Thursday 21 January 2016

The Dublin Regulation: Is the End Nigh? Where should unaccompanied children apply for asylum?

Steve Peers*

Two recent developments have raised controversy as regards the EU’s Dublin III Regulation, the set of rules which determines in which Member State asylum-seekers must make their asylum application. First of all, a British judgment yesterday stated that the UK was responsible for the asylum claims by unaccompanied children in France (in particular the Calais ‘Jungle’), who have a family member in the UK. Secondly, a press report indicated that the Commission is planning to propose a fundamental overhaul of the Dublin rules in the near future. Both developments have alarmed some commentators, but thrilled others. I will examine the legal and political context of each of them in turn.

Unaccompanied minors

Many describe the Dublin III Regulation as allocating responsibility to the ‘first Member State’ which an asylum-seeker entered. This is true for most asylum-seekers; technically it’s the first Member State which they entered without authorisation which has responsibility, but this amounts to the same thing. However, there are exceptions. In particular, since the very first version of the Dublin rules (the Dublin Convention), there have been special rules which apply where the asylum-seeker has a family member in one Member State. These were expanded in the Dublin II Regulation, among other things to add special rules where the asylum-seeker is an unaccompanied minor. Those rules were altered a little further in the Dublin III Regulation.

What are the rules for unaccompanied children? The priority is to place them in the same Member State as a family member. First of all, the Regulation gives responsibility to a Member State where they have a ‘family member’ (defined as a parent, spouse or child) or a ‘sibling’ who is ‘legally present’. Secondly, it gives responsibility to a Member State where they have a ‘relative’ (defined as an adult aunt, uncle or grandparent) who is ‘legally present’. In this second case, there are further conditions: there must be an individual examination to check that the relative is able to take care of the child, and the allocation of responsibility must be in the best interests of the child.

In the absence of a family member or relative, an unaccompanied minor – unlike any other asylum-seeker – in effect has a choice of which Member State to apply in. The CJEU has confirmed (in the case of MA) that this applies even after the child has already applied in one Member State. A subsequent proposal to confirm and extend this rule (which I discussed here) seems to be blocked for now. But this rule was not at issue in yesterday’s judgment.

Despite the consternation it caused in some quarters, that judgment is primarily straightforward. Once it’s clear that the asylum-seeker is a child who has family or relatives as defined by the EU rules in a particular Member State, the child must be transferred to that Member State to apply for asylum there. Sometimes it’s hard to prove the age of the child or the link to family or relatives, but it doesn’t seem like that was the case here (it’s hard to be certain, since the full text of the judgment is not reported yet).

One of the asylum-seekers in the case was not a child, but was dependent on a younger brother due to the effects of trauma suffered in Syria. His situation was covered by a separate clause in the Dublin III Regulation which says that ‘dependent persons’ should stay with a child, sibling or parent who can take care of them. This is a binding rule (‘shall normally keep or bring together’), as established in the CJEU judgment in K and confirmed in the preamble to the Dublin III Regulation.  

Why was the judgment controversial? First of all, there is a particular legal point: the rules in the Regulation only take effect for those who have applied for asylum, following which the Member State where they have applied is obliged to contact the responsible Member State and arrange for the transfer to that State. The judgment appears to circumvent that process, simply requiring the UK to admit the four plaintiffs despite the absence of any action by the French authorities. It appears from press reports that at least one of the applicants did have some proof of having applied for asylum in France, but it is not clear if all of them did. This will probably be the basis of an appeal which the UK government might make – although the applicants will be allowed into the UK in the meantime.

On the face of it, this is a valid legal objection: the proper procedures were not followed. Having said that, the judgment is indisputably consistent with the substantive intention of the drafters of the law: to ensure that children (and dependent persons) who apply for asylum are with people who can look after them. Since all the plaintiffs are Syrian, there seems little doubt that they intend to apply for asylum (and perhaps had done already) – or that their application will be successful (the refugee recognition rate for Syrians being over 90%). 

More fundamentally, the plaintiffs alleged that the French government did not (or would not) process their asylum applications. If this is true, the French government is in breach of EU law, and it is arguable that its breach should not be allowed to stand in the way of applying the rules on asylum responsibility. But this line of argument raises complex legal questions about how to prove such fault and who has the burden of proving it – and whether such a fault justifies a procedural shortcut at all. It would be best if these issues are sent to the CJEU to clarify (it can use an emergency procedure to decide on cases involving children). That would also make it more obvious that these issues do not just concern the UK and France: there may be unaccompanied children seeking asylum in Greece who seek to join family or relatives in Sweden, for instance.

Secondly, there are political objections on the grounds that UK immigration law has been infringed. It should be noted that the UK chose to opt in to the Dublin III Regulation – while it opted out of almost every other EU immigration and asylum law of the last twelve years. The attraction for the UK was the possibility that some asylum-seekers could be sent back to other Member States – which they are. But the rules are reciprocal: sometimes they are bound to mean that the UK has to accept asylum-seekers from other Member States. In practice, most or all such cases will involve family members. And quite frankly, anyone who argues that in principle an unaccompanied child who is seeking asylum from war or persecution should remain in squalor in Calais or Dunkirk, rather than join a family member legally in the UK who can look after him or her, is devoid of basic humanity.

What is the impact of the ruling? It cannot affect anyone who has not got family members in the UK, subject to the conditions mentioned above. In some cases, it will be hard to prove that the applicant is a child, or that the person they seek to join is a family member. The procedural aspects still need to be clarified. But for anyone else, as I discussed last summer, the French government quite rightly remains responsible for dealing with their asylum applications and providing humane living conditions, or for returning those who have not applied for asylum or whose applications have failed to their country of origin.

Plans to amend the Regulation

The key feature in the reported plans to amend the Regulation is the intention to replace the ‘first country’ rule with a set of criteria allocating responsibility to Member States based on some kind of ‘fair shares’ principle. Presumably some rules allocating responsibility based on family members will remain, perhaps with amendments. No further details are known, and it should not be forgotten that the Commission proposal would have to be agreed by both the European Parliament and the Council. But I will focus on two key issues: the feasibility of the new system, and the impact on the UK.

First, the feasibility has to be assessed in light of the EU’s existing rules on ‘relocation’ of some asylum-seekers who reached Greece or Italy. Two measures were adopted in September, and I discussed them in detail at the time. Four months on, there are significant problems applying these rules in practice, as the Commission’s regular reports indicate (see also the UNHCR’s assessment). A tiny fraction of the asylum-seekers have been relocated, due to the slow development of ‘hotspots’ for registering applications in Greece and Italy, as well as the reluctance of most Member States to receive asylum-seekers. Some Member States have flat-out refused to apply the system, and Slovakia and Hungary have challenged its legality (see the analysis of Slovakia’s challenge by Zuzana Vikarska here). The ‘hotspots’ are arguably not properly considering the asylum applications of many asylum-seekers who are not due for relocation (see analysis by Frances Webber here). While the Commission has proposed already to amend the Dublin III Regulation to make emergency relocation rules permanent, the Member States are objecting to this (see the leaked record of discussions here).

Overall, then, the relocation system is manifestly not working. It is therefore hard to see why the Commission could imagine that it could somehow work if it became the general rule, rather than the exception as at present (the relocation Decisions only apply to 160,000 asylum-seekers over two years, a small minority of the numbers that might be expected over that time).

Secondly, the UK, as already noted, has an opt-out from EU immigration and asylum law. This opt-out applies also to amendments to legislation that the UK already takes part in. Indeed, the UK has opted out of most of the ‘second phase’ of EU asylum legislation, even though it opted in to all the ‘first phase’ measures. So it is flagrantly not true to say that the UK could be ‘forced to accept more refugees’ under any new proposal. It could simply opt out.

However, that opt out could have consequences. The Protocol on the UK opt out says that if the opt out from an amendment to an existing law in which the UK participates makes the existing law ‘inoperable for other Member States or the Union’, that existing law can be revoked as regards the UK. This is a high threshold, and this clause has never been invoked to date. The UK was able to opt out of the relocation decisions, and of the recent proposal to amend Dublin III to add a permanent emergency system, without triggering this clause (as I discussed here). However, a complete overhaul of the Dublin system, replacing the core rules on the allocation of asylum responsibility, is likely to trigger it.

In that case, the UK would face a choice: (a) opt in to the new rules, and face more asylum-seekers as a result, or (b) opt out of the new rules, and face more asylum-seekers because the existing Dublin rules would be terminated for the UK. For those (like the UK government) who would not like to see more asylum-seekers, neither option is appealing. But it is likely that there would be a far smaller increase in asylum-seekers if the UK opts out. Recent statistics collated by Open Europe suggest that the UK only returns about 700 asylum-seekers a year to other Member States pursuant to the current Dublin Regulation in recent years; and yesterday’s ruling may mean that this may have to be offset against flows in the other direction. On the other hand, one estimate in The Independent suggests that a ‘fair shares’ rule could mean that the UK is responsible for 85,000 asylum-seekers a year.

Finally, what would be the impact of ‘Brexit’ on asylum-seeker numbers? Since the current Dublin rules are internal EU legislation (they ceased to take the form of a ‘Convention’ back in 2003), the UK would no longer be covered by them as from Brexit Day. The EU could sign a ‘Dublin’ treaty with the UK, but I rather doubt it would do so, for the reasons I discussed here). So Brexit would increase the numbers of asylum-seekers in the UK, assuming that the current Dublin rules are then still in force, and still result in a net removal of asylum-seekers from the UK. If there are new Dublin rules, and the UK has opted out of them, then Brexit would have no effect. Brexit would only reduce the number of asylum-seekers if the Dublin rules are still in force and have resulted in a net inflow of asylum-seekers to the UK.  In any event, Brexit would mean that unaccompanied children seeking asylum are left alone in other Member States rather than joining parents or other family members who are legally in the UK and able to look after them.

Barnard & Peers: chapter 26
JHA4: chapter I.5
Photo: children in the Calais ‘jungle’
Photo credit:

 *Disclosure: I have done some work as a sub-contractor for a contractor advising on the evaluation of the Dublin III Regulation and the impact assessment on its replacement. However, while I am bound to confidentiality as regards that work, I was paid for my independent advice and remain free to express my views on the current or future Dublin system. 

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