On 4 May, 2016, the European Commission published a series of proposals in the field of Home Affairs, including proposed revisions to the contentious Dublin Regulation. This package of proposals signals the start of a process of revising the Common European Asylum System (CEAS), the recast instruments which came into force over the last two years. The need for such an upgrade is evidenced by the EU Member States’ disappointing response to the so-called ‘migration crisis’, but is also necessitated by fundamental flaws in the legal output stemming from the political compromise that led to the second version of the CEAS. Analysis of the EC’s proposed revisions reveal, however, that they would do little to remedy these flaws and are unlikely to gain support, not least due to a lack of solidarity among Member States.
Before evaluating the proposal, it ought to be noted that, of all the regional developments in the field of forced migration, the EU has by far the greatest law making competence (when compared to other regional bodies), as well as some of the more advanced instruments. The principles of protection that guide a regional response are incorporated in a series of binding instruments covering both substantive and procedural issues. This builds on the right to asylum explicitly guaranteed in Article 18 of the European Charter of Fundamental Rights. The last 12 months have seen significant pressure put on both European solidarity and the right to asylum from the number of applications received and from the response of both the EU (as an institution) and its individual Member States.
The Dublin System is possibly one of the most widely criticised elements of the CEAS—it is also widely misunderstood by the public, misrepresented by the media and misapplied by States. Furthermore, it is a flawed instrument that places excessive burdens on the Member States at Europe’s periphery, ignores the asylum seekers’ desires (and the linked agency to move farther), and (wrongly) assumes equal levels of protection across the various EU Member States. The system’s application has restrictions applied from its own founding legislation and through decisions of both the Strasbourg and Luxembourg Courts. An official evaluation of the Dublin system (to which the Commission Proposal refers) found that the underlying aim of reducing secondary movements has clearly failed, with 24% of applicants in 2014 having already sought asylum elsewhere (this figure does not even include people who whilst having been in other countries were not formally in the asylum system). Moreover, the regulation has limited impact on the distribution of applicants within the EU, given that net transfers in Dublin procedures are very few. The recent proposal by the EC aims to address some of these weaknesses but, in my view, fails to do so effectively.