Enhancing efficiency and fairness?

The Commission proposal for a Dublin IV Regulation

Abstract

“Dublin” – the Dublin Regulation – determines, which Member State is responsible for the substantive examination of an asylum application. In May 2016, the Commission issued a proposal for a new Dublin Regulation. This article examines the proposal from the standpoints of efficiency and fairness. The proposal does not sufficiently address the main challenges for the implementation of the Dublin procedure. A sustainable and fair system would essentially need to be based on the participation of the asylum seekers in the Dublin procedure and on leaner, more efficient and pragmatic solutions. The author shows that there is an urgent need to re-work the current proposal.

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Notes

  1. 1.

    COM(2016) 197 final, 6 April 2016.

  2. 2.

    The CEAS consists of four main pieces of legislation regulating the responsibility for an asylum application (“Dublin III” – Regulation (EU) No. 604/2013 [2013] OJ L 180/31), the standards for reception during the procedure (“Reception Conditions Directive” – Directive 2013/33/EU [2013] OJ L 180/96), the rules for the procedure (“Asylum Procedures Directive” – Directive 2013/32/EU [2013] OJ L 180/60) as well as the standards for the qualification of persons as beneficiaries of international protection and the content of the protection (“Qualification Directive” – Directive 2011/95/EU [2011] OJ L 337/9).

  3. 3.

    The official EUROSTAT statistics for 2015 show around 1.4 million asylum applications (1.393.875) in the 32 Dublin countries (EU-28 plus Iceland, Liechtenstein, Norway and Switzerland). This figures contains a high number of persons that were counted in several Member States.

  4. 4.

    In fact, the system was actually meant as an answer to “bad weather” as it was created against the background of the arrival of a large number of persons fleeing the war in the ex-Yugoslavia and the Kosovo crisis.

  5. 5.

    COM(2016) 270 final, 4 May 2016 (“Dublin IV proposal”).

  6. 6.

    COM(2016) 465 final, 13 July 2016 (“Recast proposal for the Reception Conditions Directive”).

  7. 7.

    COM (2016) 467 final, 13 July 2016 (“Proposal for an Asylum Procedures Regulation”).

  8. 8.

    COM(2016) 466 final, 13 July 2016 (“Proposal for a Qualification Regulation”).

  9. 9.

    COM(2016) 272 final, 4 May 2016.

  10. 10.

    COM (2016) 271 final, 4 May 2016.

  11. 11.

    COM(2016) 468 final, 13 July 2016.

  12. 12.

    The “Dublin system” consists of three Regulations: the Dublin Regulation (see n. 2), the Dublin Implementing Regulation (Regulation (EC) No. 1560/2003 [2003] OJ L 222/3) as amended by the Commission Implementing Regulation (EU) No. 118/2014 [2014] OJ L 39/1) and the Eurodac Regulation (Regulation (EU) No. 603/2013 [2013] OJ L 180/1).

  13. 13.

    See European Commission DG Home Affairs and Justice [4], p. 4 and 5.

  14. 14.

    Ibid. pp. 6 to 10.

  15. 15.

    See European Commission DG Home Affairs and Justice [4].

  16. 16.

    See COM(2016) 270 final, p. 3 and 4.

  17. 17.

    See Recital 12 and Article 20 (1) e of the Dublin IV proposal.

  18. 18.

    Case C-695/15 PPU Mirza, EU:C:2016:188.

  19. 19.

    See e.g., UNHCR [10].

  20. 20.

    The non-binding EU-Turkey Statement of 18 March 2016 (see: http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/) is commonly referred to as the ”EU-Turkey-Deal.“ For an analysis of its legal content see Den Heijer/Spijkerboer [2]. See also Cases T-192/16, NF, EU:T:2017:128; T-193/16, NG, EU:T:2017:129 and T-257/16, NM, EU:T:2017:130 of 28 February 2017.

  21. 21.

    COM(2016) 270 final, p. 14.

  22. 22.

    Art. 3 (2)(2) of the Dublin III Regulation foresees that if “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 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.” This provision is also contained in the Dublin IV proposal. See also Case C-578/16 PPU C.K. and others, EU:C:2017:127.

  23. 23.

    There is only one exception to this rule: Article 20(5) of the Dublin IV proposal foresees a take-back notification if the person has moved to another Member State during the Dublin procedure. The Member State that is conducting the Dublin procedure is obliged to conclude it (Article 5(2) of the Dublin IV proposal) despite the onward movement of the applicant. With the exception of an existing Eurodac hit or information provided by the applicant, this Member State may often not be in the position to complete the Dublin procedure. In this situation it will become responsible for examining the asylum application. If the person is not present, the procedure has to be carried out in an accelerated procedure as foreseen by Article 31 (8) of the Asylum Procedure Directive. This situation may cause significant trouble with the principle of non-refoulement if the applicant is actually in need of international protection. This may and will give rise to complicated legal and practical questions of access to a substantive examination procedure, especially with regard to a potential violation of Article 13 in conjunction with Article 3 ECHR or Article 47 in conjunction with Article 4 of the Charter of Fundamental Rights (“Charter”).

  24. 24.

    See on the effect of more controls and non-arrival measures e.g., the final report of the MedMig project: Crawley/Düvell/Jones/McMahon/Sigona [1], p. 48 ff.

  25. 25.

    See COM(2001) 756 final, p. 11.

  26. 26.

    Five years are the minimum period foreseen by the Directive 2003/109/EC for third country nationals to be granted freedom of movement within the EU (if certain further conditions of economic integration are fulfilled).

  27. 27.

    This effect may be mainly attributed to the unfulfilled prospect of creating a uniform status for beneficiaries of international protection valid throughout the EU. Such a status was foreseen as one of the cornerstones of a CEAS (see Tampere European Council [8], para. 15: “In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union”). Yet, the distrust between the states has currently reached a level that makes it unthinkable that positive decisions are mutually recognised in the near future.

  28. 28.

    See above fn. 13 and 15.

  29. 29.

    See SEC(2001) 756 final, 13 June 2001.

  30. 30.

    See COM(2007) 299 final and SEC(2007) 742, 6 June 2007.

  31. 31.

    See e.g., Crawley/Düvell/Jones/McMahon/Sigona, [1], p. 43 and 54.

  32. 32.

    UNHCR [9].

  33. 33.

    COM (2016) 465 final, 13 July 2016. To reduce incentives for “reception related asylum shopping and secondary movements” the Commission inter alia proposes to restrict the freedom of movement (Article 7 (2) and (3) of the recast proposal for the Reception Conditions Directive) and an additional ground for detention is introduced if a person is not acting in conformity with freedom of movement restrictions (Article 8 (3) (c) of the recast proposal for the Reception Conditions Directive).

  34. 34.

    COM(2016) 466 final. The Commission has suggested to amend Article 4 of the long-term residents Directive (2003/1009/EC) by adding an paragraph 3a providing for a re-start of the five year period (to reach free movement within the Union) each time a beneficiary of international protection is found in another Member State without a right to stay or reside: “3a. Where a beneficiary of international protection is found in a Member State, other than the one that granted international protection, without a right to stay or to reside there in accordance with relevant Union or national law, the period of legal stay preceding such a situation shall not be taken into account in the calculation of the period referred to in paragraph 1.”

  35. 35.

    Maiani [7], p. 6.

  36. 36.

    See Case C-578/16 PPU, C.K. and others, EU:C:2017:127.

  37. 37.

    See Case C-648/11 M.A., EU:C:2013:367.

  38. 38.

    See also Maiani [7], p. 39 ff.

  39. 39.

    Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L 239/146 and Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L 248/80.

  40. 40.

    COM(2016) 270 final, 4 May 2016, p. 18.

  41. 41.

    See also Hruschka [6].

  42. 42.

    See COM(2016) 270 final, 4 May 2016, p. 3.

  43. 43.

    See e.g., Maiani [7], p. 57 ff., di Filippo [3]; Hruschka [5].

References

  1. 1.

    Crawley, H., Düvell, F., Jones, K., McMahon, S., Sigona, N.: Destination Europe? Understanding the dynamics and drivers of Mediterranean migration understanding the dynamics and drivers of Mediterranean migration in 2015, November 2016, p. 48

  2. 2.

    Den Heijer, M., Spijkerboer, T.: Is the EU-Turkey refugee and migration deal a treaty? 7 April 2016, in: EU Law Analysis. http://eulawanalysis.blogspot.ch/2016/04/is-eu-turkey-refugee-and-migration-deal.html

  3. 3.

    di Filippo, M.: Dublin ‘reloaded’ or time for ambitious pragmatism? In: eumigrationlawblog, 12 October 2016, available at http://eumigrationlawblog.eu/dublin-reloaded/

  4. 4.

    European Commission DG Home Affairs and Justice: Evaluation of the Implementation of the Dublin III Regulation. Final Report (Report prepared by ICF International for the European Commission), 18 March 2016

  5. 5.

    Hruschka, C.: Dublin is dead! Long live Dublin! The 4 May 2016 proposal of the European Commission. in: eumigrationlawblog, 17 May 2016, available at http://eumigrationlawblog.eu/dublin-is-dead-long-live-dublin-the-4-may-2016-proposal-of-the-european-commission/

  6. 6.

    Hruschka, C.: Schildbürgerstreich der EU-Kommission – Der vorgeschlagene Verteilungsmechanismus der Dublin-IV-Verordnung unter der Lupe, in: juwissblog, 6 December 2016, available at http://www.juwiss.de/97-2016/

  7. 7.

    Maiani, F.: The Reform of the Dublin III Regulation (Study for the LIBE Committee of the Euopean Parliament), June 2016

  8. 8.

    Tampere European Council 15 and 16 October 1999 – Presidency conclusions

  9. 9.

    UNHCR: ExCom Conclusion No. 15 (XXX - 1979) on Refugees Without an Asylum Country

  10. 10.

    UNHCR: Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016, May 2016

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Hruschka, C. Enhancing efficiency and fairness?. ERA Forum 17, 521–534 (2016). https://doi.org/10.1007/s12027-017-0451-x

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Keywords

  • Dublin
  • Responsibility sharing
  • Common European Asylum System (CEAS)
  • Commission proposal 2016
  • Responsibility determination
  • Allocation mechanism