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.
TABLE OF CONTENTS
- 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
- AVENUES FOR REFORMING THE DUBLIN SYSTEM 28
3.1. The Commission’s “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
- CONCLUSIONS AND RECOMMENDATIONS