

TABLE OF CONTENTS

  1. INTRODUCTION 
  2. THE EXISTING ACQUIS AND ITS IMPLEMENTATION 

2.1.   The Dublin System                                                                 

  • The basic features  of  the Dublin  system
  • The Dublin system  in  practice

2.2.   EU Relocation Schemes                                                        

  • The basic features  of  EU  relocation  schemes
  • The September 2015  relocation  schemes in  practice

2.3.   Investigating the Causes of Past Failures                           

  • Introductory remarks
  • Root cause  #1:  neglect  for  protection  seekers’ motives and  agency
  • Root cause  #2:  unmitigated  conflict of national  interests
  • Root cause  #3:  cumbersome  intergovernmental  procedures
  • Lessons to be  drawn  for the reform  of Dublin  III
  1. AVENUES FOR REFORMING THE DUBLIN SYSTEM 28

3.1.   The Commissions Dublin Plus Approach                      

  • Context and  philosophy  of  the  Dublin  IV  proposal
  • Proposals to  “streamline” the Dublin  system
  • The “corrective mechanism”

3.2.   Dublin IV: a Critical Appraisal                                              

  • The Dublin IV  approach:  fair, sustainable and  efficient?
  • The Conformity of Dublin IV to  Human  Rights
  • A summary of  the  main points

3.3.   In Search of an Alternative: from Heavy to Light Systems                                       

  • “Light” systems:  philosophy, virtues  and  (purported)  risks
  • Three models:  free  choice,  limited  choice, Dublin  minus
  • “Light” systems and  emergency  situations
  • Accompanying reforms:  convergence,  solidarity, and free  movement
  1. CONCLUSIONS AND RECOMMENDATIONS
    ACKNOWLEDGEMENTS
    REFERENCES                                                                                        

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s