Dublin III & IV Regulations: The Legal Angle

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The Dublin III Regulation is a European Union (“EU”) legislation establishing the mechanisms and criteria  for determining which Member State will be responsible for examining an application for international protection lodged in any of the Member States by a third-country national or a stateless person.[i] In other words, it is a legal framework requiring each Member State to fulfil their obligations of processing an asylum claim. The purpose of the Dublin Regulation is to ensure speedy access to asylum procedures and the examination of applications on their merits by a single, clearly determined Member State,[ii] and to ensure that each claim gets a fair examination.

The Member State responsible for determining an asylum application is identified with the help of a hierarchy of criteria, which is: family unity, possession of visas or residential documentation, regular versus irregular entry or stay, and visa-waived entry.[iii] While it is stated that family unity and the best interests of children are primary considerations, in practice it has been noted by the European Parliament[iv] that the most frequently applied criterion is that of irregular entry. This means that the State via which the asylum-seeker initially entered the EU is responsible for investigating their claim for refuge.[v]

The fingerprints of asylum applicants are entered in an EU database designed to determine which other EU countries a person is registered in, and thus whether they would be eligible for transfer.[vi]  Subject to strict time limitations, Dublin Member States may issue formal requests to another Dublin State to take responsibility for the consideration of an asylum claim: “to take charge” or “to take back[vii].  It is also established that applicants only have one chance to apply for asylum, a negative decision wherein is inevitably recognised by all Member States. Applicants may be transferred from one State to another once the responsibility is clear.[viii]

The system established by the Dublin III Regulation operates on the assumption that, since the asylum laws and practices of the EU States are based on common standards, they allow asylum seekers to enjoy rather similar levels of protection in all EU Member States.[ix] This is not necessarily true, as asylum practices continue to vary widely, causing asylum-seekers to receive different treatment across European countries. This has proved it difficult to prevent asylum applications in a country other than the one assigned, and there is a continuing trend of ‘asylum shopping’ and ‘orbiting asylum’, i.e., the inclination of applicants choosing the country most attractive to them (often, migrating towards richer countries), or applying in any State they choose.[x]

The Dublin III is riddled with inadequacies in defining the responsibility for dealing with an asylum application. The migration and refugee crisis has revealed significant structural weaknesses in the implementation and design of the Common European Asylum System (“CEAS”) and of the Dublin regime.[xi] It fails not only to avoid asylum applications in any country other than the one assigned, but also in the compliance with transfer requests among Member States. There is an unfair, disproportionate burden on the border countries such as Italy and Greece, since most processes are initiated in the country of arrival. Aside from the unequal distribution of responsibility, there is also demonstrated a lack of commitment to the fundamental principle of solidarity between the EU States.[xii] At the same time, it must be noted that the regulation was not initially ‘designed to equalise or share the asylum burden’, but only to formulate ‘a mechanism that swiftly assigns responsibility for processing an individual asylum application to a single Member State’.

There remains the problem of States allowing secondary movements, which is the movement of asylum seekers from the country in which they first arrived, to seek protection or permanent resettlement elsewhere. This is generally undesirable as it contributes to the inefficiency of the system, and involves more work for the Member States as it is difficult for them to monitor and process such movements. However, it is a measure generally resorted to by countries along the border which are overwhelmed by the number of applications and simply ‘wave’ asylum seekers through to the neighbouring countries of Germany, Austria or Sweden.[xiii] The concentration of arrivals has thus exposed the weakness of the Dublin system, in establishing the Member State responsible for examining asylum applications primarily based on the first irregular point of entry.[xiv]

There has been a sort of defensive behaviour within the EU, with each Member State competing to reduce their burden of asylum applications to the minimum. Therefore, a majority of the EU countries are reluctant to engage in any policy reform that may require them to take on additional responsibilities, which is why the status quo has been maintained for so long[xv] on the Dublin III Regulation, despite it being inefficient, dysfunctional and economically unsustainable.

The mass uncontrolled arrival of seekers to the EU has put pressure not only on many Member States’ asylum systems, but also on the Common European Asylum System as a whole. In light of the various failures of the Dublin III Regulation, there is a proposal to amend the core element of the CEAS with the Dublin IV Regulation. This proposal is with the aim of revising and replacing the current asylum instruments in order to better manage the flow of migration flows and also to offer adequate protection to those in need, keeping in line with the approach laid down in the European Agenda for Migration.[xvi]

A draft of the Dublin IV Regulation was first put forth in May 2016 by the European Commission, intending to make the Dublin system more transparent, and to enhance its effectiveness by providing a mechanism to resolve any situations of disproportionate pressure on Member States’ asylum systems.[xvii] Besides various technical reforms, it seeks to address two of the major challenges witnessed by the Dublin III Regulations, particularly with the massive influx of migrants and asylum seekers in 2015. These are: (i) the uncontrolled secondary movements of persons; and (ii) the unsustainable pressure placed on border states.[xviii] While including new elements to solve these problems, it maintains the existing determining criteria for which EU country will be responsible for examining an asylum application.[xix] The European Commission intends to respond to the two above-mentioned problems with the help of three measures.

First, applicants are sanctioned for secondary movements by placing their claims through accelerated procedures. A new obligation will be imposed to ensure that applicants apply in the state either of first irregular entry or, in case of legal stay, in that Member State. In the event of non-compliance, the application will be examined by the Member State using accelerated procedures.[xx]

The second measure is to stabilise the allocation of responsibility. This is through the introduction of a rule that once a particular Member State has examined any given application, it continues to be responsible for examining future applications of the said applicant. This serves to strengthen the provision of the criteria of responsibility being applied only once. This measure disincentivizes applicants from absconding in order to forestall transfers.[xxi]

The third measure offered by the EC is the creation of a fairness mechanism ensuring corrective allocation to support the countries facing excessive pressure from sudden high influxes of people seeking refuge. This is to be based on the principle of solidarity, while particularly taking into consideration the efforts made by a Member State to directly resettle those from a third country in need of international protection.[xxii] The system would function similarly to the relocation schemes, wherein an applicant will be transferred from a State overburdened with disproportionate applications, to another Member State facing a lesser burden. This mechanism would take into reference the wealth and size of each country and would automatically get triggered when any Member State receives asylum applications in excess of 150% of its fair share[xxiii], at which point all further new applicants would be relocated regardless of their nationality. This proposal thus gives acknowledgement to the efforts to implement safe and legal pathways into Europe.

Although the issues of secondary movement and the lack of solidarity among Member States have been addressed by the proposed Dublin IV Regulation, it still remains inadequate and has been subjected to various points of criticism. The provision permitting States to sanction asylum seekers is telling of a more coercive trend in the asylum policy, and does not really address the reasons why asylum seekers choose to move. It also brings in a compulsory inadmissibility check for whether applicants can be removed to a third country, implying that most States along the external border will be responsible for checking for admissibility checks and transfers. This is likely to undermine the individual right of asylum, as human rights violations of refugees are probable if the existing criteria for “first country of asylum” or “safe third country” are practically disregarded.[xxiv]

Moreover, the mechanism was conceived with the focus on instances of high inflows. However, it has myopically been presumed that such high influxes are temporary, and that the mechanism can be suspended when numbers return below the 150% threshold. It fails to take into account the structural changes to migratory flows in the long-run, in which regional conflicts may continue to produce high numbers of refugees.

The conception of a “fairness mechanism” depends for its effectiveness on an environment of solidarity and mutual trust. The European Commission’s proposal for corrective allocation is certainly a step in the right direction, but it does not necessarily provide appropriate solutions to the actual challenges faced by border States. Additionally, the proposal of Dublin IV does not seem to be solving the issue of asylum seekers’ fair allocation among Member States.[xxv] It must be noted that negotiations to implement the new proposal have not adequately progressed, owing to political disagreements prevailing among Member States.[xxvi] The feasibility of a foundational reform must be closely considered in light of a political climate where there is little political will for further integration.

Authors: Aashna Mansata, student of Symbiosis Law School, Pune. 

Editor: Astha Garg, Junior Editor, LexLife India.

Aashna Mansata.

[i] Anon., Dublin III Regulation, Citizens Information (Feb. 01, 2020).

[ii] Migration and Home Affairs, Country responsible for asylum application (Dublin), European Commission.

[iii] Hannah Wilkins & Melissa Macdonald, What is the Dublin III Regulation? Will it be affected by Brexit, House of Commons Library (Nov. 04, 2019).

[iv] Anja Radjenovic, Reform of the Dublin system, EPRS, Mar. 01, 2019.

[v] Wilkins, Supra note iv.

[vi] Wilkins, Supra note iv.

[vii] Dublin III Regulation, Home Office, Apr. 30, 2020 at 34-36, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/882400/Dublin-III-regulation-v3.0ext.pdf.

[viii] Else Fernando Gonzalo, The Dublin Asylum System: An Old Challenge for the New European Executive, Eurac Research (Sep. 24, 2019).

[ix] Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, UNHCR, https://www.unhcr.org/4a9d13d59.pdf.

[x] Gonzalo, supra note 9.

[xi] Radjenovic, Supra, note 5.

[xii] Gonzalo, supra note 9.

[xiii] Natascha Zaun, Why is the EU unable to adopt a binding solidarity mechanism for the distribution of asylum seekers?, LSE (Feb. 08, 2019), https://blogs.lse.ac.uk/europpblog/2019/02/08/why-is-the-eu-unable-to-adopt-a-binding-solidarity-mechanism-for-the-distribution-of-asylum-seekers/.

[xiv] Migration and Home Affairs, supra note 3.

[xv] Luigi Achilli, Why are we not reforming the Dublin Regulation yet?, Euractiv (Oct. 25, 2018).

[xvi] Migration and Home Affairs, supra note 3.

[xvii] Migration and Home Affairs, supra note 3.

[xviii] Tamara Tubakovic, A Dublin IV recast: A new and improved system?, No. 46, European Policy Brief,  (Mar. 2017).

[xix] Gonzalo, supra note 9.

[xx] Tubakovic, supra note 19.

[xxi] Tubakovic, supra note 19.

[xxii] Migration and Home Affairs, supra note 3.

[xxiii] Tubakovic, supra note 19.

[xxiv] Anon., REFUGEE POLICY IN EUROPE – NO TO THIS DUBLIN IV REGULATION!, Pro Asyl, (Dec., 2016).

[xxv] Anna Trylinska, Corrective Allocation Mechanism in the Dublin IV Regulation Proposal – Fair Distribution of Responsibility?, ECPR.

[xxvi] Zaun, supra note 14.

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