The Dublin system: the ECJ Squares the Circle Between Mutual Trust and Human Rights Protection

By Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated to the Centre of Interdisciplinary Research in Constitutional Law of Saint-Louis University (USL-B) and the Centre of European Law of the Free University Brussels (ULB). The author wishes to thank the Professors E. Bribosia and S. Van Drooghenbroeck for their valuable advice.

Introduction

On Thursday February 16th, the ECJ handed down a seminal judgment in the case of C.K. and others, C-578/16 PPU. This ruling was rendered on a reference for a preliminary ruling from the Supreme Court of Slovenia asking, in substance, whether the risk faced by an asylum seeker of being a victim of inhuman and degrading treatment because of his/her individual situation, shall prevent his/her transfer to another Member State to consider his/her asylum claim on the basis of the Dublin system.

The Dublin System: Cooperation between Member States based on Mutual Trust

The Dublin system, initiated by a Convention signed in 1990 in the city whose name it bears, allocates responsibility for examining asylum applications lodged by third country nationals (TCNs) in the EU, in such a manner that, in principle, only one State has the task of examining each asylum request lodged on the European Union’s territory.  Pursuing harmonisation of Member states’ asylum policies, the Treaty of Amsterdam introduced the competence of the European Community (Article 63 EC; now Article 78 TFEU) to adopt additional measures in order to achieve a Common European Asylum System (CEAS). On that basis, the Dublin Convention was replaced by the “Dublin II” Regulation (Regulation n°343/2003) and then the “Dublin III” Regulation (Regulation 604/2013). Also, a number of directives were adopted in order to set up minimum standards on the qualification and status of refugees and persons with subsidiarity protection (Directive 2011/95/UE), on asylum procedures (currently Directive 2013/32/UE) and on reception conditions for asylum-seekers (currently Directive 2013/33/UE).

The Dublin system, which constitutes a fundamental part of the CEAS, has as its main goals to (i) ensure the access of TCNs to the asylum application procedure and to (ii) rationalise the treatment of asylum applications by avoiding forum shopping and the existence of multiple applications. It therefore establishes a set of criteria which determine which Member State is, in a particular situation, responsible for examining the application of an asylum-seeker. The general rule is that (in effect) the State of first entry into the European Union is the responsible Member State, but there are several exceptions. If another Member State is approached, that state can either, on the basis of the Dublin system, automatically transfer the asylum seeker lodging the application to the responsible state, but it can also – and it has a sovereign right to – decide to examine the application itself as it so wish (Article 17, Dublin III Regulation: the “sovereignty-clause”).

It is important to note that the Dublin system is underpinned by the fundamental idea of equivalence of Member States’ asylum systems, presuming, therefore, that asylum-seekers would not benefit from any advantage by having their application examined in a specific country.

Summary of Previous Case Law of the ECJ: Preserving Effectiveness of EU Cooperation, even at the Expense of Fundamental Rights

The automaticity of the transfer of asylum-seekers between Member States, founded on the premise of equivalence, quickly appeared problematic in terms of protection of asylum-seekers’ fundamental rights. Notably due to their geographic situation, some Member States were faced with a high number of arrivals that put their asylum-seekers’ reception infrastructures under pressure, and resulted in degradation of their national asylum systems.

It did not take long before challenges against transfer decisions were being introduced, because of the risks faced by asylum-seekers regarding their fundamental rights in the State which the Dublin system made responsible for examining their applications. One of the first landmark rulings on this issue was handed down by the European Court of Human Rights (ECtHR), in which Belgium was held liable for breaching the European Convention on Human Rights (ECHR) by having transferred an asylum seeker back to Greece on the basis of the Dublin system, while this country, in its examination of asylum applications, was not fulfilling the obligations under the ECHR. The ECtHR noted, in the case of M.S.S c. Belgium and Greece (application n° 30696/09), that Belgium, being aware of, or having a duty to be aware of the poor detention and reception conditions of asylum-seekers in Greece, should have relied upon the “sovereignty-clause” of the Dublin II Regulation, to refrain from transferring this individual to a country where he faced a real risk of becoming a victim of inhuman and degrading treatment in accordance with Article 3 ECHR.

Less than a year later, the ECJ addressed the same issue with the additional difficulty of having the duty to safeguard the Dublin system’s effet utile. In the famous N.S. case (C-411/10), the Court was indeed asked whether “a State which should transfer the asylum seeker [to the responsible Member State according to the Dublin regulation] is obliged to assess the compliance, by that Member State, with the fundamental rights of the European Union”.  In addressing this challenge, the ECJ relied - for the first time in the field of asylum - upon the principle of mutual trust between Member States, founded on the presumption that “all participating States [to the Dublin system] observe fundamental rights”, to conclude that it was inconceivable that “any infringement of a fundamental right by the Member State responsible” would affect the obligations of other Member States to comply with the Dublin Regulation (§82).

To maintain the effectiveness of the Dublin Regulation despite the existence of flaws in national asylum systems, the ECJ innovated by introducing the “systemic deficiencies test”, entailing that a transfer should be prohibited “if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman and degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights (corresponding to Article 3 ECHR), of asylum-seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).

To secure a clear, effective and fast method for determining the Member State responsible for dealing with an asylum application, the ECJ thus opted for a presumption of compliance by Dublin States with fundamental rights which could be rebutted in the presence of a “systemic deficiency in the asylum procedure and in the reception conditions of asylum-seekers” where Member States would be compelled to prevent the transfer (§89). This presumption of fundamental rights’ respect by Member States was subsequently applied by the ECJ in other judgements (C-4/11, Puid and C-394/12, Abdullahi).  In fact, the latter judgment expressly limited both the substantive and procedural grounds on which a Dublin transfer could be challenged.

Heavily criticized, this approach was condemned in Strasbourg with the Tarakhel case (application n°29217/12), in 2014 in which the ECtHR reaffirmed and specified its MSS judgement by ruling that the Dublin system “does not exempt [national authorities] from carrying out a thorough and individualized examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman and degrading treatment be established”. 

Stonewalling, one of the ECJ’s arguments against the draft agreement on the accession of the EU to the ECHR (Opinion 2/13) was the ECHR requirement that Member States “check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States” (Opinion 2/13, §194). The Court’s “systemic deficiencies” test was consolidated in the recast of the Dublin Regulation (Regulation 604/2013, Dublin III) whose Article 3(2) states that “where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible”.

A first move from this case law has recently been observed in another field of EU cooperation, namely in EU criminal law. The question asked to the ECJ was whether detention conditions incompatible with art. 4 of the Charter in a Member State issuing a EAW could allow or oblige the executing judicial authority of a requested Member State to refuse the execution of a European Arrest Warrant (EAW). Once again, the ECJ was faced with the dilemma between securing a EU mechanism based on mutual trust or taking human rights considerations seriously. In its landmark ruling in the case Aranyosi and Căldăraru (C-404/15), the ECJ considered that in the event of “systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention” deficiencies, and only if “there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he or she will run a real risk of being subject in that Member State to inhuman and degrading treatment, within the meaning of Article 4” (§94), the executing authority will have to postpone the execution of the EAW.

Hence, a two-step analysis has to be carried out by the national judge who must first assess the existence of general or particular deficiencies in the detention system of the requesting state, before examining, in concreto, whether the requested person faces a real risk of being subject to inhuman and degrading treatment. It remained, however, unclear whether the exception to mutual trust provided in Aranyosi and Căldăraru was more or less protective of fundamental rights. Even though a second condition was added, the deficiency requirement seemed softened.

The ruling of the ECJ in C.K. and others: A Welcome Step Towards Reconciliation Between the Dublin system and Human Rights ?

Facts and Question referred to the ECJ

A couple with a newborn child lodged an asylum application in Slovenia whereas Croatia was, according to the Dublin criteria, responsible for examining their application. Noting the absence of systemic flaws in the Croatian asylum system but observing that the mother of the child was in a very bad state of health, the Slovene court asked the ECJ whether the reliance upon the sovereignty clause (Article 17 of Dublin III) could be mandatory for the purpose of ensuring the family an effective protection against risks of inhuman and degrading treatment. In other words, the national judge inquired whether Dublin transfers were only prohibited in case of the existence of systematic deficiencies in the responsible state, subjecting asylum-seekers to risks of violations of Article 4 of the Charter, or whether a transfer also had to be precluded when such a risk was faced due to the specific and individual situation of a particular asylum seeker.

The opinion of the Advocate General

Following the NS and Abdullahi approach, the opinion of Advocate General Tanchev argued that only systemic flaws in the responsible State could require the prevention of a Dublin transfer. Unsurprisingly, he justified his opinion on the principle of mutual trust between Member States and on the need to ensure the effectiveness of the CEAS (§51). He further acknowledged that his position did not meet ECtHR standards but stressed that the EU was not bound by it (§52). He moreover underlined that Article 17 of the Regulation constituted a “discretionary” clause which, by definition, could not be construed as imposing obligations on Member States (§ 67).

The judgment of the Court

The fifth Chamber of the ECJ - quite uncommonly - did not follow the Advocate General’s opinion. To the contrary, the ECJ stated that, besides situations where “systemic deficiencies” exist in the responsible state, any transfer of asylum-seekers shall be excluded where it gives rise to a real risk for the individual concerned to suffer inhuman or degrading treatment, within the meaning of Article 4 of the Charter.  Relying upon Article 52§3 of the Charter, the ECJ recalled that corresponding rights guaranteed both by the Charter and the ECHR should receive the same scope as those laid down by the Convention.

It then quoted Strasbourg’s recent ruling in Paposhvili v. Belgium (application n° 41738/10, § 175) according to which “illness may be covered by Article 3 [of the ECHR], where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible”. Consequently, despite the absence of systemic deficiencies in the Croatian reception conditions of asylum-seekers (§7), Slovenia was required to suspend the transfer due to the fact that it could result, because of the particular medical condition of the immigrant, in a real risk of serious and irremediable deterioration of her health condition (§84). The suspension should, according to the judgement, be maintained as long as that risk exists. On the basis of its ruling in Aranyosi, the Court also stressed that national authorities were required to assess the risk before transferring an individual (§76).

The Court added that if the state of health of the migrant was not expected to improve, the relevant Member State had the possibility to itself examine the asylum application on the basis of the sovereignty clause contained in Article 17§1 of the Regulation (§96). However, this provision does not, according to the ECJ, oblige a Member State to examine any application lodged with it, even when read in the light of Article 4 of the Charter.

The ECJ finally concluded that this holding “fully respected the principle of mutual trust since, far from affecting the presumption of respect of fundamental rights by Member States, it ensures that exceptional situations are duly taken into consideration by Member States” and furthermore, that “if a Member State proceeded to the transfer of an asylum-seeker in such circumstances, the resulting inhuman and degrading treatment would not be attributable, neither directly or indirectly, to the authorities of the responsible Member State, but solely to the first Member State”.

Comments

The ruling of the fifth Chamber seems to introduce a crucial change in the case law of the ECJ regarding the relationship between the principle of mutual trust and the protection of individuals against inhuman and degrading treatment. Instead of putting these two imperatives in competition, the Court seems, for the first time, to obviously acknowledge their necessary interdependence.  By considering that the principle of mutual trust would be enhanced by an effective application of Article 4 of the Charter, the ECJ finally appears to take seriously the fact that this principle is precisely founded on the respect by Member States of EU values including, above all, the principle of human dignity to which the prohibition of inhuman and degrading treatment is closely linked (Article 2 TEU).

It is therefore not only in case of systemic or generalised flaws in the asylum system of a responsible Member State that a transfer may be prevented. Specific and individual considerations of asylum-seekers must be taken into account in order to assess whether he or she could suffer treatment incompatible with Article 4 of the Charter because of his/her transfer. The Court moreover endorses this requirement by holding that in case of failure in addressing this risk, the first Member State will shoulder responsibility for breach of the Charter.

It should however be stressed that, while the first judgements prioritising the principle of mutual trust were delivered by the ECJ Grand Chamber, the ruling in the case at hand was handed down by a Chamber of five judges whose authority could be considered as being weaker. Nevertheless, the ruling follows the general evolution of the case law of the ECJ which already underlined several times, following the last recast of the Dublin regulation, the fact that the changes of the system were “intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system” (C-63/15, Ghezelbash, §52) The latter judgment (from June 2016) had already overturned the procedural aspects of the Abdullahi judgment; the CK ruling now overturns the substantive aspects.

This valuable step in favour of asylum-seekers’ fundamental rights protection nevertheless raises a number of practical questions. One could ask first – and this question was already put forward by other commentators – whether the risk of the violation of other fundamental rights than the prohibition of inhuman and degrading treatment must justify an exception to the Dublin distribution of responsibilities and, thereby, to the principle of mutual trust. We think that, given the emphasis put by the Court on the exceptional character of the situation, not any breach of any fundamental rights would prevent Member States to rely upon the principle of mutual trust in order to transfer an asylum-seeker. To the contrary, only very serious risks of violation of absolute fundamental rights (Chapter I of the Charter) would in our view justify a mandatory suspension of the transfer of asylum-seekers.

Additionally, the ruling raises questions as regards the consequences of a suspension. As pointed out by the Court, a Member State would never be obliged to itself assess, on the basis of the sovereignty clause (Article 17.1 Dublin III), an asylum application which falls within the responsibility of another State. What if, because of the individual situation of the asylum seeker, the transfer should be suspended in the long term? The finding of the ECJ could then result in the existence of “refugees in orbit”, asylum-seekers who lose the certainty of having their application examined by any Member State of the Union – something which the Dublin system especially seeks to prevent and that could, in itself, constitute an inhuman and degrading treatment.

Finally, the question of the applicability of this approach to EU criminal cooperation should also be raised. The Court seemed, until its holding in the Aranyosi case, very reluctant to acknowledge any exception to the principle of mutual trust in the framework of the European Arrest Warrant (see, among others, the cases C-396/11 Radu and C-399/11, Melloni). The ruling in C.K. should however, in our opinion, be seen as applicable also in the field of criminal cooperation if such exceptional circumstances are met since the ruling especially relies upon the judgment in Aranyosi and also due to the absolute character of the prohibition laid down in art. 4 of the Charter Now the two lines of case law have been brought together, but they raise parallel questions about the long-term consequences. Indeed, the Court of Justice has already been asked to elaborate on the Aranyosi ruling, in the pending Aranyosi II case. So its ruling in that case may be equally relevant to Dublin cases.

In any case, the change of position of the ECJ seems much more in compliance both with the ECHR and, also, with the constitutional requirements of certain national legal orders. Indeed, the German Constitutional Court did not hesitate, in its judgment of 15 December 2015, to make an exception to the principle of mutual trust, as implemented by the EAW system, in order to protect the right of human dignity, which, according to this ruling, forms part of German constitutional identity.

One can henceforth wonder whether the C.K. and Aranyosi rulings generally overturn the Opinion 2/13 argument based on the principle of mutual trust opposed, among others, by the ECJ against the EU’s draft accession agreement to the ECHR… Either way, this new setting should, without a doubt, have an important impact on today’s and future’s relationships between the EU legal order, on the one hand, with the ECHR and national legal orders, on the other.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Handelsblatt

The Orbanisation of EU asylum law: the latest EU asylum proposals

Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system. 

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn. 

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports. 

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways. First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’. Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months. Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey. Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010. Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal). 

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration. 

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission's asylum proposals - to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, the current law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can't relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany. 

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:7

Photo credit: JapanTimes.co.jp

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.