The new EU asylum laws, part 6: the new Dublin rules on responsibility for asylum-seekers

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Ggia, via Wikimedia Commons

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are intended to be part of a ‘package’ of new or revised EU asylum laws.

I’ve looked at all these agreements for new legislation on this blog in a series of blog posts (see the agreed texts here). This is the sixth post in the series, on the Regulation on Asylum and Migration Management – which I will refer to as the ‘revised Dublin Regulation’ or ‘2024 Dublin Regulation’ for the sake of simplicity. The other blog posts in the series concern the planned new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the planned new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the Regulation on asylum procedures (part 7), and the crisis Regulation and general conclusions (part 8). 

As noted in the other posts in this series, all of the measures in the asylum package could in principle be amended or blocked before they are adopted, except for the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021. I will update this blog post as necessary in light of developments. (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The 2024 Dublin Regulation: background

After an early failed attempt to negotiate rules on responsibility for asylum-seekers in the broader Council of Europe framework, a group of EU Member States agreed rules on the issue as part of the Schengen Convention in 1990. These rules were then extended to all Member States in the Dublin Convention in the same year. Subsequently, the Dublin system became part of the EU development of the Common European Asylum System (CEAS): the first phase of the CEAS included a ‘Dublin II Regulation’, adopted in 2003, and the second phase included a ‘Dublin III Regulation’, adopted in 2013. During the perceived ‘refugee crisis’, there were two emergency decisions on ‘relocation’ of asylum-seekers (moving some of them from Italy and Greece, who were responsible for their applications, to a different Member State, to reduce the burdens on those frontline States), but they expired in 2017. The case law on the Dublin II Regulation and Dublin III Regulation is presumably still relevant to the 2024 Regulation, except where the latter has changed the text of the rules.

The UK and Ireland both opted into the Dublin II and III Regulations. The UK is no longer part of the Dublin system, as a consequence of Brexit (for more on the Brexit angle, see my comments for the UK in a Changing Europe in 2020; note that since I wrote that, the UK has not negotiated any replacement for Dublin with the EU as a whole or individual Member States, resorting to the Rwanda policy instead). Ireland opted out of the 2024 Dublin Regulation, but has announced an intention to opt in to it after adoption [updated April 29 2024]. Denmark is opted out of the Regulation as such, but nevertheless participates in the Dublin system via a treaty with the EU. There is also a Dublin association treaty with Norway and Iceland, and subsequently with Switzerland and Liechtenstein, in parallel to those countries’ association with Schengen.

The legislative process leading to the 2024 Regulation began with a proposal in 2016, which I commented on at the time. Since this proved particularly difficult to agree, a new proposal was tabled in 2020 as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Substance of the Regulation

Like most of the new asylum laws (except the resettlement Regulation, which will apply almost immediately), the new Dublin rules will apply in two years’ time (so likely in spring 2026). But certain provisions will have some effect earlier than that, as discussed below. Furthermore, the Commission must produce a ‘common implementation plan’ to the Council within three months of the Regulation’s entry into force (it is planning to issue this early, in June); Member States must produce national implementation plans within six months of the Regulation’s entry into force.

In addition to amending the traditional Dublin rules on criteria for responsibility for asylum applications, and also the process for the transfer of asylum-seekers to the responsible Member State, the 2024 version of the Dublin Regulation does two more (closely linked) things: it sets up an overall framework for asylum and immigration management within the EU, and establishes a solidarity mechanism to share the burden of applications between Member States. This blog post examines in turn the amendments to changes to responsibility, the related procedural rights, and the transfer process, followed by discussion of the new rules on migration management and solidarity, and concluding with an overall assessment.

Criteria for responsibility

As before, there is an underlying obligation for Member States to consider asylum applications, which will be considered by a single Member State responsible under the Dublin criteria; if the criteria do not indicate a responsible Member State, the default is where the application was registered (previously where the application was lodged; the procedures Regulation details the differences between these concepts). It is still possible to send an applicant to a ‘safe third country’ as defined by the procedures law rather than apply the Dublin rules (on which see the CJEU ruling in Mirza, and the recent Irish judgment finding that the UK was wrongly designated a ‘safe’ country in this context). A new provision allocates responsibility if an asylum seeker fails a security check: the Member State conducting the check then becomes responsible for the application.

The exception to the Dublin rules where there are serious human rights breaches in the responsible State (dating back to the CJEU’s interpretation of the Dublin II Regulation in NS and ME, and added to the text of the Dublin III Regulation), also remains. But there are some amendments to the exception: it now solely refers to Article 4 of the EU Charter on Fundamental Rights (the ban on facing torture or other inhuman or degrading treatment), rather than also to ‘systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State’; the clauses on dependent persons and the sovereignty clause (both discussed below) must also be considered; and it is possible to consider all Member States (not just those responsible according to the Dublin criteria) before the Member State where the application was registered becomes responsible. The former change is perhaps due to CJEU case law which confirmed that asylum-seekers could also not be returned to a Member State where they faced an Article 4 risk because of their individual situation, or because of a risk of severe material poverty (see respectively CK and Jawo). On the other hand, the CJEU has rejected arguments that the exception applies where there are flaws applying the qualification criteria in the other Member State (Cases C-228/21 etc), although in some circumstances ‘pushbacks’ would be a ground for challenging Dublin transfers (Case C-392/22). (The position of those – other than resettled persons – who already have international protection in one Member State but seek it in another Member State due to human rights problems in the former State is governed by the procedures Regulation).

A new provision in the 2024 Regulation expressly obliges each asylum-seeker to apply in the Member State of first entry. This has long been the popular conception of what the Dublin rules do anyway, but in fact they previously only referred to obligations for Member States, not asylum-seekers – although of course this will often have amounted to a de facto obligation for asylum seekers in practice, to the extent that Member States attempted to enforce the rules. As a derogation from this new rule, asylum seekers must apply in a Member State that gave them a residence document or visa; if that residence document or visa has expired or been withdrawn et al, they must apply in the Member State where they are present. Asylum-seekers also have further obligations: to cooperate in providing evidence relevant to the Dublin rules; to provide biometric data for the Eurodac database; to be present in the Member State where they were obliged to apply, or which is responsible, or which they were relocated to; and to cooperate and comply with a transfer decision.

What if the asylum-seeker does not comply with these obligations? Another new clause sets out consequences for non-compliance: loss of certain reception conditions under the revised reception conditions Directive, subject to the conditions that the asylum-seeker was informed and that a basic standard of living is maintained. This exception was discussed in Part 2 of this series, commenting on that revised Directive. But there are exceptions, which are not mentioned in that Directive, if there are reasonable grounds to  believe that the asylum-seeker is a victim of human trafficking, as defined by EU law, as well as a general obligation to ‘take into account the individual circumstances of the applicant, including any real risk of violations of fundamental rights in the Member State where the applicant is required to be present’, together with the principle of proportionality.

Moving on to the criteria for responsibility themselves, they still apply in the order in which they appear – but there are some changes, both to those criteria and to that order of appearance. First of all, the criteria relating to responsibility for unaccompanied minors (starting with responsibility for the Member State where there is a legally present family member or sibling) are largely unchanged, although the default rule is now where the minor’s application was ‘first registered’, rather than where it was ‘lodged’; this seems to change the case law (see Case C-648/11). Secondly, the criterion assigning responsibility to the Member State where a family member has international protection has been widened, to include also Member States where the family member has EU long-term residence on the basis of the EU long-term residence Directive (or national long-term residence, if the Directive does not apply to the Member State in question). However, the third criterion – where family members are themselves asylum-seekers, if they are awaiting a first instance decision on the substance – is unchanged.

Underlying these criteria is the definition of ‘family member’, which has been amended. It now applies to family relationships that pre-dated entry into the territory, not only to families which existed in the country of origin; so it would now cover (for example) Syrians who got married or had a child while in Turkey. Otherwise the definition is the same (spouse or unmarried partner, if national immigration law treats spouses and partners the same; unmarried minor children of the couple or applicant; or the parent or other adult responsible for an unmarried minor). Similar changes were made to the family reunion definition in the qualifications and reception conditions rules, as we saw in Parts 1 and 2 of this series.

The next criterion remains holding a residence document or visa. Here, the rules have changed to provide for a longer period of responsibility where either the residence document (three years instead of two) or visa (18 months, instead of six) has expired (on the CJEU’s interpretation of ‘residence documents’ and ‘visa’, see Case C-568/21 on diplomatic cards, and Jafari on the Merkel waiver of the rules in 2015). Along the same lines, there is then a wholly new criterion: the Member State where the asylum-seeker obtained a diploma or other qualification, if it was attained less than six years before the asylum application. The next two criteria are not new, but rather have been moved higher up the list of criteria, now trumping irregular entry: those who entered on the basis of a visa waiver, or who applied in the international transit area of an airport.

The irregular entry criterion – the best known rule, but obviously not the only one, or even the first one – is now the bottom of the list (leaving aside the default of where the application was registered), and has itself been amended: responsibility now expires 20 months after the irregular border crossing of a Member State (instead of 12); the ‘Sangatte clause’ on responsibility for irregular stay on the territory of a Member State has been dropped; and there are new provisions on search and rescue cases (responsibility expiring after 12 months) and relocation (on interpretation of this criterion, see again Jafari). Finally, the special provisions on dependents, and the ‘sovereignty clause’ allowing Member States to accept cases that are not their responsibility under the rules (or to request another Member State that is not responsible to accept responsibility), remain largely unchanged (there’s extensive case law on the sovereignty clause, leaving Member States with discretion to apply it: see most recently Case C-359/22. In a dig at Merkel, the 2016 proposal would have curtailed its use substantially, but that proposal got nowhere).

Procedural rights

At the start of the Dublin process, the right to information for asylum-seekers has been expanded to include more issues. There is a new right to legal counselling at this point. The previous rules on the right to an interview have been amended, inter alia to add details on the questions to be asked and a requirement to record the interview (in place of a written summary). (On the scope and effect – under the Dublin III Regulation – of the rights to information and an interview, see Cases C-228/21 etc) Next, the previous rules on the rights of minors have also been amended, in particular to elaborate on the role of the child’s representatives, expand upon the notion of the ‘best interests of the child’, and require an assessment before transferring an unaccompanied minor.

As for remedies once a transfer decision has been made, Member States are still obliged to inform asylum seekers if another Member State has agreed to take back or take charge of them, with additional obligations to inform them of the obligation to comply. While there is still a right to an effective remedy against a transfer, the detailed rules on the remedy restrict it compared to the Dublin III Regulation. In particular, the scope of the remedy is now limited to assessment of specific issues (Article 4 of the Charter, new circumstances since the transfer decision, or an application of the responsibility criteria related to family members), effectively overturning prior case law which allowed for exercise of appeal rights in more cases (see, for instance, Ghezelbash). It is now specified that Member States must give asylum seekers at least one week, but not more than three weeks, to bring an appeal. Also, the prospects of suspensive effect of an appeal have been weakened by making the main rule merely a request for suspensive effect, dropping stronger options. Finally, the right to legal aid for such appeals is retained.

Moving on to detention pending a Dublin transfer, detention solely for being subject to a Dublin procedure is still ruled out. But the threshold to detain has been lowered (a ‘risk of absconding’, in place of a ‘significant risk of absconding’), and there is now a second ground to detain (‘where the protection of national security or public order so requires’). There is still a general rule that detention must be for ‘as short a period as possible’, and ‘for no longer than the time reasonably necessary to complete the required administrative procedures with due diligence until the transfer under this Regulation is carried out’, and the previous time limits requiring a fast track application of the transfer rules where an asylum seeker was detained have been shortened. As for detention conditions, they are still governed by cross-reference to the reception conditions Directive (see Part 2 of this series), although specific procedural guarantees (reasons for detention in writing, speedy judicial review) have been added to the 2024 Dublin Regulation itself. This is potentially confusing, as these provisions in the Regulation are an abridged version of the guarantees in the Directive.

Transfer process

The detailed rules on Member States’ obligations have been amended, inter alia to extend the obligations to take back asylum seekers to include those who have been admitted under an EU or national resettlement scheme but move irregularly to the territory of another Member State (on the EU resettlement scheme, see Part 3 of this series). Apparently, the obligation for the responsible Member State to consider the merits of an application made by an asylum-seeker who moves to another Member State has been dropped; the procedures Regulation in fact treats such cases as normally withdrawn. Also, there are revised rules on the cessation of responsibility, meaning that Member States remain responsible for longer. The deadlines to request another Member State to take charge of an applicant are shorter, as are the deadlines to reply to those requests. There are similar changes to the rules on take back requests. If a request to take charge or take back is accepted, the requesting State must adopt a transfer decision within two weeks.

The next step in the process – the transfer itself – must still be carried out within six months of the acceptance of the transfer request or the final decision on appeal. But the previous exception extending the deadline to eighteen months when the asylum-seeker absconds has been extended further to three years, and now also applies when the asylum-seeker ‘is physically resisting the transfer, is intentionally making himself or herself unfit for the transfer, or is not complying with medical requirements for the transfer.’ (There’s extensive prior case law on this deadline, for instance as regards covid cases and trafficking in persons).

Migration management and solidarity framework

The new provisions on migration management start with a general obligation on the EU and its Member States to establish comprehensive migration management, which is further broken down into internal and external components. There is also a general obligation to ensure solidarity and the fair sharing of responsibility, backed up by a ‘Migration Toolbox’ of EU policies. Member States must establish national strategies to manage migration and asylum, and the Commission must build on this to adopt a (non-binding) long-term EU Migration Management Strategy. The first of these strategies must be adopted within 18 months of the entry into force of the Regulation (so likely late 2025 or early 2026), and then every five years afterward, including a ‘prominent role’ for the case law of the CJEU and the European Court of Human Rights.

Next, the Commission must adopt an annual report on asylum and migration, ‘assessing the asylum, reception and migratory situation over the previous 12 month period and any possible developments providing a strategic situational picture of the area of migration and asylum that also serves as an early warning and awareness tool for the Union’. The report must assess migration developments, provide a forward projection, examine preparedness and capacity, and judge whether solidarity measures are necessary. Reports must be issued by October 15 each year, starting in 2025. Together with the annual report, the Commission must adopt an implementing decision defining which Member States are ‘under migratory pressure, at risk of migratory pressure or facing a significant migratory situation’ – which, as we will see, is linked to the solidarity rules under the new Dublin Regulation.

Also at the same time, the Commission must present a proposal for a Council implementing measure establishing the ‘Solidarity Pool’ – ‘to address the migratory situation in the upcoming year in a balanced and effective manner’, and which ‘shall reflect the annual projected solidarity needs of the Member States under migratory pressure’. This will identify the EU-wide annual needs for solidarity, which must be ‘at least’ 30,000 relocations and €600 million in financial contributions, setting out indicative shares of these contributions from each Member State based on the annual key in the Regulation, to ‘with a view to facilitating’ a pledging exercise. The need for solidarity is the norm: the Commission can only propose that such contributions are unnecessary in ‘exceptional situations’. There seems to be no possibility to propose numbers of relocations between zero and 30,000, or contributions below €600 million.

Conversely, these numbers could be higher, and also the Commission ‘may identify other forms of solidarity…depending on the needs for such measures arising from the specific challenges in the area of migration in the Member State concerned’. But if the numbers are higher, the ratio between relocations and financial contributions ‘shall be maintained’ (ie raising the financial contributions to €900 million would mean raising the relocations to 45,000). In proposing the size of the Pool, the Commission has to ‘take into account relevant qualitative and quantitative criteria, including, for the relevant year, the overall number of arrivals, the average recognition rates as well as the average return rates’. Due to the political sensitivity of the discussion, the Commission’s proposal will be secret until the Council has adopted the implementing decision.

To follow up the Commission proposal, there is a ‘High Level Solidarity Forum’ of Member States’ representatives, chaired by the Council Presidency, which will consider the Commission proposals within 15 days. This Forum is the venue for Member States to pledge towards the solidarity requirements; it can be reconvened if arguably more solidarity is necessary. The process is assisted by a technical-level forum and an EU Solidarity Coordinator, appointed by the Commission.

The Regulation’s provisions on solidarity explain further what the Solidarity Pool will consist of: relocation of both asylum-seekers and (if both States consent) beneficiaries of international protection, if they obtained their status less than three years before the Council act adopting the Solidarity Pool (those with international protection must also consent to relocation, but asylum-seekers are only consulted); financial contributions as regards asylum and migration, including possibly to non-EU countries ‘that might have a direct impact on the migratory flows at the external borders of Member States or improve the asylum, reception and migration system of the third country concerned, including assisted voluntary return and reintegration programmes’; and alternative measures, which focus ‘on operational support, capacity building, services, staff support, facilities and technical equipment’.

As for the Council decision establishing the Solidarity Pool each year, it shall be adopted by qualified majority (including amendments to the Commission proposal). Presumably the Council can amend the proposed number of relocations and financial support, either up or down. Crucially, ‘Member States shall have full discretion in choosing between the types of solidarity measures’, or a combination of them: in other words, they do not necessarily have to relocate asylum-seekers (the preamble also states that relocation is ‘voluntary’). The final decision will be based on what Member States are willing to pledge – a change from at least one of the 2015 relocation decisions, which set relocation numbers that some Member States disagreed with.

The Regulation then sets out the process by which Member States identified in the Commission’s decision as facing migratory pressure make use of the Solidarity Pool. Also, a Member State which was not identified as facing migratory pressure may apply to make use of the Pool; in that case the Commission must assess that Member State’s argument that it is facing such pressure. Presumably a refusal could be challenged. If the Commission agrees with the Member State, the Council will assess whether there is any capacity left in the Solidarity Pool for that year; if there is insufficient capacity, the Council will reopen the pledging process.

Member States facing migratory pressure, or a significant migratory situation (or which consider that they face such scenarios) can also ask to deduct some or all of their pledged contributions to the Pool. The Council will decide, following an assessment by the Commission, whether to agree to this request or not. Alternatively, under some circumstances, Member States’ relocation pledges can be offset by taking responsibility for applications that are not their responsibility under the Regulation. In other words, Germany might pledge to take 5,000 asylum-seekers from Greece to share its burden; but in practice this might take the form of Germany not transferring 5,000 asylum-seekers to Greece and dealing with their applications instead, even though Greece would normally have responsibility for them.

Assessment

A key objective of the 2024 changes to the EU asylum system is to ensure more migration control by enhancing the efficiency of the EU asylum system, in part by restricting secondary movements of asylum seekers (ie movements between Member States). The notion of restricting such secondary movements has always been in profound tension with the liberalisation of the movement of people across the EU. But the revised Dublin rules are internally contradictory on top. They aim simultaneously to make the Dublin system work via placing more restrictions on secondary movement, and yet to disapply aspects of that system because of the unacceptable strain it places on some Member States. Not since the grand old Duke of York had a favourite hill has there been so much pointless circular activity. And this comes despite the recent acceptance that the EU’s temporary protection regime for those fleeing the invasion of Ukraine should be run on an ‘applicants’ choice’ basis.

The main changes with a view to ‘making Dublin work’ are the restrictions on appeals against transfer, the (conditional) loss of benefits and rights to have an application considered due to secondary movements, the explicit obligations to comply, the wider grounds for detention, longer time periods for responsibility for applications, and shorter deadlines for administrative decision-making. Of these, the rules on appeals against transfers and loss of benefits and rights to apply particularly aim to achieve this aim by reducing the rights of asylum-seekers.

On the former point, the 2024 Dublin rules reduce both the scope of the right to appeal against a transfer and its effectiveness in practice (in particular by limiting the previous options for suspensive effect), potentially altering the dynamics of the whole Dublin system: there might be fewer cases reaching the CJEU due to the limitation of the scope of appeals, and more asylum seekers may be simultaneously challenging their transfer while starting their substantive application in the Member State they have been transferred to, due to the limits on suspensive effect. And because of the fast-tracks in the procedures Regulation, the latter process may even be completed before the former. The limits on the scope of appeal seems to be based on the cases in which the CJEU has explicitly mentioned the EU Charter in this context: see, for instance, Abdullahi (Article 4 Charter); Case C-19/21 (family criteria); and Shiri (information available after the transfer decision). Time will tell whether the CJEU accepts this limitation of the right to an effective remedy in other cases.

As for the ‘undoing the effects of Dublin’ provisions, they are new in the Dublin Regulation as such; but they can be compared to the previous relocation decisions. The mandatory relocation numbers in the previous decisions were never much complied with in practice, and so a more voluntary approach to relocations should at least reduce the prospect of non-compliance. But this misses the point: for the frontline Member States, the non-compliance was only a symptom; the underlying disease is the lack of sufficient solidarity. And the new Dublin Regulation does not cure the disease as such; it simply alters the dynamics of treatment. The issue will now be whether Member States will pledge enough relocations in the first place; and the compliance with those pledges in practice may yet be a further issue again on top.

Finally, as regards the possibility of the UK participating in the revised Dublin rules, the discussion of the new rules above confirms that the frequent (and previously debunked) claim from the UK government that the Labour party is seeking to take 100,000 asylum seekers a year from the EU is false. Quite apart from the lack of expressed interest from the EU (so far) in negotiations, the Labour party’s clarification that it seeks a much more narrow arrangement, and the voluntary nature of relocation under the Regulation, it is obviously mathematically impossible that the UK’s share of the 30,000 annual relocations that must be proposed by the Commission under the rules is…100,000. Perhaps the real intention is to provide further evidence for the Prime Minister’s proposal that all pupils should study maths until age 18?