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: DailyMail.co.uk
*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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