The Dublin III Regulation: Critiques and latest attempts of reform

Author:Camilla Cafiero
Position:Master's degree in International Relations and Organisations at Università della Campania 'Luigi Vanvitelli', Dipartimento di Scienze Politiche 'Jean Monnet', Caserta(CE), Italy
Pages:2-22
SUMMARY

The Dublin III Regulation is the latest European law instrument that defines the system with which the Member State responsible for examining an application for international protection is determined. Despite the important improvements made to the previous legislation, the Regulation is still an instrument suspended between new and old, which on the one hand responds to the innovations of the European Union in the field of asylum, but on the other hand, is not able to meet the new requirements remaining attached to cases that are over twenty years old. The European Commission, in 2016, issued a proposal for a reform of the Dublin system. But, once again, instead of rethinking the fundamentally incorrect principles underlying the European Union's mechanisms, the proposed amendments reinforced many of the wrong premises. On 16 November 2017, then, the European Parliament, in examining the first reading of the Commission's proposal, adopted numerous amendments, eliminating or improving some of the controversial points of the text. However, the agreement between the European Parliament and the Council, imposed by the ordinary legislative procedure, will be difficult to achieve. The discussions under way in the Council since 2016 and not yet ended are totally disconnected from the Commission proposal and the Parliament amendments. Member States, in fact, are aiming for solutions to prevent solidarity from becoming mandatory and leaving everything in the hands of the Council. It is not clear whether the European Institutions will find a compromise in order to improve the Dublin System or will opt for the establishment of new regulations with different premises and principles.

 
CONTENT
2 CAMILLA CAFIERO
IMMIGRATION LAW
THE DUBLIN III REGULATION: CRITIQUES AND LATEST
ATTEMPTS OF REFORM
Camilla Cafiero1
ABSTRACT
The Dublin III Regulation is the latest European law instrument that defines the system with
which the Member State responsible for examining an application for international protection is
determined. Despite the important improvements made to the previous legislation, the Regulation is
still an instrument suspended between new and old, which on the one hand responds to the
innovations of the European Union in the field of asylum, but on the other hand, is not able to meet
the new requirements remaining attached to cases that are over twenty years old.
The European Commission, in 2016, issued a proposal for a reform of the Dublin system. But,
once again, instead of rethinking the fundamentally incorrect principles underlying the European
Union's mechanisms, the proposed amendments reinforced many of the wrong premises. On 16
November 2017, then, the European Parliament, in examining the first reading of the Commission's
proposal, adopted numerous amendments, eliminating or improving some of the controversial points
of the text. However, the agreement between the European Parliament and the Council, imposed by
the ordinary legislative procedure, will be difficult to achieve. The discussions under way in the
Council since 2016 and not yet ended are totally disconnected from the Commission proposal and the
Parliament amendments. Member States, in fact, are aiming for solutions to prevent solidarity from
becoming mandatory and leaving everything in the hands of the Council.
It is not clear whether the European Institutions will find a compromise in order to improve the
Dublin System or will opt for the establishment of new regulations with different premises and
principles.
KEY WORDS
Amendment, application, asylum, Commission, competence, cooperation, Council, criteria,
deficiencies, discretion, Dublin system, Parliament, European, family unit, first entry, foreigner,
humanitarian ,international protection, jurisdiction, law, Member States, migration, obligation,
procedure, proportionality, reform, refugee, regulation, relocation, responsibility, rights, security,
solidarity, territory, transfer.
1 Master’s degree in International Relations and Organisations at Università della Campania
“Luigi Vanvitelli”, Dipartimento di Scienze Politiche “Jean Monnet”, Caserta(CE), Italy.
Law Review vol. IX, issue 1, Januar
y
-June 2019, pp. 2-22
The Dublin III regulation: critiques and latest attempts of reform 3
INTRODUCTION
Regulation 604/2013, which is none other than the modified version of the
previous Regulation 343/2003 that has transposed at the Community level the
1990 Dublin Convention2, has shown its inefficiency and the need to overcome it.
The development of the Dublin system failed to respond to the exponential
increase in the migratory phenomenon that has affected the European Union.3 The
Dublin III Regulation affirms its full confidence in the Dublin regime, considered
the milestone in the construction of the Common European Asylum System, and
consequently makes only a few changes to the previous provisions, leaving
unchanged the essential core of the original discipline, failing to fill the defects of a
legislation that cannot, therefore, keep up with the times.
Like the 1990 Convention, the 2013 Regulation is based on the principle of one
chance rule which identifies one State as responsible for examining the application
for international protection using the same criteria established in the Convention,
only partly modified. The objective remains that of curbing the phenomenon of the
applicants in orbit and to combat the practice of asylum shopping.4 Furthermore, the
functioning of the system is subject to numerous critiques, since it tends to
attribute responsibility to the Member States of first entry on the territory of the
Union. This criterion has serious repercussions on the asylum systems: in fact, the
unequal distribution of applicants in the European Union contributes to widening
the disparities between Member States in assessing asylum applications, as well as
in their reception and integration systems. The imbalance produced by the Dublin
system is exacerbated by the increase in the number of people in need of
international protection, which has overburdened the reception capacity of some
Euro-Mediterranean countries, making manifest the lack of solidarity among the
Member States. Despite the measures taken by the Commission regarding the
relocation mechanism in order to alleviate the burden of the asylum systems of the
States most affected by the migration phenomenon, the European asylum system
has proved to be fragile and inadequate, mainly due to the lack of stronger
inter-state coordination and a more effective support system for the countries of
2 Following the entry into force of the Treaty of Amsterdam in 1999, it was adopted the EC
Regulation no. 343/2003, known as the Dublin II Regulation. From 1990 to 2013, the Dublin system
progressively extended its territorial scope. The Dublin III Regulation binds twenty-seven EU
Member States, including United Kingdom and Ireland, which have made use of the opt-in clause
provided for by Protocol No. 21 attached to the Treaties. Furthermore, four States are associated with
the Dublin system, on the basis of bilateral agreements with the EU: Iceland, Norway, Switzerland
and Liechtenstein.
3 In the Mediterranean there were 373.652 migrants who arrived by sea in 2016, 185.139 in 2017
and 141.472 in 20183. In the same span of time the number of dead and missing people was
respectively of 5.096, 3.139 and 2.277. https://data2.unhcr.org/en/situations/mediterranean.
4 The asylum shopping consists in presenting more asylum applications simultaneously in
different countries.
4 CAMILLA CAFIERO
first entry. The need to translate the principle of solidarity into concrete measures
has therefore emerged clearly, in order to favor a more equitable distribution of
burdens and responsibilities between Member States.
A further attempt to reform the Dublin System has been proposed by the
European Commission and then amended by the European Parliament. It is
currently under discussion and approval of the European Council. But once again,
it is anchored to the Dublin system, despite the evidence of the need for a complete
and total revision of the principles underlying the European Union mechanisms
for the determination of the competent State for the examination of the application
for international protection.
1. INNOVATIONS AND LIMITS OF THE CRITERIA FOR
DETERMINING THE MEMBER STATE RESPONSALE FOR EXAMINING AN
APLICATION FOR INTERNATIONAL PROTECTION
On 26 June 2013 the European Parliament and the Council approved
Regulation n. 604.5 This recently introduced Act, called Dublin III, is in complete
continuity with the previous regulation, managing with obsolete rules the flows of
asylum seekers and refugees coming into Europe. The principles underlying the
functioning of the system, summarized in the objective of determining a single
State responsible for examining the asylum application and the consequent
identification of a series of objective criteria, remained unchanged. The changes
made to the previous legislation, though important, cannot hide the true face of the
Dublin III Regulation: an instrument suspended between new and old, which on
the one hand responds to the innovations of the European Union in the field of
asylum, but on the other hand, is not able to meet the new requirements remaining
attached to cases that are over twenty years old.
Regulation 604/2013 still submits the competence to examine the application
for international protection to the application of objective criteria ordered in a
hierarchical manner. The criteria of jurisdiction remain, for the most part,
unchanged, considering to the existence of family ties, the issue of a residence
permit or a visa, and the place where the person first entered, regularly or
irregularly, the European territory.6
Important innovations are related to the criterion of the family unity. This is
the principle whereby applications for international protection that are proposed
by people belonging to the same family must be dealt with by the authorities of the
same Member State: this way an in-depth examination of the application is
5 Regulation (EU) No 604/2013 Of the European Parliament and the Council of 26 June 2013 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.
L 180/31.
6 Art 9,10 and 13 of the Regulation 604/2013 of the European Parliament and the Council
The Dublin III regulation: critiques and latest attempts of reform 5
endured, as is the coherence of the decisions taken towards them, and above all the
separation of the members of the same family unit is avoided.7 The respect for
family life, in accordance with the ECHR and the Charter, should, moreover,
constitute a fundamental criterion in the application by the Member States of the
Regulation.8 This objective is pursued through the introduction of a broader
definition of the "family member" of the applicant and the creation of the concept
of "relatives ", so as to favor the functioning of the related competence criteria.
In accordance with the first aspect, it should be noted that art. 2 of Regulation
343/2003 includes a restricted notion of family member, circumscribed to the
members of the nuclear family: this concept does not include the adult children,
brothers, uncles, cousins, grandparents or grandchildren of the applicant; it
requires that the family member, already in the European territory, is a refugee or
an asylum seeker and only if the applicant is an unaccompanied minor, Regulation
343/2003 takes into consideration the State where one of his/her family members
is legally living.
In relation to this profile, the innovative intervention of the Dublin III
Regulation is relevant, although it cannot be fully satisfactory. Article 2, letter g) of
Regulation 604/2013 renews the relevant definitions related to family matters,
removing, in relation to minor children, the requirement that these must be
charged to the applicant. Moreover, if the latter is an unmarried minor, it is
considered as a family member, not only the parent, but also an adult responsible
for the applicant according to the law or the practice of the Member State in which
the adult is located.
The new Regulation also introduces notions unknown to Regulation 343/2003,
such as that of "relatives" which includes the uncles, the grandparents of the
applicant who are in the territory of a Member State regardless of whether the
applicant is a legitimate, natural or adoptive child according to the definitions of
national law9, as well as that of the minor's representative.10
Indeed, this innovation does not seem to significantly affect the operation of
the criteria on which the Regulation is based, if the protection applicant is not an
unaccompanied minor. When, in fact, the application is proposed by an adult
foreigner, art. 9 and 10 establish the jurisdiction to examine the request of the adult
applicant in favor of the Member State in which a family member, but not also a
relative, has requested or has obtained international protection.11 This implies that,
7 Whereas n. 15 of the Regulation 604/2013 of the European Parliament and the Council.
8 Whereas n. 14 of the Regulation 604/2013 of the European Parliament and the Council.
9 Art 2 letter g of the Regulation 604/2013 of the European Parliament and the Council.
10 Art 2 letter k of the Regulation 604/2013 of the European Parliament and the Council.
11 Art 9 of the Regulation 604/2013 of the European Parliament and the Council establishes that
“Where the applicant has a family member, regardless of whether the family was previously formed
in the country of origin, who has been allowed to reside as a beneficiary of int ernational protection in
a Member State, that Member State shall be responsible for examining the application for
6 CAMILLA CAFIERO
even in the regime of Regulation 604/2013, the request, proposed or accepted, of a
brother, uncle, nephew of the applicant does not affect the competence of the
asylum application, with negative effects on the breakdown of the family unit. This
seems a questionable element because often the applicants come from situations of
internal conflict or political and humanitarian crises where the disintegration of the
family units is very frequent; therefore, the reunification in the territory of the
Union with a family member is the only possibility of re-establishing a part of his
or her previous life. The Regulation could have extended the notion of family
member, relevant for the purposes of determining the competence for the asylum
application, making it possible to include different relatives, even those of a further
degree of kinship.
Instead, the provision introduced by art. 7 par. 3 is innovative. It intends to
favor the competence of the Member State connected to the family member of the
applicant especially if, for special reasons of health and weakness, such as recent
maternity, pregnancy, serious illness, disability or seniority12, the foreigner
depends on the assistance of a family member; in such cases, the new Regulation
establishes in general that “in view of the application of the criteria referred to in
articles 8, 10 and 16, Member States shall take into consideration any available
evidence regarding the presence, on the territory of a Member State, of family
members, relatives or any other family relations of the applicant, on condition that
such evidence is produced before another Member State accepts the request to take
charge or take back the person concerned, pursuant to articles 22 and 25
respectively, and that the previous applications for international protection of the
applicant have not yet been the subject of a first decision regarding the
substance”.13 This innovation significantly facilitates the use of the family unit
criterion and covers a clear gap of Regulation 343/2003.
It should also be noted that art. 16, par. 1 regulates in a more detailed and
extensive way the case of dependent persons, that is the possibility that a Member
State takes charge of an applicant's request, if he/she depends on the assistance of
his or her son, brother or parent legally resident in one of the Member States or if a
international protection, provided that the persons concerned expressed their desire in writing”. Art
10 of the Regulation provides that “If the applicant has a family member in a Member State whose
application for international protection in that Member State has not yet been the subject of a first
decision regarding the substance, that Member State shall be responsible for examining the
application for international protection, provided that the persons concerned expressed their desire in
writing”. Compared to Regulation 343/2003, the new elements of Art. 9 consist in the abandonment
of the requirement that the foreigner's family should already be established in the State of origin and
in the fact that the applicant and the family member concerned have expressed this desire in writing.
Also in relation to the hypothesis contemplated in Art. 10 the requirement of the written request by
the interested parties is introduced.
12 Art 16 of the Regulation 604/2013 of the European Parliament and the Council.
13 Art 7.3 of the Regulation 604/2013 of the European Parliament and the Council.
The Dublin III regulation: critiques and latest attempts of reform 7
child, a sibling or a parent legally residing in a Member State depends on the
assistance of the applicant. In this hypothesis, Regulation 604/2013 is concerned
with establishing that such family members are left united or reunited, provided
that certain conditions exist: that family ties existed in the country of origin, that
the child, the sibling, the parent or the applicant are able to provide assistance to
the dependent person and that those interested have expressed that wish in
writing.
New critical or problematic elements are registered, instead, in relation to the
subject that can be considered to be in the care of the applicant, or who takes
charge of the applicant, being limited to the son, brother/sister or parent, against
the generic expression another relative of the Dublin II Regulation.
Regardless of the provisions described so far, the strengthening of the
protection of family units in the procedure for determining the competence for
examining the application for protection could actually be obtained by enhancing
the will of the applicants according to the criteria of competence, but such a
possibility is not taken into account.
Yet the possibility for the applicant, unaccompanied minor or adult, to choose
the Member State responsible for reasons of family kinship to foreigners already
present in the territory of a certain Member State could guarantee a wider
protection of the applicant's personal interests and his/her aspirations for life as
well as integration into the society of the host State; this would also favor legal
certainty, in a context often characterized by a chronic complexity and application
uncertainty, also due to the not always clear explanation of the criteria of
competence. This case, of course, should be limited to purely family reasons and
not be established as a criterion of general jurisdiction since this would favor the
so-called asylum shopping that the Dublin system aims to neutralize.
Moreover, in the Dublin III system there is a tendency to favor the competence
for examining an application for international protection of the State which played
the main role in relation to the entry and residence of the asylum seeker. Art 13.1 of
the Regulation, in fact, establishes that “where it is established, […] that an
applicant has irregularly crossed the border into a Member State by land, sea or air
having come from a third country, the Member State thus entered shall be
responsible for examining the application for international protection”. In addition,
art 13.2 states that “When a Member State cannot or can no longer be held
responsible in accordance with paragraph 1 of this article and where it is
established […] that the applicant — who has entered the territories of the Member
States irregularly or whose circumstances of entry cannot be established — has
been living for a continuous period of at least five months in a Member State
before lodging the application for international protection, that Member State shall
be responsible for examining the application for international protection”.
8 CAMILLA CAFIERO
The fact that the mechanism for allocating jurisdiction is still anchored to the
criterion of the Member State of first entry, established in art. 13, is at the basis of
the structural failings of the division of powers system. The valorization of the
place of first entry, in fact, ends up concentrating applications for protection in
certain Member States, especially those at the southern border, favoring the
emergence of systematic crises in them and, therefore, the risk of violations of the
fundamental rights of the applicant. Moreover, this criterion undermines the
interests of foreigners in search of protection, forcing them to present the
application in a place that not only would not have been the one in which they
would have been interested in staying, but in which they may have arrived
randomly and unexpectedly, for example, for environmental reasons or for the
opportunistic choices of the organizers of illegal journeys.
2. STRNGHTENING OF THE FONDAMENTAL RIGHTS PROTECTION
With regards to a second profile of innovation, Regulation 604/2013 is
characterized by the general tendency to strengthen the protection of the
fundamental rights of the applicants. This aspect is certainly the most relevant of
the renewed regulatory framework with which the institutions intended to
respond to criticism of the Dublin system in the application of the two previous
instruments of harmonization, especially in relation to substantial migratory flows
and situations of strong pressure on the external borders of the southern European
Union.
However, the tension of the rules of the Regulation to respect fundamental
rights does not only manifest itself in relation to the emergent circumstances of the
entry and reception system, but also in relation to the stay of the foreigner in the
territory of the Union waiting for the recognition of the refugee or the subsidiary
protection status. The issue of the protection of fundamental rights emerges in all
its urgency with respect to the different phases of the procedure, starting from the
moment when the foreigner presents the application; it runs throughout the course
of the procedure, until the time when the asylum seeker is transferred to a Member
State other than the one requested, if the application has been lodged in a
non-competent State and it is thus forwarded to the competent national
authorities. This is connected to the situation of those who, as a result of the
transfer order arranged according to the rules of the Regulations, are forced to
return to the State of origin or are rejected in the third, intermediate, starting State.
It is in this scenario that the real breaking point of the Dublin III Regulation
emerges. It refers to the overcoming the presumption of conformity of the behavior
of all Member States to the parameters of protection of fundamental rights and,
therefore, of the condition of mutual security among them. On this premise,
moreover, stands the possibility of transferring responsibility for examining the
asylum application from one Member State to another according to the uniform
criteria of the Regulation.
The Dublin III regulation: critiques and latest attempts of reform 9
With Regulation 604/2013, therefore, an essential element of the Dublin
system was overcome: the general presumption of security of the Member States,
that is the homogeneity of protection of fundamental rights in the different legal
systems, in a context that makes it possible to suppose that all the participating
States, be they Member States or third countries, respect fundamental rights,
including the rights that are based on the Geneva Refugee Convention and the
1967 Protocol, as well as in the ECHR, and that Member States can trust each other
in this regard.14 The new rules of the Regulation take into account, instead, the
results of the practical application of the Regulation and no longer presuppose, in
fact, a common protection by the Member States, requiring, instead, a concrete
assessment in the individual situations in relief.
With this in mind, art. 3 of the Dublin III Regulation requires Member States
not to transfer an applicant to a State that would be competent to review the
application for protection, if there are reasons to believe that in that State
applicants could suffer inhuman and degrading treatments due to systemic
deficiencies of the asylum procedure and in the reception conditions. The norm
was introduced following important rulings by the European Court of Human
Rights and the Court of Justice of the European Union (CJEU). The Courts reach
different conclusions about the parameter by which to evaluate the compliance of
Member States' behavior with fundamental rights. For the Luxembourg Court, the
presumption is lost if systematic and generalized weaknesses are found in the
protection system. On the contrary, the Court of Strasbourg uses more rigorous
scrutiny procedures, verifying in practice, in light of the individual situation of the
appellant, the respect of the obligations coming from the ECHR.
In the N.S. case of 21 December 201115, the CJEU claims that, as far as possible,
the general presumption of conformity of the Dublin system to fundamental rights
must be maintained, because it is on this presumption that “the raison d’être of […]
the Common European Asylum System” rests.16 However, the Court sets a
threshold above which the presumption must be considered overturned and the
Dublin regime must be suspended.17 This threshold is particularly high, since if
any violation of the rules for the protection of persons in need of international
protection should have the consequence of suspending the transfers to the
responsible State, this would deprive “those obligations of their substance and
endanger the realization of the objective of quickly designating the Member State
14 M. Spatti, La disciplina comunitaria relativa all’allontanamento dei richiedenti asilo verso Paesi si curi,
in Diritto pubblico comparato ed europeo, 2007, pag. 217 e ff.
15 Justice Court of the European Union , December 21 2011, N.S. c. Secreta ry State for the Home
Department and M.E and others vs. Refugee Applications Commissioner, Minister for Justice, Equality and
Law Reform, Joined cases C-411 and 493/10.
16 Paragraph 83.
17 Paragraph 62.
10 CAMILLA CAFIERO
responsible for examining an asylum claim lodged in the European Union”.18
Therefore, the only parameter suitable to suspend the Dublin regime is the
existence of systematic deficiencies in the asylum procedure and in the conditions
of reception of the applicants, such as a violation of art. 4 of the Nice Charter.19
The European Court of Human Rights, instead, in the M.S.S. c. Belgium and
Greece judgment stated that the contracting States cannot rely on the presumption
that the asylum seeker is treated in accordance with the international and
European obligations assumed on fundamental rights by the country to which they
have the transfer, having to ascertain that the measure adopted under the Dublin
Regulation is not equivalent in practice to refoulement. This applies not only when
the risk of suffering inhumane and degrading treatments is affected by the
Member State to which the transfer is made, but also when it invests the sending
State of origin of the foreign transferred to which the Member State responsible for
knowing the asylum application dispose the next repatriation.
From the comparison of the M.S.S. case and the subsequent Tarakhel20 case it
emerges that the European Court of Human Rights operates two different tests to
assess the compliance with the ECHR of a transfer under the Dublin procedure. In
situations of generalized deficiencies in the protection system, the violation of
article 3 of the ECHR is established without the applicant being required to
demonstrate the existence of an individual risk of suffering inhumane and
degrading treatment.21 In fact, the objective situation present in the State dispenses
both the applicant from the burden of proof and the Court from proceeding with
the examination of the specific case. Instead, in the absence of systematic gaps in
the protection system, the Court will examine the legitimacy of the transfer in the
light of the specific individual situation of the applicant.22 In conclusion, the
jurisprudence of the European Courts marks the definitive end of the presumption
of security between the Member States and introduces, in fact, a criterion of
identification of the State to compete in examining an application for international
protection.23
Despite the undoubted virtuousness of the provision, the prohibition of
transfer of art. 3 of the Regulation shows a certain weakness of content regarding
the procedural guarantees of the mechanism. The provision does not clarify some
practical profiles related to its operability, such as, in particular, the identification
of the parties entitled to ascertain the existence of systematic crises that could
18 Paragraph 85.
19 Paragraph 86.
20 European Court of Human Rights, GC November 4 2014, Tarakhel vs. Switzerland, appeal
n. 2917/12.
21 Case M.S.S par. 359.
22 Par 104. Cfr. Vicini G., op. cit., 216-217.
23 F. Graziani, Lacune e inefficienze del Regolamento Dublino III: l’urgenza di un suo superamento, in
Rivista del diritto alla navigazione, 2015, pag. 11 e ff.
The Dublin III regulation: critiques and latest attempts of reform 11
trigger a serious risk of violation of the fundamental rights of the asylum seeker.
The norm, in fact, assigns every assessment to the competent authorities of the
Member States that have decided in favor of the transfer. This is debatable, both for
the eventuality of a different degree of protection in the single systems in relation
to fundamental rights, and for the different capacity of the same to ascertain
conditions of systemic crises that could trigger the prohibition of art. 3. This
solution can lead to uncertain and uneven outcomes in the application of the
prohibition and it would have been perhaps more reasonable to entrust such
control to the European Commission, which could have offered more guarantees
on the protection of fundamental rights.
Finally, a further critical profile of art. 3 consists in the fact that it expressly
refers to the only risk of forbidden treatment pursuant to art. 4 of the Charter; this
excludes the prohibition of transfer operate even when the systematic crisis
involves the violation, even serious, of different fundamental rights. This provision
can also be criticized for referring only to infringements occurring in cases of
systematic failures of Member States in the field of asylum. Certainly such contexts
favor the demonstration of the existence of a risk for the protection of the
fundamental rights of the applicant, but it is not excluded that the danger of
inhuman and degrading treatments prohibited by art. 4 of the Charter also take
place in States that do not suffer systematic crises in this matter. The Dublin III
Regulation, therefore, seems indifferent to this eventuality.
3. THE SOVEREIGNTY CLAUSE: DISCRETIONARY OR COMPULSORY
NATURE?
Article 17, par. 1 of the Dublin III Regulation, which includes the sovereignty
clause, establishes that “each Member State may decide to examine an application
for international protection […], even if such examination is not its responsibility
under the criteria laid down” in the Dublin System. The exercise of the clause is
subject to a discretionary decision by the State, it is not subject to any conditions, it
does not depend on the attitude of the Member State that would be competent
under the Dublin system and does not require the consent of the individuals
concerned for its application.24 In this regard, State practice is highly varied. The
sovereignty clause has been invoked for different reasons: in some cases, the use of
the clause has been justified to guarantee greater rapidity in the rejection of
manifestly unfounded applications; in other cases, the assumption of responsibility
was motivated by humanitarian reasons and by the particular condition of
vulnerability of the asylum seekers.25
24 F. Graziani., Lacune e inefficienze del Regolamento Dublino III: l’urgenza di un suo superamento,
2015, pag. 13.
25 L. Grasso, Rispetto dei diritti fondamentali dei richiedenti asilo e o peratività della sovereignity clause
nel regolamento Dublino II, in Dir. Pubbl. comp. Eur., 2012, pag. 733 e ff.
12 CAMILLA CAFIERO
It is necessary to understand if and when the sovereignty clause loses its own
nature, of mere faculty, to act as an obligation for the States participating in the
Dublin system. Three considerations may be derived from the judgments of the
European Courts. Firstly, Member States must use the clause when its application
is the only way to respect fundamental rights during the request for international
protection. According to the CJEU, the sovereignty clause, while giving the States a
discretionary power, is an integral part of the Common European Asylum System
and meets the limit of respect for the human rights protected by the Union itself. If
it is not possible to identify a competent State for the purpose of examining the
asylum application, or, in the case where such determination risks having an
unreasonable duration, the Member State is obliged to take charge of the
application, using the sovereignty clause. The European Court of Human Rights,
instead, has rebuilt this clause in different terms. The existence of systematic
deficiencies in the asylum protection system obliges the State not to proceed with
repatriation and to exercise, therefore, the clause. On the other hand, in the absence
of generalized deficiencies, since the State has to take into account the individual
situation of the applicant, the clause may not be used, to the extent that the State
intending to make the transfer obtains from the competent State specific and
detailed guarantees regarding taking charge of the applicants.26
Secondly, outside the mentioned cases, the sovereignty clause retains its
discretionary nature. In the judgment Halaf of May 30, 2013, the Court of Justice
stated that "the exercise of this right is not subject to special conditions" and allows
each Member State to "decide, in full sovereignty, on the base of political,
humanitarian or pragmatic conditions, to accept the examination of an asylum
application".27
Finally, it cannot be deducted from the case law of the European Courts that
there is an obligation for the Member States to suspend the transfer to a particular
State. The use of the exception provided for by art. 17, par. 2 presupposes an
analysis conducted on a case by case basis, in the light of the situation existing in
the State which would be competent under the Dublin regime and the particular
conditions in which the applicants are. From this latter point of view, the
sovereignty clause is not a substitute for the suspension mechanism of the Dublin
procedure, proposed by the European Commission, but not accepted during the
adoption of the Regulation. In fact, the mechanism designed by the Commission
aimed at centralizing within the Commission itself the verification of systematic
crises in the asylum procedures and in the maintenance of national reception
systems. Instead, even in the hypothesis of use of the sovereignty clause, it is up to
the State authorities to evaluate the conditions likely to activate the prohibition on
transfer of the protection applicant; this is doubtlessly questionable, since this
26 ECHR, GC November 4 2014, Tarakhel vs. Switzerland, appeal n. 2917/12, par 120.
27 Justice Court, May 30 2013, Zuheyr Frayeh Halaf, Case C-528/11, par 36-37 and par. 44.
The Dublin III regulation: critiques and latest attempts of reform 13
solution could generate uncertainties and inhomogeneities in the concrete
application of the prohibition.28
4. AN ATTEMPT OF REFORM OF THE DUBLIN SYSTEM MADE BY
THE EUROPEAN COMMISSION
In May 2015, the European Commission acknowledged that the Dublin regime
is not functioning as it should and therefore decided to proceed with an
assessment of the Dublin system in 2016 with a view to its revision.29
There are three main objectives of the reform of the Dublin III Regulation
presented by the Commission in May 2016. The first objective is to increase the
capacity of the system to efficiently and effectively determine a single member
State responsible for examining the application for international protection. The
second is to discourage, through sanctions, the so-called secondary movements of
asylum seekers who try to reach a country other than the one in which they are
required to submit their application. The third is to allow a fair sharing of
responsibilities between member States, establishing a corrective redistribution
mechanism for asylum seekers, which would automatically be activated if a
member State were to face a disproportionate number of asylum applications.
Before the beginning of the process of determining the competent Member
State, the proposed Regulation introduces the obligation of the State in which the
application is submitted to verify whether the application is inadmissible on the
basis that the applicant comes from a safe first country of asylum or a safe third
country. It is also established that the State will have to examine the application
with an accelerated procedure if the applicant comes from a safe country of origin
or if it can be considered a danger to the national security or the public order of the
Member State.30
The proposal in art. 4 introduces a new obligation according to which the
asylum seeker must submit an application in the Member State in which he or she
first entered illegally or in the Member State where he or she is already legally
present. This change shows that the applicant does not have the right to choose the
Member State in which to apply.
Moreover, the applicants' cooperation requirement is strengthened to ensure
rapid access to the status determination procedures and the proper functioning of
the system. The Regulation establishes proportionate obligations for the applicant
with regard to the timely submission of any relevant element and information for
the determination of the competent Member State. Applicants are also required to
be present and available to the authorities of the competent Member State and to
28 O. Feraci, Il nuovo regolamento Dublino III, in Osservatoriosullefonti.it, 2013, fasc. 2.
29 European Commission, Agenda on Migration, 15-5-2015, COM(2015) 240 final, cit., 11 e 13.
30 Art. 3.3 Proposal for a Regulation of the European Parliament and the Council 2016/270.
14 CAMILLA CAFIERO
comply with the transfer decision.31 Failure to comply with the obligations
established will have proportionate procedural consequences for the applicant,
such as the examination of the application with an accelerated procedure and the
non-acceptance of information submitted with delay.32
With the reform, the criteria for determining the competent State remain
unchanged, especially the one in relation to the State of first arrival.
Another important change concerns the limitations placed on the discretionary
clause. This can be invoked only if no Member State has been determined as
competent and only for humanitarian reasons in relation to the extended family.33
A network of Dublin units is also established, with the help of the European
Union asylum Agency, to foster practical cooperation and the sharing of
information on all issues related to the application of the Regulation, including
development of practical tools and guidelines.34
The proposal is more inclined to respect fundamental rights and the general
principles of European Union law. In particular, the right to information for
asylum seekers is improved so that they can better defend their rights and in order
to reduce the level of secondary movements as the applicants may be more
motivated to respect the system. The right to a judicial appeal is made more
effective, specifying the scope of the appeal and harmonizing the deadlines for
decision-making. The appeal also has an automatic suspensive effect. Lastly, the
right to freedom and free movement in the territory of the competent State is
strengthened, reducing the time limits within which a person can be held in the
exceptional cases prescribed by the Regulation and only if this is in line with the
principles of necessity and proportionality.
In the attempt to correct the inequality of the criteria of competence, the
Commission presented, in the proposal, a crisis relocation mechanism modifying
Regulation 604/2013. This mechanism is activated when there is a
disproportionate influx of applicants for international protection in one Member
State, i.e. more than 150% of a national quota defined for each State through a
reference key based on two equivalent criteria: the number of inhabitants and the
gross domestic product. The relocation mechanism is permanent, it is contained in
the Regulation and therefore it is applicable whenever the crisis situation is
established, but at the same time it is temporary because the Commission has the
power to establish the period of application of the mechanism, as well as to
determine the number of asylum seekers to be relocated, which in any case cannot
exceed 40% of the number of applications submitted in that Member State during
the six months prior to the adoption of the delegated act. Evaluating the situation,
31 Art. 4.3 Proposal for a Regulation of the European Parliament and the Council 2016/270.
32 Art. 5 Proposal for a Regulation of the European Parliament and the Council 2016/270.
33 Art. 19.1 Proposal for a Regulation of the European Parliament and the Council 2016/270.
34 Art. 49 Proposal for a Regulation of the European Parliament and the Council 2016/270.
The Dublin III regulation: critiques and latest attempts of reform 15
the Commission takes into account, moreover, the total number of applicants for
international protection and the irregular entry of third-country nationals and
stateless persons in the six months prior to the adoption of the delegation act, the
increase in this number over the same period in the previous year and the number
of applications per capita presented in the Member State benefiting from relocation
in the previous 18 months compared to the Union average.
The conditions for activating the crisis relocation mechanism are rigorous and
provide first of all for the Commission to verify, on the basis of information
provided by EASO and Frontex, that the crisis is such that it does not allow the
correct functioning of Regulation 604/2013. The relocation also provides for
measures to be taken by the Member State benefiting from this mechanism: it must
draw up an action plan to improve the conditions of its asylum system and it can
be sanctioned by the Commission with the suspension of relocation if it does not
comply with the obligations contained in the plan. In reality, despite the proposal
for a Regulation requires a rapid activation of the parties involved, it does not
contain stringent deadlines, except for a maximum of two months for the
conclusion of the procedures, but only from the moment in which the Relocation
State declares the number of applicants it is able to host. Nothing is said about the
previous phase.
The mechanism in question does not prohibit the Council from adopting
temporary measures for the benefit of a State pursuant to art. 78, par. 3 TFEU.
Indeed, it may happen that, under the conditions to activate emergency measures,
it would not be possible to activate the crisis relocation mechanism. This provision
suggests that the hypotheses that the mechanism is used are really reduced. The
proposal adds a section VII that contains precisely the "crisis relocation
mechanism": pursuant to the new art. 33, only applicants who have applied for
international protection in a Member State facing a crisis situation and for which
that Member State would otherwise have been competent according to the criteria
for their determination would be subject to the relocation, and applicants
belonging to nationalities for which the percentage decision of recognition of
international protection, based on the latest Eurostat quarterly average data, is
equal to or greater than 75% of the decisions on the applications for international
protection adopted. Finally, the proposal provides that the relocation State may
refuse to relocate, or partially relocate, persons in clear need of international
protection for reasons of public order and public safety; in this case, however, it is
expected that this Member State will contribute financially to the Union budget
with a contribution of 0.002% of its GDP, to be reduced if it replaces part of the
number foreseen for it.35
35 L. Di Fabio, Il sistema europeo comune di asilo (SECA): una critica all’istituto dell’asilo a livello
dell’UE, in Europeiunite, 22 febbraio 2016.
16 CAMILLA CAFIERO
The initiative of the European Commission presents undoubted strong points,
because it goes beyond the logic of emergency and makes the principle of
solidarity enunciated in the art. 80 of the TFEU concrete, establishing a sharing of
responsibilities between the Member States. However, it appears to be an
insufficient answer. The problems posed by the migratory flows affecting Europe
require, in fact, more courageous responses and certainly a greater effort than that
deriving from proposals aimed at making specific and precise changes to the
Dublin III Regulation.
Furthermore, the reform proposal presents a general tightening of the already
established criteria and rules, above all to counteract secondary movements: the
obligations of applicants for international protection and the consequent sanctions
in case of non-compliance are clearly established, including the possible exclusion
from reception system.
However, the Commission proposal has led to numerous critiques from jurists
and organizations advocating the rights of migrants and refugees. In October 2016,
the European Council for Refugees and Exiles(ECRE) published a detailed review36
of the reform defining it “all but reasonable” and urging the European Parliament
to change it in order to make it more respectful of the fundamental rights of
asylum seekers. According to ECRE, the Dublin Regulation's reform proposal
presents two main characteristics of concern. On the one hand, instead of
rethinking the fundamentally incorrect principles underlying the European
Union's mechanisms to determine the responsibility of the Member State
responsible for examining an asylum application, the proposed amendments
reinforce many of the wrong premises of this mechanism. With some limited
exceptions, applicants are faced with stricter and unfair rules, including strong
sanctions to contrast secondary movements, limitations of the right to an effective
asylum procedure, and the possibility of seeing their application rejected because
of a transfer from one State to another. Member States, on their part, see the
inequalities in the distribution of very exasperated responsibilities: the States of
first arrival should carry out assessments of admissibility and merit before even
applying the Dublin Regulation, and would have no means for enforcing their
obligations when a member country does not respect the terms of the transfer of an
applicant.
The proposal presents an insufficient and inefficient redistribution mechanism
within which the disparity between States continues to be a key factor in the
European system of responsibilities distribution. In order for it to be understood
and applied correctly the Dublin System must be able to protect both the rights of
States and those of asylum seekers.
36 ECRE Comments on the Commission Proposal for a Dublin IV Regulation, COM(2016) 270,
October 2016.
The Dublin III regulation: critiques and latest attempts of reform 17
The Commission's proposal does not face the main reason for the failure of the
current legislation: entrusting the management of the migratory phenomenon to
geography, establishing a relationship between the country of first entry into the
European Union and its responsibility in examining the application. Finally, it is
necessary that a principle of solidarity and fair sharing between the different
countries should intervene from the moment when an applicant enters the country
of first entry and not only into a situation of particular suffering in that country.
This breakdown should take place taking into account the connection factors
between the asylum seeker and a given country, a criterion now limited to the
existence of close family ties and, in practice, scarcely applied.
For these reasons, ECRE urges the legislators to adopt a review of the entire
Dublin system and to go beyond the bland reform proposals of the Commission.
5. THE EUROPEAN PARLIAMENT POINT OF VIEW: THE EMENDED
REFORM.
On 16 November 2017, the European Parliament, in examining the first
reading of the Commission's proposal, adopted numerous amendments,
eliminating or improving some of the controversial points of the text.37
The criterion of the country of first arrival is exceeded with the introduction of
an automatic transfer system with a fixed distribution method, no longer
conditioned to exceed 150% of the quota considered sustainable for the State.38 In
fact, the report proposes to trigger the corrective redistribution mechanism when
the reception capacity of a State is exceeded, and grants a transitional period of five
years for countries with less experience in receiving asylum seekers.39
One point on which all the parliamentary groups agree is that it must not be
possible to get out of the solidarity system. In fact, the report eliminated the
possibility of paying a sum for any unaccepted asylum seeker.40 In this regard, the
rapporteur, Cecilia Wikstrom41, stressed that it is unacceptable to assign a price to
human beings seeking international protection, while observing the hostility of
some governments towards the principle of equitable and compulsory division of
asylum seekers.
Furthermore, the report states that the choice of the transferring country
should take place on the basis of the enhancement of the social ties between the
37 Report on the proposal for a regulation of the European Parliament and of the Council establishing the
criteria and mechanisms for determini ng 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)0270 – C8-0173/2016 – 2016/0133(COD)).
38 Amendment no. 167 Report of the European Parliament, 2 November 2017.
39 The first year would receive 20% of their share, the following year 40% and so on.
40 Amendment no. 178 Report of the European Parliament, 2 November 2017.
41 Swedish MEP, part of the parliamentary group of the Alliance of Liberals and Democrats for
Europe.
18 CAMILLA CAFIERO
applicants and the destination country: family ties, extended to adult children in
charge of parents, brothers and sisters, having taken a course of study in a country
or even having lived there should be taken into account when choosing the State to
transfer the request for international protection. The transfers of people, even when
it comes to extradition or expulsion, tend to be always very difficult to achieve,
even more so when they should concern tens of thousands of people. This is why
the voluntary acceptance of applicants for international protection is essential and
the Parliament's proposal to introduce additional criteria that enhance links with
the competent State goes in the right direction.42 While arguing, like the
Commission, that asylum seekers do not have the right to choose which State to
apply for, the Parliament offers the possibility of expressing preferences. Without
being revolutionary, the proposal opens a window into a coercive system that
treats asylum seekers as pawns to be moved across Europe.
Finally, the proposal eliminates the admissibility check of asylum
applications43 which would create an insurmountable administrative burden for
frontline States and sanctions for insubordinate asylum seekers.
At the same time it reintroduces the discretionary clause, which allows a
Member State to decide to examine an asylum application even if the Dublin
Regulation does not provide for it.44
However, the agreement between the European Parliament and the Council,
imposed by the ordinary legislative procedure, will be difficult to achieve. The
discussions already under way in the Council are totally disconnected from the
Commission proposal and the Parliament amendments. Member States are aiming
for solutions to prevent solidarity from becoming mandatory and leaving
everything in the hands of the Council.
On 26 May 2016 the Asylum Working Party45 started reviewing the
Commission proposal for a reform of the Dublin III Regulation. The Council
recognized the need to reform the current Dublin System to ensure a faster and
more efficient determination of the Member State responsible and a prevention of
secondary movements. However, the discussion has not yet come to an end. The
most controversial factor in the reform is the reinforcement of the principle of
solidarity and responsibility of the Dublin system. Some countries proposed
alternative amendments, clearly in contrast with the Parliament’s view. For
example, in February 2018 the Hungarian government proposed a more strict
expulsion policy and a rejection of any kind of mandatory admittance quota. In
42 C. Favelli, L’Unione che protegge e l’Unione che respinge. Progressi, contraddizi oni e paradossi del
sistema europeo di asilo, in Questione Giustizia, February 2018.
43 Amendment no. 52 Report of the European Parliament, 2 November 2017.
44 Amendment no. 67 and 125 Report of the European Parliament, 2 November 2017.
45 The Council preparatory body responsible for issues relating to the CEAS.
The Dublin III regulation: critiques and latest attempts of reform 19
addition, several Member States suggested a reduction of the “fare share”46 and an
alleviation of procedural burdens for the frontline Member States under pressure.
In May 2018 a proposal was submitted to the JHA Council for a debate. As it
became known, the ECRE immediately underlined that the proposal represented a
deterioration of the rights of refugees and asylum seekers, while making the
system too complex, with a set of different, partly overlapping procedures in
different Member States.
At the European Councils of June 2018, October 2018 and December 2018, the
EU leaders were not able to achieve any final decision on internal aspects of
migration and the European Union asylum policy, showing different position
among Member State as regards in particular the Reform of the Dublin
Regulation.47
Faced with these two clearly different positions, the Commission, as
underlined by Elena Schlein48, should have claim its political role, proposing an
ambitious solution, overcoming the criterion of the State of first entry and a real
mechanism of redistribution, but it did not. Once again it seemed more attentive to
the wishes of the Council than actually solving the problems that have always
existed and which have become evident after the recent increase in migratory
flows to Europe.
CONCLUSION
The solidarity that has been achieved so far has been a defensive solidarity,
characterized by a rhetoric based on the anxiety of invasion that has meant that the
humanitarian aspect of the phenomenon has been regulates the secondary role
compared to the issues related to security and control of borders.
It should be also noted that the real possibility of achieving an effective reform
of the system in question seems to be impeded by the lack of interest in the
adoption of rules which really allow the full sharing of responsibility among all
Member States in the management of asylum seekers, as well as a full protection of
their fundamental rights, still appearing as a primary objective to contain as much
as possible a phenomenon that is hardly contained in practice.
Beyond the possible solutions to effectively replace the Dublin system, it is
evident that the real European challenge currently concerns the entire asylum
system, which will hopefully become common not only in its intentions and
principles but also in rules and practice.
46 Number of applicants that each Member States could be expected to hande.
47 A. Radjenovic, Briefing of the adoption of Legislation by EP and Council, European Parliament,
March 2019
48 Italian MEP of the parliamentary group Progressive Alliance of Socialists and Democrats in the
European Parliament.
20 CAMILLA CAFIERO
Secondly, an aspect which runs counter to the protection of the fundamental
rights of applicants for international protection and which represents a further
weak point of the current Common European Asylum System is that of the
measures to combat immigration. The actions undertaken in this context show a
central role of the Member States along the external borders of the Union, which
are more exposed to migration flows, particularly the southern border. This model
is characterized by the development of tools for cooperation with countries of
origin and transit of flows aimed at fighting immigration. Through these policies,
Member States try to overcome the problem of the vulnerability of their borders
through an anticipation of the control activities, which takes the form of an
outsourcing of surveillance measures. Given that the instruments of cooperation
do not provide adequate guarantees to protect the asylum seekers, the impact of
the externalization of border controls in terms of access to international protection
appears to be very significant: indeed, through this policy, there is the
establishment of substantial barriers on the borders of the European Union and as
a result the application for asylum is hindered. This consideration is confirmed by
the fact that in the presence of certain measures aimed at preventing the entry of
illegal immigrants, there is a decline in the applications for protection.
Finally, outside the European Union, the true reform of the Dublin Regulation
presupposes the establishment of protected humanitarian channels and
mechanisms to manage the applications for international protection outside the
European territory. The prediction of a so-called Protected Entry Procedures49
would allow a number of benefits to be achieved: to significantly lighten third
States that are more responsible for the reception of asylum seekers and refugees,
whose implosion could trigger other and much more serious crises; to enable those
entitled to reach the Dublin space safely; to fight against the transnational
organized crime that profits from the trafficking of migrants and of human beings;
to contain the indistinct flows, considering that a large number of applications for
international protection presented in the European Union are unfounded; to
achieve a better use of the existing public resources, both from the States and from
the Union.
It is difficult to say whether these or other proposals will meet the favor of the
Member States. The signals are not encouraging. The number of States that
restored border controls is on the rise, invoking the derogation provided for by the
Schengen Agreements. Above all, from the examination of the practice, it emerges
49 The Protected Entry Procedure is defined as “an overarching concept for arrangements
allowing a non national to approach the potential host State Outside its territory with a claim for
asylum or other form of international protection and to be granted an entry permit in case of positive
response to that claim, be it preliminary or final”. G. Noli, J. Fagerlung, F. Liebaut, Study on the
Feasibility of Processing Asylum Claims outside the EU against the Background of the Common European
Asylum System and the Goal of a Common Asylum Proc edure , Final Report, the Danish Centre for Human
Rights, European Commission, 2002.
The Dublin III regulation: critiques and latest attempts of reform 21
that the EU's immigration and asylum policy is essentially focused on two
complementary lines: the securing of external borders, to prevent illegal crossing,
and the assistance to third countries that host subjects in need of international
protection. However, the Union action risks appearing as not effective and not
credible. On the one hand, the tightening of the measures against irregular
immigration does not produce the expected results, appears to be unsustainable
economically and involves exorbitant human costs. On the other hand, the
cooperation with third States represents the mentioned desire of the Member
States to externalize the control of migratory flows outside European territory,
limiting access to the European borders of foreigners who, in principle, should
benefit from the right to cross them. This practice is the demonstration that today
the States, in order to solve a problem that seems to be now unmanageable without
a rethinking of the whole immigration and asylum system, are willing to pay to
stop a wave of migration perceived as unacceptable.
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22 CAMILLA CAFIERO
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