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: 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. 

The Calais crisis: which Member State is responsible?

Steve Peers

Several thousand migrants are living in poor conditions near Calais, many apparently intent on making it to the UK. Their attempts to find passage via the Eurotunnel are severely delaying travel on both sides of the border. Which country is responsible for them: the UK or France?

At the outset, we should note that this is in a way a clash between two different types of movement within the EU. On the one hand, we have the free movement that the EU specifically tries to encourage: the free movement of goods in the lorries, persons in the trains, and transport services in either context. On the other hand, we have what the EU calls ‘secondary’ movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is adopted to facilitate the first type of movement, while EU asylum law is harmonised to reduce the incentive for the second type.

Of course, the migrants don’t actually want to shut EU free movement down, since that would defeat their whole purpose. They merely want the lorries to slow down long enough to stow away on board, then continue on their journey – in effect bringing the two types of movement together. It’s the government attempts to prevent this that leads to near-gridlock.

But which of those governments is responsible? Let’s examine the issue first from the migrants’ perspective, and then from the free movement perspective. (While some consider the word ‘migrant’ offensive, I will continue to use it. In my view, it simply refers to a category of people, like teachers or nurses. It would make sense to refer to them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that almost all of them had applied for asylum or qualify as refugees; the available information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied for asylum in France, and so their position is governed by EU asylum law. This includes the Dublin Regulation, which determines which Member State is responsible for their application. That may not be France, but rather the Member State which they first entered – if France can prove that they entered there. If France cannot prove that another Member State is responsible, then it must assume responsibility. The UK would only be responsible for their applications if they have close family members in the UK, living there as refugees or asylum-seekers.

In the meantime, while the asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has specifically ruled, in a case involving France, that this Directive applies to the State where asylum-seekers are currently located, even if the Dublin rules say those asylum-seekers should be transferred to another Member State. It only applies to that other Member State once the asylum-seekers are actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another Member State and apply there instead. The whole point of the Dublin Regulation is to deny asylum-seekers exactly that choice. Although the Regulation fails epically in practice to stop asylum-seekers trying to choose the State they would like to apply in, the Directive still applies to ensure minimum living standards for asylum-seekers in the State they are present in.

What does that mean in practice? The Directive requires the Member State where the asylum seekers are present to ensure basic standards as regards welfare and accommodation, among other things. It appears from press reports that these standards are not respected as regards the migrants near Calais.

Furthermore, the latest EU Directive on asylum procedures, which applied from last week, sets deadlines to deal with asylum claims. That part of the Directive doesn’t apply until 2018, but it could be argued in the meantime that the principle of effectiveness of EU law (which the CJEU has frequently applied in immigration law cases) requires asylum claims to be dealt with efficiently, not just ignored.  As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than the UK (and much of the rest of the EU). This may be due to a flawed application of the EU’s Qualification Directive. If this is not being fixed in the French courts by an asylum-seeker’s appeal or a judicial review by NGOs, then the Commission should identify the specific error in interpretation of the law and bring infringement proceedings against France.

But not all of those migrants have applied for asylum. For those people, since it seems unlikely that any of them are legal migrants, this must mean that they are irregular migrants. Their position in France is therefore governed by the EU’s Returns Directive, which specifies that the Member States must issue irregular migrants with a return order and try to enforce their expulsion to a country of origin or transit as soon as possible. The EU Court recently ruled that Member States could not simply issue irregular migrants with a fine and make no effort to remove them. It must equally follow that Member States cannot turn a blind eye to their existence, when (as in the Calais case) a large number of them are openly staying on Member States’ territory.

The Returns Directive does not create an absolute obligation to remove irregular migrants. First of all, a Member State can choose to regularise their position at any time. Secondly, if they apply for asylum, EU asylum law applies, until the end of the asylum process, when they are either recognised as needing protection or their application fails its final appeal. In the latter case, the Returns Directive then applies again. Thirdly, it may prove impossible in practice to remove them to their State of origin or transit, because there is not enough proof of where they come from.  In that case, they remain in a kind of limbo, unless the State chooses to regularise them. Irregular migrants are entitled to emergency health care and essential treatment of illness during their stay. As far as we can tell from press reports, it does not appear that the French authorities are making any active effort to return the irregular migrants in Calais to their countries of origin or transit pursuant to the Directive.  

Free movement law

The CJEU has ruled, in a case involving France, that Member States have a responsibility to prevent free movement of goods being disrupted by private individuals. While States have a margin of discretion exactly how to deal with that private behaviour, it is not unlimited. In that case, farmers’ groups had been vandalising lorries full of other Member States’ produce for years on a regular basis, and many of the perpetrators were known to the police. France was therefore liable for doing nothing very effective to stop this. It was compensating the victims, but this was not enough.

On the other hand, in the case of Schmidberger, Austria was not liable for allowing a disruption to trade by private protesters who briefly blocked a transit route. According to the CJEU, the protesters’ right to demonstrate overrode the free movement of goods, given that the disruption didn’t last very long.

What about industrial action? This is also a separate source of the current restrictions on movement between the UK and France. On this point, the CJEU has been quite critical of trade union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law recognized trade unions’ right to strike and take other collective action, these rights were easily overruled by EU free movement rules. But those cases concerned the freedom of establishment and free movement of services; the current strikes in France affect the free movement of goods. An EU Regulation adopted after the earlier French case states that while States have an obligation to deal with private disruptions to the movement of goods, this is without prejudice to the right to strike.

Applying these cases to the current problems at the UK/France border, it’s not clear whether the disruptions caused by strikes are an unjustifiable restriction on free movement.  The strikes seem only to concern pay and conditions, whereas in Laval and Viking Line, while the disputes were also indirectly about pay and conditions, they were mainly directed at shutting down free movement due to perceived ‘social dumping’.

What about the disruptions linked to the migrants’ attempts to travel to the UK?  While EU law does recognize a right to asylum, it’s possible to apply for that right in any Member State, and so it is not necessary to travel to the UK to that end. The number of migrants would surely be reduced if France applied its obligations to: process asylum applications; decide on Eritrean claims correctly; and remove irregular migrants who had not applied for asylum. France must also extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not. 

Is the UK liable in any way? The UK does exercise border controls on French territory, pursuant to a treaty between the two countries on ‘juxtaposed controls’, agreed in the context of the Channel Tunnel. But the UK’s obligations under that treaty do not extend to admitting asylum-seekers or other irregular migrants who want to use the tunnel to travel to the UK. More broadly, the UK’s border checks in France don’t turn any part of France into British territory, just as the reciprocal French border checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras station to the Paris metro system.

So France is responsible for the impact on free movement, due to its separate breaches of EU immigration and asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after all, it’s not really radical to say that States are generally responsible for what happens on their territory. That’s the normal rule of public international law, and it’s linked to the basic principle of State sovereignty. The EU rules in this case reflect that principle.

Having said that, allocating responsibility does not as such solve the problem. It would be open to the French government to denounce the treaty on juxtaposed controls, with a negative impact on the UK. So it makes sense for the UK government to offer a contribution to solve the problem, even if it is not obliged to do so. The government has already accepted this principle, paying for the construction of a security fence. And it would equally make sense to make a contribution as regards immigration issues, for instance the costs of removal or basic support, linked to a requirement to move to other parts of France to receive that support.

Barnard & Peers: chapter 26

Photo credit: BBC