Antonino Cento is an LLB student of the University of Tours (France)/University of Bristol and Editor of the French student-led law journal Le Petit Juriste.
The International Organisation for Migration has said that over a million migrants and refugees have reached Europe in 2015. The legal instrument envisaged for examining asylum claims within the European Union has proven shamefully inadequate to the task.
A BRIEF INTRODUCTION TO THE DUBLIN SYSTEM
The Dublin system was originally introduced by the Dublin Convention, signed in Dublin on 15 June 1990. It was replaced by the Dublin II Regulation adopted in 2003 for all EU member states. Following the strong critiques of the ECRE and the UNHCR, especially on the lack of protection and care for unaccompanied minors, and the landmark ECHR case M.S.S. v Belgium and Greece, a new amended version (Dublin III) was approved in June 2013. Dublin III significantly improved this system: it recognises a right for asylum-seekers to being informed about the procedure before it starts; it allows asylum-seekers to appeal a transfer before they are transferred; it provides a wider definition of family, which means that unaccompanied minors should be reunited with uncles, aunts, grandparents, or brothers and sisters, as well as parents.
We should note that although the original aim was to create a “common procedure” and “uniform status of asylum through the Union”, these instruments were soon limited to regulating the process of asylum seekers’ claims by Member States. The cornerstone of the system – that has survived in spite of the several changes – is the “country of first entry principle”. This is the most controversial criterion of the Dublin system. It provides that the responsibility for processing an asylum claim lies with the Member State the asylum seeker first enters. As expected, this condition has created enormous pressure on the Member States at the EU borders (like Greece and Italy) that receive migrants from the Middle-East and Africa, two very unstable regions. Such a principle strongly undermines solidarity between the members of the Union because some states (like the northern countries) are only slightly affected by the migration flow and, obviously, are opposed to change this point.
Another implicit and very controversial objective of the Regulation is to prevent irregular secondary movement between Member States and multiple applications via the EURODAC fingerprint procedure. At the origin of this system lies the fear of “asylum shopping” — this procedure aims to prevent asylum seekers from applying to multiple Member States for asylum and seeks to restrict their movement from the state of first entry to another state which might, for instance, have a more favourable social security system. The person is identified through her/his fingerprints and re-accompanied to the initial Member State.
PROBLEMS ASSOCIATED WITH ‘DUBLIN’: WHY WE NEED A NEW SYSTEM
The Syrian civil war and the subsequent incursion by the terrorist organisation “Islamic State” in Iraq, on the one hand, and the political chaos in Libya, on the other hand, have exacerbated the already difficult situation of people seeking asylum in Europe. In this context, Dublin III has proven to be completely inadequate.
The difficulty for Member States at the borders of the EU caused by the arrival of refugees is not new. Prior to Muammar Gaddafi’s fall, the Italian government had reached a deal with the Libyan dictator to stop migrants and prevent them from reaching Europe by sea; this had culminated in a shameful refoulement policy. After the dissolution of the Gaddafi’s regime, irregular migration as well as human trafficking restarted. Italy was confronted by a crisis that interested all the European continent. In order to deal with the increasingly frequent Mediterranean tragedies, whereby hundreds of migrants died in their attempt to reach Europe, the Italian government set out an operation called Mare Nostrum that aimed to rescue migrants travelling to Europe on fragile ships. After only one year of operation and following Italian protests about the high costs associated with Mare Nostrum, the European Union set out Triton, a similar but smaller operation in which several Member States participated with their navies. Despite this, the intervention has increased the number of deaths due to its small scale. Instead of substituting Mare Nostrum with a smaller scale operation, the European Union should have either financially helped the Italian government or invested more resources in Triton.
More recently, in Greece, the situation has became intolerable: the country cannot manage the migration flux and the risk of human rights violations has exponentially grown with a lack of accommodation, health care and fast access to asylum procedure.
Thus, the European Commission and several countries within the European Union seemed to call for a review of Dublin regulation with a focus on who should be responsible for processing asylum claims. The Juncker Commission set out a plan whereby migrants who arrived last summer were be redistributed in all European countries. The usually reluctant Germany agreed, while the United Kingdom and the East European countries strongly disagreed with that plan. However, a climate of suspicion of refugees has arisen following the recent Paris attacks carried out by IS in which it appears that a Syrian asylum seeker was implicated. The French government has now called for a review of this new migrants quotas.
A serious reform of the European asylum system seems to be far off, but this Regulation is not working. The requirement for asylum seekers to seek asylum “at the earliest opportunity” has had the opposite result: instead of discouraging “asylum shopping”, it has incremented illegal traffics in order to join the northern countries (mainly, Scandinavia and UK). This practice is facilitated by some countries that do not properly register migrants (Italy and Greece in particular). If the asylum seeker does go through with the procedure, it is necessary for them to wait 5 years before they can move to a country other than the country of first arrival. This condition encourages migrants to remain invisible to authorities and to travel illegally. Moreover, even when the required delay is passed, the numbers of asylum seekers actually transferred from one Member State to another is disgracefully low (less than 3% in 2013)
A more technical issue of Dublin has also been criticised: the system is not financially transparent. — In the 2007 Commission evaluation report on the Dublin system it was noted:“Owing to the lack of precise data, it was not possible to evaluate one important element of the Dublin system, namely its cost”.
ECRE has said that it is impossible to ascertain its financial costs as often the national Dublin authorities are part of a broader administrative structure that deals with migration, asylum and border control. The issue of the financial cost of the Dublin system has also been the subject of parliamentary enquiries in Austria, Germany and Switzerland but the response has been that the cost of operating the Dublin system cannot be accounted in detail.
PROPOSALS FOR REFORMS AND ALTERNATIVES
In such a context, European countries need to look at immigration as a priority. The migration crisis is not ending any time soon. The European Commission has estimated that at least 3 million people will arrive in Europe by 2017. In its own interest, the European Union has to afford as much consideration and resources to this crisis as it has and is still affording to the financial crisis.
The implementation of Article 78 TFEU about the creation of a Common European Asylum System may be a good start. It should include the creation of a European Asylum Service (present at the borders of all Member States, as Italy has been suggesting for years) responsible for examining the asylum claims in a fairer and less discretionary manner than Member States currently do. There should also be uniform reception conditions in all Member States (e.g. social benefits) in order to deter “asylum shopping” and ensure equal treatment in all EU countries. Asylum seekers who receive a positive outcome on their claim must have the right to move freely within the Schengen Area; Member States which receive a disproportionate number of asylum seekers must receive some form of financial compensation.
Are all of the above-mentioned reform economically feasible? Yes. In November 2015, the European Union reached a deal with Ankara in order to halt the flow of refugees and allow them to stay in Turkey. The European countries will pay 3 billion Euros over two years to the Erdogan government, without the guarantee that this plan will stop or diminish the migration flux. Is this not an indirect refoulement? Could that money be spent for a more serious and fair European asylum policy? Definitely yes.
The problem is not economic, but political. The arrival of thousands of refugees from Middle East or Africa is not good for politicians wishing to be re-elected, especially in light of public opinion that often confuses refugees with terrorists, and the rise of the far right. However, in both the January and November 2015 Paris attacks, the terrorists were French-born citizens; it is not only unfair but also extremely dangerous to see refugees as potential terrorists. Therefore, European countries should do what is right and comply with human rights, without hiding themselves behind illogical arguments. Now, more than ever, we need to show that Europe is not an old continent turned upon itself, nor that the European Union is only an economic Union: Europe needs to stand as a Union of States which shares the same values of openness and generosity.
 ECRE – Dublin II Regulation : Lives on Hold – Full comparative report (2013)
 M.S.S. v. Belgium and Greece, Application no. 30696/09, European Court of Human Rights, 21 January 2011
 Tampere European Council of June 1999
 “Triton is a total failure; it just resulted in increasing deaths” – European Council on Foreign Relations (Rome)
 European Commission looks at possible reforms and future of the Dublin rules (August 2015)
 Jesuit Refugee Service – The Dublin Regulation’s Impact on Asylum Seekers’ Protection (June 2013)
 Long Term Residents Directive, articles 7 and 15
 EUROSTAT – Dublin statistics on countries responsible for asylum application (March 2014)
 Commission staff working document accompanying document to the Report from the Commission to the European
Parliament and the Council on the evaluation of the Dublin system (2007)
 ECRE – Dublin II Regulation : Lives on Hold – Full comparative report (2013)
 “Migrant crisis: Three million expected to reach EU by 2017” – BBC (November 2015)
 “Germany, France and Italy urge review of EU asylum rules” – France24 (September 2015)
 “Refugee facility for Turkey: Member States agree on details of financing”-EU Council Press release (February 2016)