The European Parliament and the Reform of the Dublin System: Bold but Pragmatic?

This is a shortened version of a more comprehensive post, which was originally published on the blog “EU Immigration and Asylum Law and Policy” managed by the Odysseus Academic Network (20 December 2017). For the full version : see here. Pour la version intégrale française, cliquez ici.

A new chapter is being written in the troubled history of the Dublin system. (Hastily) declared dead at the height of the crisis’ of 2015, it has been (belatedly) judged unfit for purpose by a whole range of actors including the European Commission and Parliament. A fundamental reform has therefore been placed on the agenda as matter of urgency.

The Commission Dublin IV Proposal of May 2016 (examined here), however, did not propose a fundamental reform of the system. To the contrary, it retained all the structural elements that doomed the system to failure: its disregard for the needs, aspirations and life circumstances of applicants; its unfairness towards border and “first application” States; and its naïve trust in the willingness of Member States to cooperate in sharing responsibilities.

Accordingly, reception has not been good among commentators and Council and Parliament have not been enthusiastic either. While the Council is still mired in internal disagreement, the European Parliament has adopted as basis for inter-institutional negotiations a document that is highly critical of the Dublin IV Proposal: the “Wikström Report”.

The report is meant to constitute a “bold but pragmatic proposal”. It certainly is bold: the boldest official proposal ever submitted for the reform of responsibility allocation. It replaces the “sanctions-based” approach of the Commission with an “incentives-based” approach. Furthermore, it introduces permanent and automatic quota-based allocation. It is more questionable that the proposal is pragmatic. In the following, we analyze whether it would be capable of “working in practice” as claimed.

An “Incentives-Based” Model of Responsibility Allocation

The Reform of the Dublin Criteria

An important element is the reform of the Dublin criteria. The whole hierarchy of criteria is re-centered on the “genuine links” that applicants may have with particular Member States. Thus, the family criteria are significantly expanded and other “genuine links” are introduced. Critically, the criterion of irregular entry is deleted.

The logic of these amendments is to encourage persons to apply in the first State entered into: they (should) remove the prospect of being “stuck” in the first port of entry, and enhance the prospect of being transferred to a desirable destination. A further, far-reaching amendment is the reform of the rule that applies by default when none of the criteria is applicable. As the law stands, the State where the first application had been lodged is responsible. To break the incentives that this may create for applicants to travel on to their preferred destination and to promote a fairer sharing of responsibilities among Member States, the “Wikström Report” would replace this rule with the automatic allocation of responsibility to the “least burdened” State(s).

The Permanent Allocation Mechanism

By becoming the default rule, “corrective allocation” becomes permanent – not anymore a “crisis” mechanism as per the Commission proposal. Permanent allocation further incorporates new features intended to promote acceptance and cooperation on the applicants’ side:

• First, an element of choice is inserted in the allocation process: the determining State is to “shortlist” the four least-burdened States at the moment of the application, and the applicant is to be given a short deadline to choose among them.
• Second, applicants are allowed to register as groups of maximum 30 people. Family members and relatives are to be “allocated” together in all circumstances.

Conceptually, the idea of giving applicants a choice as to their destination (and company) is nothing short of revolutionary, and breaks at last the “no choice” taboo that has until now reigned uncontested in Dublin-dom. Still, restricting applicants’ choice to four States – likely none of them “preferred destinations” – seems a sure-fire way of depriving this bold reform of its intended effects. Indeed, if the objective is to promote acceptance while at the same time ensuring a fair distribution, why not give applicants the choice among all the Member States that are below quota at the moment of the application?

New Incentives for Member States

The “Wikström Report” also aims to incentivize the Member States to play by the rules. In particular, it aims to make sure that border and “first application” States carry out their “gatekeeper” task properly. To this end, several steps are taken including:

• The deletion of the irregular entry criterion and of the default rule assigning responsibility based on the place of the first application – both powerful incentives to turn a blind eye on irregular entries and to “wave through”.
• Placing several costs, currently borne by the application State, on the EU budget (e.g. reception costs during the Dublin procedure) – though, inexplicably, not all the costs that these States incur to provide “public services” to the EU as a whole (e.g. processing costs for the Dublin procedure).

Of course, regardless of these incentives, border and application States would only play the game if they trust the allocation mechanism, especially in times of crisis. Swift allocation of those who arrive and are registered would, in fact, be their only insurance against being quickly overburdened by “first line” reception responsibilities. In this respect, the report also suggests introducing “disincentives” – in the form of restricted access to EU funds – for Member States who would refuse to cooperate as e.g. the Visegrad States did under the 2015 relocation schemes. It is difficult to say whether such disincentives would be enough.

Should allocation fail to deliver for this or other reasons, however, the system would quickly founder in disorder as pressure to defect and “wave through” would build on “gatekeepers”. So can allocation work in practice?

A System That Will “Work in Practice”?

No matter how important the strengthened protection for family and other “genuine” links, the revolutionary element of the report is automatic quota-based allocation as soon as the “genuine link” criteria have been found not to apply. This innovation would fundamentally change the system from one based on “responsibility” (for entry) to one based on “solidarity”. The gains in terms of distributive fairness between Member States would (theoretically) be considerable, while the expansion of “genuine link” criteria would also make the system fairer for applicants. However, the system would probably prove unsustainably “transfer-heavy”.

Under the current system, agreed transfers are rare. Under the “Wikström Report”, their number would be far greater: allocation to another State would become the “default” rule. But why should this work if, even now, Member States are unable to implement about two thirds of the (comparatively few) agreed transfers? The probable outcome is, in fact, that allocations would largely remain on paper, and “in limbo” situations would multiply.

These considerations seem all the more valid since under the “Wikström Report”, most transfers would likely still have to be implemented without the consent of applicants. True, there would be expanded “genuine link” criteria. But these would still probably apply in a minority of cases. At the same time, the vast disparities that exist between the Member States would make involuntary allocation unfair for applicants and evasion still attractive. Consequently, the system would need to rely on coercion and heavy administrative procedures.

This seems to be the least thought through aspects of the “Wikström Report” (and the Commission proposal). Both seem to start from the premise that involuntary transfers on a large scale self-evidently will work, oblivious to the contrary evidence accumulated under both the Dublin system and the relocation schemes. Neither document proposes a credible answer to the question of how a manifold increase in the efficiency of transfers is supposed to come about. All in all, the core difficulty remains unaddressed: that “moving” large numbers of persons against their will, while respecting fundamental rights, is a daunting task, and quite possibly one that is not feasible.

All of these factors contribute to a system that is unlikely to work in practice. Nevertheless, with its emphasis on “genuine links”, on the need to elicit the cooperation of applicants, and on increased financial solidarity, the “Wikström Report” might still prove an important step on the way that leads to a fair, sustainable and effective responsibility-sharing system.

Francesco Maiani
Centre for Comparative, European and International Law, University of Lausanne and future Project Leader of the nccr – on the move

Constantin Hruschka
Max Planck Institute for Social Law and Social Policy, Munich