Professor Steve Peers, Royal Holloway, University of London
Photo credit: Ggia, via Wikimedia Commons
Just before Christmas, the
European Parliament and the Council (the EU body consisting of Member States’
ministers) reached
a deal on five key pieces of EU asylum legislation, concerning asylum
procedures, the ‘Dublin’ system on responsibility for asylum applications, the
‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum
seekers, and derogations in the event of crises. These five laws joined the
previously agreed revised laws on qualification of
refugees and people with subsidiary protection, reception
conditions for asylum-seekers, and resettlement of
refugees from outside the EU. Taken together, all these laws are intended to be
part of a ‘package’
of new or revised EU asylum laws.
I’ll be looking at all these agreements
for new legislation on this blog in a series of blog posts (see the agreed
texts here),
unless the deal somehow unravels. This is the sixth post in the series, on the Regulation
on Asylum and Migration Management – which I will refer to as the ‘revised
Dublin Regulation’ or ‘2024 Dublin Regulation’ for the sake of simplicity. The
previous blog posts in the series concerned the planned new qualification
Regulation (part 1), the revised reception
conditions Directive (part 2), the planned new Regulation on resettlement
of refugees (part 3), the revised Regulation on Eurodac (part
4), and the Regulation
on screening of migrants (part 5).
As noted in the earlier posts in
this series, all of the measures in the asylum package could in principle be
amended or blocked before they are adopted, except for the previous Regulation
revising the powers of the EU asylum agency, which was separated from the
package and adopted already in 2021. I will update this blog post as necessary
in light of developments. (On EU asylum law generally, see my asylum law
chapter in the latest edition of EU
Justice and Home Affairs Law).
The 2024 Dublin Regulation:
background
After an early failed attempt to
negotiate rules on responsibility for asylum-seekers in the broader Council of
Europe framework, a group of EU Member States agreed rules on the issue as part
of the Schengen
Convention in 1990. These rules were then extended to all Member States in
the Dublin
Convention in the same year. Subsequently, the Dublin system became part of
the EU development of the Common European Asylum System (CEAS): the first phase
of the CEAS included a ‘Dublin
II Regulation’, adopted in 2003, and the second phase included a ‘Dublin
III Regulation’, adopted in 2013. During the perceived ‘refugee crisis’,
there were two emergency decisions on ‘relocation’
of asylum-seekers (moving some of them from Italy and Greece, who were responsible
for their applications, to a different Member State, to reduce the burdens on
those frontline States), but they expired in 2017. The case law on the Dublin
II Regulation and Dublin
III Regulation is presumably still relevant to the 2024 Regulation, except where
the latter has changed the text of the rules.
The UK and Ireland both opted
into the Dublin II and III Regulations. The UK is no longer part of the Dublin
system, as a consequence of Brexit (for more on the Brexit angle, see my
comments for the UK in a Changing
Europe in 2020; note that since I wrote that, the UK has not negotiated any
replacement for Dublin with the EU as a whole or individual Member States,
resorting to the Rwanda policy instead). Ireland opted out of the 2024 Dublin
Regulation, but will remain bound by the Dublin III rules. (It may seem odd to
refer to the ‘2024 Dublin Regulation’, given that Ireland is not participating –
but then everyone still refers to the ‘Istanbul Convention’, despite Turkey
withdrawing from it)
Denmark is opted out of the
Regulation as such, but nevertheless participates in the Dublin system via a treaty
with the EU. There is also a Dublin association treaty with Norway
and Iceland, and subsequently with Switzerland
and Liechtenstein,
in parallel to those countries’ association with Schengen.
The legislative process leading
to the 2024 Regulation began with a proposal
in 2016, which I commented
on at the time. Since this proved particularly difficult to agree, a new
proposal was tabled in 2020 as part of the relaunch of the proposed EU
Immigration and Asylum Pact.
Substance of the Regulation
Like most of the new asylum laws
(except the resettlement Regulation, which will apply almost immediately), the
new Dublin rules will apply in two years’ time (so likely in spring 2026). But
certain provisions will have some effect earlier than that, as discussed below.
Furthermore, the Commission must produce a ‘common implementation plan’ to the
Council within three months of the Regulation’s entry into force (it is
planning to issue
this early, in June); Member States must produce national implementation
plans within six months of the Regulation’s entry into force.
In addition to amending the traditional
Dublin rules on criteria for responsibility for asylum applications, and also
the process for the transfer of asylum-seekers to the responsible Member State,
the 2024 version of the Dublin Regulation does two more (closely linked) things:
it sets up an overall framework for asylum and immigration management within
the EU, and establishes a solidarity mechanism to share the burden of
applications between Member States. This blog post examines in turn the amendments
to changes to responsibility, the related procedural rights, and the transfer
process, followed by discussion of the new rules on migration management and
solidarity, and concluding with an overall assessment.
Criteria for responsibility
As before, there is an underlying
obligation for Member States to consider asylum applications, which will be
considered by a single Member State responsible under the Dublin criteria; if the
criteria do not indicate a responsible Member State, the default is where the
application was registered (previously where the application was lodged;
the procedures Regulation details the differences between these concepts). It
is still possible to send an applicant to a ‘safe third country’ as defined by
the procedures law rather than apply the Dublin rules (on which see the CJEU
ruling in Mirza,
and the recent
Irish judgment finding that the UK was wrongly designated a ‘safe’ country
in this context). A new provision allocates responsibility if an asylum seeker
fails a security check: the Member State conducting the check then becomes
responsible for the application.
The exception to the Dublin rules
where there are serious human rights breaches in the responsible State (dating
back to the CJEU’s interpretation of the Dublin II Regulation in NS
and ME, and added to the text of the Dublin III Regulation), also remains.
But there are some amendments to the exception: it now solely refers to Article
4 of the EU Charter on Fundamental Rights (the ban on facing torture or other
inhuman or degrading treatment), rather than also to ‘systemic flaws in the
asylum procedure and in the reception conditions for applicants in that Member
State’; the clauses on dependent persons and the sovereignty clause (both
discussed below) must also be considered; and it is possible to consider all
Member States (not just those responsible according to the Dublin criteria) before
the Member State where the application was registered becomes responsible. The
former change is perhaps due to CJEU case law which confirmed that asylum-seekers
could also not be returned to a Member State where they faced an Article 4 risk
because of their individual situation, or because of a risk of severe material
poverty (see respectively CK
and Jawo).
On the other hand, the CJEU has rejected arguments that the exception applies where
there are flaws applying the qualification criteria in the other Member State (Cases
C-228/21 etc), although in some circumstances ‘pushbacks’ would be a ground
for challenging Dublin transfers (Case
C-392/22). (The position of those – other than resettled persons – who already
have international protection in one Member State but seek it in another Member
State due to human rights problems in the former State is governed by the procedures
Regulation).
A new provision in the 2024 Regulation
expressly obliges each asylum-seeker to apply in the Member State of first
entry. This has long been the popular conception of what the Dublin rules do anyway,
but in fact they previously only referred to obligations for Member States,
not asylum-seekers – although of course this will often have amounted to a de
facto obligation for asylum seekers in practice, to the extent that Member
States attempted to enforce the rules. As a derogation from this new rule,
asylum seekers must apply in a Member State that gave them a residence document
or visa; if that residence document or visa has expired or been withdrawn et
al, they must apply in the Member State where they are present. Asylum-seekers
also have further obligations: to cooperate in providing evidence relevant to the
Dublin rules; to provide biometric data for the Eurodac database; to be present
in the Member State where they were obliged to apply, or which is responsible,
or which they were relocated to; and to cooperate and comply with a transfer
decision.
What if the asylum-seeker does
not comply with these obligations? Another new clause sets out consequences for
non-compliance: loss of certain reception conditions under the revised reception
conditions Directive, subject to the conditions that the asylum-seeker was
informed and that a basic standard of living is maintained. This exception was
discussed in Part 2 of this series, commenting on that revised Directive. But
there are exceptions, which are not mentioned in that Directive, if
there are reasonable grounds to believe
that the asylum-seeker is a victim of human trafficking, as defined by
EU law, as well as a general obligation to ‘take into account the individual
circumstances of the applicant, including any real risk of violations of
fundamental rights in the Member State where the applicant is required to be
present’, together with the principle of proportionality.
Moving on to the criteria for responsibility
themselves, they still apply in the order in which they appear – but there are
some changes, both to those criteria and to that order of appearance. First of all,
the criteria relating to responsibility for unaccompanied minors (starting with
responsibility for the Member State where there is a legally present family
member or sibling) are largely unchanged, although the default rule is now
where the minor’s application was ‘first registered’, rather than where it was ‘lodged’;
this seems to change the case law (see Case
C-648/11). Secondly, the criterion assigning responsibility to the Member State
where a family member has international protection has been widened, to include
also Member States where the family member has EU long-term residence on the
basis of the EU
long-term residence Directive (or national long-term residence, if the Directive
does not apply to the Member State in question). However, the third criterion –
where family members are themselves asylum-seekers, if they are awaiting a
first instance decision on the substance – is unchanged.
Underlying these criteria is the
definition of ‘family member’, which has been amended. It now applies to family
relationships that pre-dated entry into the territory, not only to families which
existed in the country of origin; so it would now cover (for example) Syrians
who got married or had a child while in Turkey. Otherwise the definition is the
same (spouse or unmarried partner, if national immigration law treats spouses
and partners the same; unmarried minor children of the couple or applicant; or
the parent or other adult responsible for an unmarried minor). Similar changes
were made to the family reunion definition in the qualifications and reception
conditions rules, as we saw in Parts 1 and 2 of this series.
The next criterion remains holding
a residence document or visa. Here, the rules have changed to provide for a
longer period of responsibility where either the residence document (three years
instead of two) or visa (18 months, instead of six) has expired (on the CJEU’s interpretation
of ‘residence documents’ and ‘visa’, see Case
C-568/21 on diplomatic cards, and Jafari
on the Merkel waiver of the rules in 2015). Along the same lines, there is then
a wholly new criterion: the Member State where the asylum-seeker obtained a
diploma or other qualification, if it was attained less than six years before the
asylum application. The next two criteria are not new, but rather have been moved
higher up the list of criteria, now trumping irregular entry: those who entered
on the basis of a visa waiver, or who applied in the international transit area
of an airport.
The irregular entry criterion –
the best known rule, but obviously not the only one, or even the first one – is
now the bottom of the list (leaving aside the default of where the application
was registered), and has itself been amended: responsibility now expires 20 months
after the irregular border crossing of a Member State (instead of 12); the ‘Sangatte
clause’ on responsibility for irregular stay on the territory of a Member State
has been dropped; and there are new provisions on search and rescue cases (responsibility
expiring after 12 months) and relocation (on interpretation of this criterion,
see again Jafari). Finally, the special provisions on dependents, and
the ‘sovereignty clause’ allowing Member States to accept cases that are not
their responsibility under the rules (or to request another Member State that is
not responsible to accept responsibility), remain largely unchanged (there’s
extensive case law on the sovereignty clause, leaving Member States with
discretion to apply it: see most recently Case
C-359/22. In a dig at Merkel, the 2016 proposal would have curtailed its
use substantially, but that proposal got nowhere).
Procedural rights
At the start of the Dublin
process, the right to information for asylum-seekers has been expanded to
include more issues. There is a new right to legal counselling at this point.
The previous rules on the right to an interview have been amended, inter alia
to add details on the questions to be asked and a requirement to record the interview
(in place of a written summary). (On the scope and effect – under the Dublin III
Regulation – of the rights to information and an interview, see Cases
C-228/21 etc) Next, the previous rules on the rights of minors have also been
amended, in particular to elaborate on the role of the child’s representatives,
expand upon the notion of the ‘best interests of the child’, and require an assessment
before transferring an unaccompanied minor.
As for remedies once a transfer
decision has been made, Member States are still obliged to inform asylum seekers
if another Member State has agreed to take back or take charge of them, with
additional obligations to inform them of the obligation to comply. While there
is still a right to an effective remedy against a transfer, the detailed rules
on the remedy restrict it compared to the Dublin III Regulation. In particular,
the scope of the remedy is now limited to assessment of specific issues (Article
4 of the Charter, new circumstances since the transfer decision, or an application
of the responsibility criteria related to family members), effectively overturning
prior case law which allowed for exercise of appeal rights in more cases (see, for
instance, Ghezelbash).
It is now specified that Member States must give asylum seekers at least one
week, but not more than three weeks, to bring an appeal. Also, the prospects of
suspensive effect of an appeal have been weakened by making the main rule
merely a request for suspensive effect, dropping stronger options. Finally, the
right to legal aid for such appeals is retained.
Moving on to detention pending a
Dublin transfer, detention solely for being subject to a Dublin procedure is
still ruled out. But the threshold to detain has been lowered (a ‘risk of absconding’,
in place of a ‘significant risk of absconding’), and there is now a second
ground to detain (‘where the protection of national security or public order so
requires’). There is still a general rule that detention must be for ‘as short a
period as possible’, and ‘for no longer than the time reasonably necessary to complete
the required administrative procedures with due diligence until the transfer
under this Regulation is carried out’, and the previous time limits requiring a
fast track application of the transfer rules where an asylum seeker was detained
have been shortened. As for detention conditions, they are still governed by
cross-reference to the reception conditions Directive (see Part 2 of this series),
although specific procedural guarantees (reasons for detention in writing,
speedy judicial review) have been added to the 2024 Dublin Regulation itself.
This is potentially confusing, as these provisions in the Regulation are an
abridged version of the guarantees in the Directive.
Transfer process
The detailed rules on Member
States’ obligations have been amended, inter alia to extend the obligations
to take back asylum seekers to include those who have been admitted under an EU
or national resettlement scheme but move irregularly to the territory of
another Member State (on the EU resettlement scheme, see Part 3 of this series).
Apparently, the obligation for the responsible Member State to consider the
merits of an application made by an asylum-seeker who moves to another Member
State has been dropped; the procedures Regulation in fact treats such cases as
normally withdrawn. Also, there are revised rules on the cessation of
responsibility, meaning that Member States remain responsible for longer. The
deadlines to request another Member State to take charge of an applicant are
shorter, as are the deadlines to reply to those requests. There are similar
changes to the rules on take back requests. If a request to take charge or take
back is accepted, the requesting State must adopt a transfer decision within
two weeks.
The next step in the process –
the transfer itself – must still be carried out within six months of the
acceptance of the transfer request or the final decision on appeal. But the previous
exception extending the deadline to eighteen months when the asylum-seeker absconds
has been extended further to three years, and now also applies when the
asylum-seeker ‘is physically resisting the transfer, is intentionally making
himself or herself unfit for the transfer, or is not complying with medical
requirements for the transfer.’ (There’s extensive prior case law on this
deadline, for instance as regards covid
cases and trafficking
in persons).
Migration management and solidarity
framework
The new provisions on migration management
start with a general obligation on the EU and its Member States to establish
comprehensive migration management, which is further broken down into internal
and external components. There is also a general obligation to ensure solidarity
and the fair sharing of responsibility, backed up by a ‘Migration Toolbox’ of
EU policies. Member States must establish national strategies to manage migration
and asylum, and the Commission must build on this to adopt a (non-binding) long-term
EU Migration Management Strategy. The first of these strategies must be adopted
within 18 months of the entry into force of the Regulation (so likely late 2025
or early 2026), and then every five years afterward, including a ‘prominent
role’ for the case law of the CJEU and the European Court of Human Rights.
Next, the Commission must adopt
an annual report on asylum and migration, ‘assessing the asylum, reception and
migratory situation over the previous 12 month period and any possible
developments providing a strategic situational picture of the area of migration
and asylum that also serves as an early warning and awareness tool for the Union’.
The report must assess migration developments, provide a forward projection,
examine preparedness and capacity, and judge whether solidarity measures are
necessary. Reports must be issued by October 15 each year, starting in 2025. Together
with the annual report, the Commission must adopt an implementing decision
defining which Member States are ‘under migratory pressure, at risk of migratory
pressure or facing a significant migratory situation’ – which, as we will see,
is linked to the solidarity rules under the new Dublin Regulation.
Also at the same time, the Commission
must present a proposal for a Council implementing measure establishing the ‘Solidarity
Pool’ – ‘to address the migratory situation in the upcoming year in a balanced
and effective manner’, and which ‘shall reflect the annual projected solidarity
needs of the Member States under migratory pressure’. This will identify the EU-wide
annual needs for solidarity, which must be ‘at least’ 30,000 relocations and €600
million in financial contributions, setting out indicative shares of these contributions
from each Member State based on the annual key in the Regulation, to ‘with a
view to facilitating’ a pledging exercise. The need for solidarity is the norm:
the Commission can only propose that such contributions are unnecessary in ‘exceptional
situations’. There seems to be no possibility to propose numbers of relocations
between zero and 30,000, or contributions below €600 million.
Conversely, these numbers could be
higher, and also the Commission ‘may identify other forms of solidarity…depending
on the needs for such measures arising from the specific challenges in the area
of migration in the Member State concerned’. But if the numbers are higher, the
ratio between relocations and financial contributions ‘shall be maintained’ (ie
raising the financial contributions to €900 million would mean raising the relocations
to 45,000). In proposing the size of the Pool, the Commission has to ‘take into
account relevant qualitative and quantitative criteria, including, for the relevant
year, the overall number of arrivals, the average recognition rates as well as
the average return rates’. Due to the political sensitivity of the discussion,
the Commission’s proposal will be secret until the Council has adopted the
implementing decision.
To follow up the Commission
proposal, there is a ‘High Level Solidarity Forum’ of Member States’
representatives, chaired by the Council Presidency, which will consider the
Commission proposals within 15 days. This Forum is the venue for Member States
to pledge towards the solidarity requirements; it can be reconvened if arguably
more solidarity is necessary. The process is assisted by a technical-level forum
and an EU Solidarity Coordinator, appointed by the Commission.
The Regulation’s provisions on
solidarity explain further what the Solidarity Pool will consist of: relocation
of both asylum-seekers and (if both States consent) beneficiaries of international
protection, if they obtained their status less than three years before the
Council act adopting the Solidarity Pool (those with international protection
must also consent to relocation, but asylum-seekers are only consulted); financial
contributions as regards asylum and migration, including possibly to non-EU
countries ‘that might have a direct impact on the migratory flows at the external
borders of Member States or improve the asylum, reception and migration system
of the third country concerned, including assisted voluntary return and
reintegration programmes’; and alternative measures, which focus ‘on
operational support, capacity building, services, staff support, facilities and
technical equipment’.
As for the Council decision
establishing the Solidarity Pool each year, it shall be adopted by qualified
majority (including amendments to the Commission proposal). Presumably the
Council can amend the proposed number of relocations and financial
support, either up or down. Crucially, ‘Member States shall have full
discretion in choosing between the types of solidarity measures’, or a
combination of them: in other words, they do not necessarily have to
relocate asylum-seekers (the preamble also states that relocation is ‘voluntary’).
The final decision will be based on what Member States are willing to pledge – a
change from at least one of the 2015 relocation decisions, which set relocation
numbers that some Member States disagreed with.
The Regulation then sets out the
process by which Member States identified in the Commission’s decision as
facing migratory pressure make use of the Solidarity Pool. Also, a Member State
which was not identified as facing migratory pressure may apply to make use of
the Pool; in that case the Commission must assess that Member State’s argument
that it is facing such pressure. Presumably a refusal could be challenged. If
the Commission agrees with the Member State, the Council will assess whether
there is any capacity left in the Solidarity Pool for that year; if there is insufficient
capacity, the Council will reopen the pledging process.
Member States facing migratory pressure,
or a significant migratory situation (or which consider that they face such scenarios)
can also ask to deduct some or all of their pledged contributions to the Pool. The
Council will decide, following an assessment by the Commission, whether to agree
to this request or not. Alternatively, under some circumstances, Member States’
relocation pledges can be offset by taking responsibility for applications that
are not their responsibility under the Regulation. In other words, Germany
might pledge to take 5,000 asylum-seekers from Greece to share its burden; but
in practice this might take the form of Germany not transferring 5,000
asylum-seekers to Greece and dealing with their applications instead, even
though Greece would normally have responsibility for them.
Assessment
A key objective of the 2024
changes to the EU asylum system is to ensure more migration control by enhancing
the efficiency of the EU asylum system, in part by restricting secondary
movements of asylum seekers (ie movements between Member States). The notion of
restricting such secondary movements has always been in profound tension with
the liberalisation of the movement of people across the EU. But the revised Dublin
rules are internally contradictory on top. They aim simultaneously to make the
Dublin system work via placing more restrictions on secondary movement, and
yet to disapply aspects of that system because of the unacceptable strain
it places on some Member States. Not since the grand old Duke of York had a
favourite hill has there been so much pointless circular activity. And this comes
despite the recent acceptance that the EU’s temporary
protection regime for those fleeing the invasion of Ukraine should be run
on an ‘applicants’ choice’ basis.
The main changes with a view to ‘making
Dublin work’ are the restrictions on appeals against transfer, the
(conditional) loss of benefits and rights to have an application considered due
to secondary movements, the explicit obligations to comply, the wider grounds
for detention, longer time periods for responsibility for applications, and shorter
deadlines for administrative decision-making. Of these, the rules on appeals
against transfers and loss of benefits and rights to apply particularly aim to
achieve this aim by reducing the rights of asylum-seekers.
On the former point, the 2024
Dublin rules reduce both the scope of the right to appeal against a
transfer and its effectiveness in practice (in particular by limiting
the previous options for suspensive effect), potentially altering the dynamics
of the whole Dublin system: there might be fewer cases reaching the CJEU due to
the limitation of the scope of appeals, and more asylum seekers may be simultaneously
challenging their transfer while starting their substantive application in the
Member State they have been transferred to, due to the limits on suspensive
effect. And because of the fast-tracks in the procedures Regulation, the latter
process may even be completed before the former. The limits on the scope of
appeal seems to be based on the cases in which the CJEU has explicitly mentioned
the EU Charter in this context: see, for instance, Abdullahi
(Article 4 Charter); Case C-19/21
(family criteria); and Shiri
(information available after the transfer decision). Time will tell whether the
CJEU accepts this limitation of the right to an effective remedy in other
cases.
As for the ‘undoing the effects of
Dublin’ provisions, they are new in the Dublin Regulation as such; but they can
be compared to the previous relocation decisions. The mandatory relocation
numbers in the previous decisions were never
much complied with in practice, and so a more voluntary approach to
relocations should at least reduce the prospect of non-compliance. But this
misses the point: for the frontline Member States, the non-compliance was only
a symptom; the underlying disease is the lack of sufficient solidarity. And the
new Dublin Regulation does not cure the disease as such; it simply alters the
dynamics of treatment. The issue will now be whether Member States will pledge
enough relocations in the first place; and the compliance with those pledges in
practice may yet be a further issue again on top.
Finally, as regards the
possibility of the UK participating in the revised Dublin rules, the discussion
of the new rules above confirms that the frequent (and previously debunked)
claim from the UK government that the Labour party is seeking to take 100,000
asylum seekers a year from the EU is false. Quite apart from the lack of
expressed interest from the EU (so far) in negotiations, the Labour party’s
clarification that it seeks a much more narrow arrangement, and the voluntary
nature of relocation under the Regulation, it is obviously mathematically impossible
that the UK’s share of the 30,000 annual relocations that must be proposed by
the Commission under the rules is…100,000. Perhaps the real intention is to
provide further evidence for the Prime Minister’s proposal that all pupils
should study
maths until age 18?
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