The “Dublin IV”-Proposal: One Step Forward and Ten Steps Back …

On 4 May 2016, the European Commission has published three proposals to reform the Common European Asylum System. They are the first series of two legislative packages the Commission has presented in 2016 to tackle the current “refugee crisis”. One of the proposals intends to amend the Dublin system, the controversial cornerstone of the Common European Asylum System, also applicable to Switzerland because of the Dublin Association Agreement (2008). Which changes will the proposal entail?

The proposals reflect the prevailing tendencies in the EU regarding the regulation of migration: Regaining control of the situation, ending large-scale “irregular movements” and “protecting” the EU’s external borders are the primary goals.

The “Orbanization” of EU Asylum Law

The recast Dublin Regulation (“Dublin IV”), one of the three proposals, testifies to an “orbanization” of EU Asylum Law and has caused a storm of protest, especially among NGOs active in the area of protection of refugees but also among authorities and legal scholars. Doubt has even been raised as to the question whether the EU Commission, being the author of such an outrageous proposal, still fulfills its role as the “guardian of the Treaties”.

Some of the suggested modifications undeniably increase the risk of human rights violations of applicants for international protection. It is therefore important to have a closer look at the proposal. The main changes to the Dublin III Regulation are the following:

• The establishment of a corrective allocation mechanism (fairness mechanism), which will automatically be established when a country has to handle a disproportionate number of asylum applications – considering the country’s size and wealth. If one country receives applications exceeding 150% of the reference number, all further new applicants (regardless of their nationality) will be relocated across the EU. This applies until the number of applications is back below that level. A Member State has the option of temporarily not taking part in the reallocation. In that case, it has to pay a “solidarity contribution” of € 250’000 to the Member State the person is reallocated instead;
• The creation of a special pre-procedure (that actually petrifies the “Turkey deal”): It starts with an obligation to introduce a claim for international protection in the Member State of first irregular entry. The Member State then has the obligation (not: the possibility) to check whether the application is inadmissible, on the grounds that the applicant comes from a first country of asylum or a safe third country. If this is the case, the applicant will be returned to that country. If the person comes from a safe country of origin or presents a security risk, the application must be dealt with in an accelerated procedure;
• The introduction of legal obligations for applicants for international protection, including a duty to remain in the Member State responsible for their claim, geographically limited reception benefits, and sanctions in case of non-compliance;
• Shorter, but not binding time limits for sending transfer requests, receiving replies and carrying out transfers of asylum seekers between Member States;
• The removal of shifts of responsibility (for example the expiry of deadlines for replying to take charge requests);
• Shorter deadlines (7 days) for the exercise of a person’s right to an effective remedy against a transfer decision;
• A streamlining of the responsibility criteria (for example, the abolition of the cessation of responsibility after 12 months from irregular entry);
• The introduction of a new responsibility criterion for unaccompanied minors: In the absence of family members or relatives, the country where the first asylum application was lodged shall be responsible for the examination of an asylum application of an unaccompanied minor;
• The application of the Dublin system to recognized beneficiaries of international protection.

Human Rights Violations and Lack of Solidarity

All in all, the proposal seems premature and incoherent, considering the history of the Common European Asylum System and landmark cases of the European Court of Justice in the area of asylum. It is a hasty reaction to the refugee crisis to prove critical Member States that “something is going on”. One has difficulty to identify at least some positive points of the proposal, were it not for a harmonization of the notion of family members or the introduction of a maximum period for detention (6 weeks). Thus, the proposal will rather lead to a worsening of the situation of applicants for international protection in the EU, than to a better functioning of the system.

Due to the new pre-procedure, it will be more and more difficult to have ones claim assessed in the EU. Shorter time limits throughout the whole procedure will not only cause infringements of individual rights, but also might increase the already high pressure on Member States authorities (even if they are not binding). The pre-procedure might also bear the risk of a violation of the principle of family unity, as persons will be sent back notwithstanding the presence of family members in the EU. Let’s put it bluntly: The Dublin IV proposal cements the EU-Turkey deal. If Turkey is considered a safe third country (meaning that it is safe for third county nationals; not necessarily for Turks – which is contested), the majority of asylum seekers that enter the EU will be sent back to Turkey, not because of the deal (whose qualification as a legally binding agreement is uncertain), but because of the explicit provisions of the new Dublin regulation.

One of the major shortcomings of the Dublin system is and has always been the lack of sharing of responsibility between the Member States. However, the proposal still places the main burden on the Member States with external borders (Italy, Greece). The objective of ensuring an equitable distribution of applicants for international protection among – and thus certain solidarity between – the Member States will not be reached. The new “fairness mechanism” will most likely never be applied, as the reference numbers will never be exceeded: With most of the applicants coming from a “safe” third country (Turkey), they will all be sent back there after the pre-procedure. The idea of paying a solidarity contribution of € 250’000 to another Member State is ridiculous – not only because the amount is totally arbitrary, but also because it is actually not a sign of solidarity, but the exact opposite.

A Never Ending Story…

As a conclusion, one can say that the value of the proposal is low and it is hard to imagine that such an instrument will find consensus in the Council and the Parliament. But: You never know… Some elements of the proposal might survive the ongoing negotiations. And these can still cause enough harm to the already weak position of migrants in Europe.

Sarah Progin-Theuerkauf
Project Leader, nccr – on the move, University of Fribourg