Implementing Dublin – Perspectives on the Legislation-Practice Continuum

When examining how migration laws and policies are implemented, the relation between those written texts and enacted practices becomes of crucial interest. This was highlighted in our collaborative research on contested migration control in the Schengen Area. In the following, we will focus on the Dublin Regulation and its implementation as an example of how various actors shape, contest and tinker with policies.

The Dublin Regulation is a useful example to explore how law in the book diverges from law in practice for two reasons: First, it is binding for all Schengen states and is directly implemented without being converted into national legislation. Second, in contrast to many national migration policies, the Dublin Regulation has remained comparatively stable over almost three decades with only two revisions – and one underway – since its adoption in 1990. However, as we will show, differences in its implementation proliferate. We argue that it is crucial to look at actual practices to uncover certain false assumptions regarding how the Dublin Regulation works.

The Dublin Regulation assigns states’ responsibility for processing individual asylum applications and thus aims at impeding asylum seekers from lodging multiple requests in different states and engaging in so-called secondary movement, which has been denounced as ‘abuse’ of the asylum system in EU policy-making (European Commission 2016). Applicants who have previously resided in another Schengen country or who had already lodged a claim elsewhere can be deported to the respective state.

However, the number of implemented Dublin deportations has been relatively low (Eurostat 2014). In the years 2008-2012, the number of annual asylum applications in Europe oscillated between 220,000 and 350,000 (cf. Eule et al. 2019, 46). In the same timeframe, between 8000 and 14,000 Dublin deportations were implemented. Although there was an incisive increase in asylum application in recent years, the proportion of total transfer requests within Europe remained approximately the same.

In 2015, it was publicly acknowledged that Dublin had ‘collapsed under its own weight’ (Menéndez 2016, 397). However, we argue that it has, in fact, never been very effective in its own aim to establish clear responsibilities for asylum applications and to prevent onward movement by asylum seekers. We identify two reasons for this based on our study of how law is implemented and contested on-the-ground.

Practicing Dublin?

On the one hand, by scrutinizing actual state practices relating to the Dublin Regulation, we found different aspects that render the regulation difficult to enforce. Our research with various actors who are affected by the Dublin Regulation in different ways, including migrants with precarious legal status, as well as non-state actors and state officials in different European countries, showed manifold ways in which the implementation of the Dublin Regulation is complicated to enforce.

State-agents often point out that political conflicts are transferred to their everyday work. For example, countries seem reluctant to accept migrants deported according to the Dublin Convention. As a result, a high burden of proof is set to demonstrate that a migrant has passed through a specific country. Further, street-level bureaucrats face time constraints, and thus have to process cases quickly. For example, in Switzerland, cantonal migration offices need to proceed with Dublin deportation swiftly in order to be reimbursed by the national level for accommodation and travel costs. Finally, street-level officials often rely on informal contacts in order to successfully implement Dublin.

These factors all contribute to an uneven application of the Dublin Regulation. This is combined with actors’ often rather informal knowledge, as well as resorting to a mixture of legal criteria, experience and hearsay (Eule et al. 2019).

Beyond implementation difficulties, the Dublin Regulation encourages politicized attempts to control migrants beyond its intended legal use. State agents selectively and strategically use the regulation to make their own job easier, or enact it in a way consistent with their own intentions. For example, the Dublin Regulation has been used to justify the automatic detention of asylum seekers, although this is not in line with the Regulation text (Lex EE 640/2013, Art. 28(2)). Yet police officers and detention officials in Sweden and also in Lithuania admitted that detention of ‘Dubliners’ occurred almost automatically.

Contesting Dublin

On the other hand, next to the administrative challenges voiced by street-level agents, the Dublin Regulation fails at taking into account migrants as strategic actors (Collyer 2012) and makes it impossible for migrants to choose their country of residence. While we understand migration control as incomplete and contested by different actors, we need to consider migrants themselves and their role in negotiating and shaping law enforcement.

Migrants invent creative tactics in order to circumvent the implementation of policies targeting their legal and territorial exclusion. For instance, they abscond and go into hiding in order to make a Dublin deportation impossible. However, states react to migrants’ everyday resistance (Scott 1985) by introducing more refined migration control technologies, which forces migrants to find new loopholes. In consequence, it is necessary to explore the interdependencies of migrants’, states’ and non-state actors’ practices by zooming in on the ‘spaces of asymmetrical negotiations’ (Eule, Loher, and Wyss 2018). This also helps to unveil unintended aspects of migration policies. For instance, we have shown elsewhere that the Dublin Regulation not only prevents onward movement but instead also enforces mobility by deporting migrants back and forth within Europe and thus adding to the prolongation of migrants’ interrupted journeys (Wyss 2019).

The asymmetrical relationship between state authorities and individual migrants becomes manifest in the detrimental effects of border control practices. Law both enables and constrains agents’ respective positions and possibilities to act within the spaces of asymmetrical negotiations. A closer look at the productive differences between legal text and practiced reality, then, helps us conceptualize the constrained agency and informal power at work.

Lisa Marie Borrelli is a post-doctoral researcher at the School of Social Work, HES-SO Valais-Wallis.

Anna Wyss is a researcher at the Maison d’analyse des processus sociaux, University of Neuchâtel.

Tobias Eule is Professor for the Sociology of Law, at the University of Bern, and affiliated with the Hamburg Institute of Social Research.

This text is a shortened version of Chapter 2 from our collaboratively written book ‚Migrants before the Law. Contested Migration Control in Europe’ (Eule et al. 2019) where we trace practices of migration control and its contestation in the European migration regime. The book brings together the perspectives of state agents, NGOs, migrants with precarious legal status, and their support networks, collected through multi-sited fieldwork in eight European states: Austria, Denmark, Germany, Italy, Latvia, Lithuania, Sweden and Switzerland. It provides knowledge of how European migration law is implemented, used, and challenged by different actors, and of how it lends and constrains power over migrants’ journeys and prospects.

Literature:

– Collyer, Michael (2012). “Migrants as Strategic Actors in the European Union’s Global Approach to Migration and Mobility.” Global Networks 12(4): 505–24.
– Eule, Tobias G., Lisa Marie Borrelli, Annika Lindberg, and Anna Wyss (2019). Migrants Before the Law. Contested Migration Control in Europe. London: Palgrave Macmillan.
– Eule, Tobias G., David Loher, and Anna Wyss (2018). “Contested Control at the Margins of the State.” Journal of Ethnic and Migration Studies 44(16): 2717–29.
– European Commission (2016). “Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person (Recast).” COM(2016) 270 final. Brussels.
– Eurostat (2014). “Dublin Statistics on Countries Responsible for Asylum Application.”
– Menéndez, Agustín José (2016). “The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration.” European Law Journal 22(4): 388–416.
– Scott, James C. (1985). Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale University Press.
– Wyss, Anna (2019). “Stuck in Mobility? The Interrupted Journeys of Migrants with Precarious Legal Status in EUrope.” Journal of Immigrant and Refugee Studies 17(1): 77–93.