The implementation of the new Dublin Regulation (“Dublin III”) on 1st January 2014 was heralded as the birth of the Common European Asylum System (CEAS), a joint EU answer to the right to seek international protection from persecution. The Regulation is a recast of the much-criticised “Dublin II” Regulation, cornerstone of the EU asylum system. Although Dublin III has been welcomed and carries hopes of improvement, it fails to address the flaw at the core of the asylum policy: mutual recognition between Member States.
The Common European Asylum System
On 18 February 2003, the EU Regulation on asylum, which became known as Dublin II, implemented a single application policy, under which asylum seekers could only file their application in one member state, and thus only one state would be responsible for examining his/her application. This was to avoid multiple asylum requests across the EU and administrative redundancy over a single application. At the core of this policy lies the concept of mutual recognition among Member States. That is, the belief that across the EU, asylum seekers would find appropriate protection and would see their application thoroughly and fairly examined.
Dublin II suggested to “lay down the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States” (Art. 1 EC no.343/2003). Although family reunion was cited, all other criteria revolved around a single idea: to send the asylum seeker back to the Member State in which he/she first entered the EU, which bore the responsibility to examine his/her request. In other words, Member States situated on the borders of the Union – Greece, Italy, Hungary or Poland, for instance – were automatically responsible for all the asylum seekers who would enter their territory from non-EU countries.
Unsurprisingly, this system put bordering states under extreme pressure, and they quickly proved unable to cope. This in turn led to horrendous living conditions for asylum seekers waiting for their application to be examined (often in closed camps with poor sanitary and security conditions). In 2010, Greece had 1’000 reception places, and received over 10’000 applications for asylum, with imaginable results in terms of overpopulation and water and food supply. The examination procedure could last months, with widely insufficient guarantees of a fair and individualised examination. In other words, the founding assumption that all Member States had comparable – and high – standards in respect to asylum proved dramatically wrong. The European Court of Human Rights (MSS v Belgium and Greece) and the European Court of Justice (N.S v Secretary of State for the Home Department) both recognized Member States’ shortcomings in protecting asylum seekers and preventing abuse.
The readmission procedures too proved to be a challenge. The process was a long one, with the individuals having little or no information about where they were being sent back and when. They were often withheld in detention centres during the wait, adding to their degrading treatment.
What is new under Dublin III?
While Dublin III maintains the ‘entry state’ criteria, it balances it with stronger guarantees for fundamental rights and individual protection.
Firstly, the Regulation explicitly acknowledges the unequal standards among Member States regarding asylum rights. The wording of Article 3(2) is eloquent: “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 or degrading treatment (…) 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”.
While there already was a discretionary clause in Dublin II (Art. 15), under which Member States may freely decide to examine an application, although they are not legally bound to do so, Member States made a very timid use of it. This was partly due to the diplomatic implications of openly accusing a Member State of poor standards. It has also been argued that non-border states were reluctant to take their share in the administrative and financial burden of asylum seekers. The explicit obligation under Dublin III to prevent “systematic flaws in the asylum procedure” will hopefully put more pressure on each state to think responsibly about readmissions.
Secondly, the criteria determining responsibility have been widened, in order to better reflect an individual’s actual bonds in Member States. In order to assess these bonds, the hosting state will have to conduct individual interviews, taking into account a full range of criteria, from family relations, to the length of the stay in the Member States, to the risk of flawed asylum procedures in another Member State. It is hoped that this individual examination will better protect divided families, as well as minors and dependent individuals.
Another improvement under Dublin III is the enhanced information provided to asylum seekers. Each individual susceptible of being readmitted to another Member State will now be immediately informed of this possibility, and what it means in concreto. The Regulation mentions a common information leaflet produced by the EU, and translated into a language the asylum seeker may understand. Information may also be supplied orally, should individuals be unable to read.
Finally, the right to appeal the readmission decision, and the legal assistance therefore provided, should also be clearly laid out.
A long way to go
Unfortunately, the Dublin III improvements will only be as far-reaching as Member States will make them. Only strong and committed implementation at the domestic level will ensure that these steps forward become real. It is up to the states, and especially states which are not on the borders of the EU, to change their mind-sets on the European asylum policy, and embrace its shared responsibility, with the well-being of the asylum seekers at its centre. This is not only crucial to ensure the respect of fundamental rights, but also to ensure that bordering states are not left alone to cope with high numbers of asylum applications. And with rampant populism and xenophobia all over Europe, it is doubtful that all states will play the game.
Finally, and most importantly, the new Regulation remains based on the principle of mutual recognition, which has proved to be flawed. The assumption that all Member States are willing and able to ensure strong guarantees for asylum seekers – and in particular vulnerable groups – remains at the core of readmission system, which has been improved but maintained. True, asylum seekers will have the right to appeal a readmission decision, but it will not suspend, and therefore effectively prevent, a readmission with potentially disastrous consequences. Temporary suspension would have been a significant improvement, but the idea was rejected by the European Council. Article 33, echoing the aforementioned Article 3(2), mentions that when there is an endemic risk for asylum seekers in a state, the Commission shall “make recommendations to that Member State, inviting it to draw up a preventive action plan”. However, it is doubtful that a state overburdened with asylum requests, and arguably aware of its own shortcomings, will come up with an efficient and bona fides action plan because the Commission asked it to.
Dublin III was a much-awaited and much-needed reconfiguration of the Dublin system. Improvements in respect to Dublin II are undeniable. However, whether it really will be the start of a Common European Asylum System, with all states sharing responsibilities and doing their best to protect fundamental rights, remains to be seen. Now is the moment for all Member States, those who have failed to uphold satisfactory procedural standards, and those who used readmissions unscrupulously, to own up to their commitments.
Noemi Manco, legal advisor for undocumented migrants and asylum seekers in France