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.
The proposal maintains the existing criteria for assigning responsibility for an asylum claim but links it to a corrective allocation mechanism intended to relieve Member States experiencing a disproportionate ‘pressure’. This ‘corrective allocation mechanism’ is particularly interesting; it reflects an acknowledgment of a fundamental flaw within the system but does not address some of the concerns regarding a failure of effective solidarity. Given the current political climate and the clear message by Member States that any system of responsibility sharing is not viable, these should be seen as bold proposals by the EC, despite various flaws in principle and practice. Put simply, the proposal is to create a system of allocation that identifies a number of asylum applications for which each Member State should be responsible based on population size and gross domestic product. If a State is over 150% of the allocated number, then other States are obliged to share responsibility for asylum applications. States may suspend their participation in this system for a 12-month period but must make a hefty financial contribution to the State that takes responsibility in their stead.
The need for a Member State to be facing ‘disproportionate pressure’ (defined as being at 150% of its quota) means that the proposal falls short of an effective European system of sharing responsibility for what is quintessentially an issue for the EU as a Union. The proposal remains fundamentally unfair to those States at the borders of Europe. The allocation mechanism will only be triggered when the State is beyond 150% of its reference number, and will only be applied until such time as the number of asylum applications for which that State is responsible remains above this 150%. Conversely, for other States, the allocation of asylum seekers will stop when they reach 100%. What this means in practice is that border countries must take responsibility for 150% of their reference number, whilst other Member States will only be expected to reach 100%. This ameliorates the current situation, which is placing extreme pressure on the border States, but fails to effectively achieve a system of responsibility sharing across the board. This flies in the face of the idea that this is a European issue to which a European solution is needed.
When the relocation system was agreed (if that’s the right term) in 2015, a ‘carrot’ approach was used that would grant the Member State relocating an asylum applicant a payment of 6000 Euros. In the new proposal, the ‘stick’ approach is applied instead: States would be allowed to suspend their participation from the ‘corrective allocation mechanism’ for a period of 12 months, but would be obliged to make a 250000 Euro contribution per asylum applicant to the Member States who takes responsibility in their stead. This hefty contribution will deter States from suspending their participation, or cover the costs associated with reception in the Member State that ultimately takes the responsibility. I am sceptical that this system will meet the approval of the Council during negotiations. The option of States to suspend participation with a payment also creates a situation where States can buy out of the solidarity which fundamental to the European Union. This is problematic.
The corrective allocation mechanism is only part of this set of proposals. For the most part, the proposals maintain the criteria for assigning responsibility that is in the current version of the regulation. When it comes to the rights of, and guarantees to, asylum seekers, the Commission proposal provides room for cautious optimism on some issues. It proposes an extension to the definition of family member with a view to respecting the right to family unity. The definition of family member is extended to cover siblings as well as relationships created outside of the country of origin and in countries of transit. It also requires a best interest of the child assessment to precede the relocation of any separated child (Proposal Article 8(4)). The proposals also include improvements to some procedural guarantees including the right to be informed, the effectiveness of the right to a judicial remedy and a shortening of the time limits for detaining applicants under the regulation. The proposal also seeks to improve the efficiency of the system, tightening time frames and making the taking back of applicants an obligation on States.
However, the proposals also curtail other procedural guarantees: they would require accelerated status determination procedures to be applied to anyone who does not comply with the obligation of filing his/her asylum request in the Member State of first entry, reception services (other than emergency healthcare) would be withheld by any Member States in which the applicant is not entitled to be present, and Member States would continue with the Refugee Status Determination despite the person not being present in the country (Proposal Article 5). The message of these measures is that an asylum applicant who does not apply for asylum where she/he is expected to apply will be procedurally punished.
The aims of the new proposal are to make the system more efficient and to avoid abuse of the system by asylum applicants. The overall purpose of the revisions, and of the system more broadly, is to limit secondary movements (that is movements from one European country to another). The failure to consider the wishes of the applicants, and the obvious discrepancies in protection between EU Member States, will likely result in a continued failure to achieve that overarching goal.
In the meantime, developments over the last twelve months on issues around responsibility sharing do not offer much hope that these proposals by the European Commission will be attractive to Member States. Despite a loud outcry and political pressure, forced migration has not received a comprehensive European response. Rather, responsibility has been left to individual Member States. Solidarity has failed on at least three levels: between the EU Member States, between Member States and third countries, and between Member States and the men, women and children forced into perilous journeys into Europe. The current political climate makes for pessimism as to whether these proposals—already weak and perpetuating some of the unfairness of the current system—will receive the necessary support. Concerns raised during this week’s debate in the European Parliament by UK MEP Jean Lambert and Malta MEP Roberta Metsola, amongst others, are, I suspect, merely predications of more problems to come.