On 16th September 2020, Ursula von der Leyen, the President of the European Commission, announced in a State of the Union address a New Pact on Migration and Asylum. The new pact seeks to abolish the Dublin Regulation III, in furtherance of the recommendations the Commission made in 2016, which would be replaced with an Asylum and Migration Management Regulation (‘AMR’). The pact consists of three main pillars: discouraging migration by supporting origin countries, modernising border security, and sponsoring returns procedures of asylum seekers or extending solidarity to member states experiencing exceptional migratory influx.
The Dublin Regulation III was preceded by the Dublin Regulation II (‘Dublin II’) and the Dublin Convention (‘Dublin I’). These regulations are considered the cornerstone of the EU’s harmonised system of asylum protection known as the Common European Asylum System (‘CEAS’). CEAS was established in 1999 to grant freedom, security and justice to the third-country nationals who are unable to secure legitimate protection of their state of origin. In line with the obligation of non-refoulement under the 1951 UN Refugee Convention , Article 18 of the EU Charter guarantees the right to seek asylum. For CEAS to work efficiently, a clear and workable method of state responsibility to determine asylum claims was required. To this end, Dublin II was adopted in 2003.
This blog post is divided into six parts. The first two parts focus on Dublin II, its legal framework and the irregularities that led to Dublin III. The third part is devoted to Dublin III and the problems it caused at the time of the 2015 refugee crisis. The fourth part provides a brief overview of the new pact. In the fifth and the sixth part, the author discusses the new pact and analyses the AMR in light of the normative inconsistencies in Dublin III.
I. The legal framework of Dublin II
The idea behind Dublin II was to create a “one-stop” policy of asylum protection to curb the issue of multiple asylum applications (asylum shopping) and unnecessary movement to seek asylum (refugees in orbit). The Eurodac database system which came into effect for the efficient functioning of Dublin II along with the regulation forms the Dublin System.
According to Article 7 of Dublin II, the first member state to be responsible to assess an asylum application would be the one where the family members of an asylum seeker reside. If an asylum seeker does not have a family member in any of the member states, then a member state in which an asylum seeker has a residence permit or a valid visa would take the responsibility (Article 9). Finally, if an asylum seeker has crossed the border through irregular channels by land, sea, or air, then the member state where an asylum seeker enters the EU first (state of first entry) would be responsible for the asylum claims (Article 10). There were certain substantive issues with Dublin II which are highlighted below with the help of the European Parliament’s 2008 evaluation report (‘EP report’).
II. Legal inconsistencies in Dublin II
Dublin II contained three main issues: a missing burden-sharing mechanism, differential and discriminatory treatment to asylum seekers, and unregulated detention. All three are briefly discussed below.
A. Lack of burden-sharing mechanism
Dublin II did not entail a burden-sharing mechanism. Rather, it only incorporated a strategy to determine asylum claims by member states in a normal situation of migration. It was already observed in the EP report that member states at the external borders faced challenges due to the state of first entry criterion as Dublin II was not designed to handle the mass influx. The fall-out due to the state of first entry criterion was visible in the 2015 refugee crisis (infra, part III.).
B. Differential and discriminatory treatment of asylum seekers
Second, Dublin II resulted in differential and often the discriminatory treatment of asylum seekers. Differential treatment was observed as Dublin II did not mandate a uniform asylum practice to be followed by member states. Further, discriminatory treatment was evident especially for the state of first entry criterion. For instance, the Czech Republic in 2010 subjected a gay asylum seeker to Penile Plethysmography tests (arousal tests) to determine his sexual orientation and gender identity claims of asylum. In A, B, C v. Netherlands, the Court of Justice of the European Union (‘CJEU’) held these tests to be inconsistent with human dignity (Article 1), the prohibition against torture (Article 4), and intrusive to the right to privacy (Article 7) under the EU Charter. Moreover, these tests were not necessary for the assessment of a claim under EU law (see in particular Qualification Directive 2011/95/EU).
In N.S. v Secretary of State for the Home Department and Others , the CJEU observed that member states have the obligation under Dublin II to examine and take responsibility of a claim where due to the systematic deficiencies in the asylum system, the transfer to the ‘responsible member state’ would expose an asylum seeker to a risk of violation of his fundamental rights under the EU Charter.
C. Issue of unregulated detention
Many member states detained asylum seekers, including unaccompanied migrant children (‘UMCs’), during the assessment of their claims, during the transfer to other member states and/or during the appeal process against the transfer. Article 5 of the European Convention on Human Rights (‘ECHR’) necessitates that member states comply with the requirement of procedural safeguards while subjecting an asylum seeker to detention. The transfer of responsibility of asylum claims from one member state to another did not require their permission as has been observed in the EP report. Many asylum seekers were left with no option but to file an appeal against such transfers as they did not have faith in the asylum system of another member state (p. 25 of the report). In M.S.S. v Belgium and Greece, the European Court of Human Rights held that detention standards under the Dublin system must not be inconsistent with human dignity and prohibition of torture and degrading treatment under the ECHR.
In 2013, these inconsistencies were addressed to a certain extent as Dublin II was replaced by the recast Regulation (EU) No 604/2013 or Dublin III along with the Eurodac Regulation (EU) No. 603/2013. Dublin III added a mechanism of preventive measures to tackle unanticipated migratory situations and regulated the detention procedure by adding procedural safeguards through Article 28 of said regulation. However, the state of first entry criterion was retained in Article 13 of Dublin III, no measure was taken to address the mandatory burden-sharing issue, and asylum seekers were still subjected to differential treatment. These shortcomings provide one explanation for why member states failed to effectively manage the 2015 crisis.
III. Dublin III and its practical implications
Article 33 of Dublin III recognises a situation of unanticipated migratory pressure. This means that a particular member state is facing a substantiated risk of particular pressure which would render the asylum system of the concerned member state dysfunctional.
In such a situation, the Commission shall, in cooperation with the European Asylum Support Office, make recommendations to the member state at hand to draw up a preventive action plan. If the preventive action plan fails to address the situation, the Commission may request the concerned member state to draw up a crisis management plan. But none of these plans is obligatory. Article 33, primarily because of its non-obligatory nature and also because of the state of first entry criterion, proved ineffective when the EU was confronted with an unprecedented refugee crisis wherein more than 1.3 million first-time asylum seekers came to secure asylum.
Further, the measures taken by other member states under Article 33 are mostly influenced by a political consensus between the member states. This was especially evident during the 2015 crisis when, with the exception of Germany, no other state invoked the discretionary clause provided in Article 17 of Dublin III. Article 17 allows member states to show optional solidarity by sharing the burden of assessing additional asylum applications. Recently, in Commission v Poland, Hungary and the Czech Republic (the so-called ‘refugee quotas case’), it was found that the three member states had failed to meet their obligations under Articles 5(4) to (11) of the Council Decision (EU) 2015/1601 to mandatory relocate 160,000 asylum seekers from Greece, Italy, and Hungary in the 2015 crisis.
Further, the issue of discriminatory treatment similar to the Czech Republic 2010 case (mentioned above in Part II) came up again in F v Bevándorlási when Hungary subjected a gay asylum seeker to projective personality tests. Once again, the CJEU held these tests violate the EU Charter rights. So, in essence, the lack of an effective burden-sharing mechanism and the discriminatory treatment of asylum seekers remain unaddressed under Dublin III.
IV. About the new pact on Migration and Asylum
The new pact proposed by the Commission in September 2020 would bring major changes to the EU’s CEAS regime through (no less than) nine new legislative instruments. The new additions include, for instance, a Recommendation on Search and Rescue Operation by Private Vessels, a new Border Screening Regulation, a Facilitation Directive to deter criminalisation of non-governmental organisations, a Crisis and Force Majeure Regulation to tackle a situation similar to COVID-19, and a common EU return system. But it retains the state of first entry criterion, the Eurodac database (yet with amendments), the Asylum Procedures Regulation (again with amendments), the Qualification Directive, and the Reception Conditions Directive. In what follows, the author will focus only on the normative inconsistencies of Dublin III and whether the AMR would tackle these in a coherent manner.
V. The Commission’s Proposal for an Asylum and Migration Management Regulation
The AMR seeks to address two important inconsistencies of Dublin III: the urgent requirement of burden-sharing through mandatory solidarity without which any unanticipated situation of mass-influx cannot be dealt properly and the issue of discrimination faced by asylum seekers under Dublin III.
With regards to the second issue, the AMR suggests that member states would be required to integrate their asylum strategy by drawing up national strategies in conformity with EU law to maintain uniformity. To keep member states in line with their national strategies, a monitoring system called of Migration Management Report (‘MMR’) would be established. An MMR would also be published annually for the anticipated disembarkations from search and rescue operation.
On the first issue, the AMR suggests an additional criterion of educational qualification to determine state responsibility. Under the new regulation, there would be five criteria: the best interests of a child, family reunification, residence or visa permit, educational qualification or diploma of an institute in a member state (Article 20 AMR), and state of first entry. Further, the AMR requires mandatory solidarity and fair responsibility-sharing between member states based on Article 80 of the Treaty of the Functioning of European Union (‘TFEU’). This is also in line with the CJEU’s recognition in Slovak Republic and Hungary v Council of the European Union that the principle of solidarity under Article 80 TFEU cannot be optional (para. 304).
The two sub-parts below explain mandatory solidarity under the AMR and when and how the crisis management plan would be triggered.
A. Mandatory solidarity mechanism in a situation of pressure/anticipated pressure
The mandatory solidarity mechanism is designed to be invoked in a situation of ‘pressure’ or ‘anticipated pressure’ through four stages: trigger, assessment of needs, response, and confirmation.
In particular, the Commission would be bestowed with the duty to assess whether the concerned member state is in a situation of pressure/anticipated pressure. Once this is confirmed, the solidarity mechanism would be triggered. The Commission would then holistically assess the overall needs of the member state and set out the anticipated measures in a report, after close consultation with the member state. The third stage is to examine the needs of the concerned member state to adopt appropriate measures. The measures would be divided into three parts: relocation, return sponsorship, or other measures. Each member state would be required to submit a solidarity response plan once it has been analysed that there is a situation of pressure/anticipated pressure indicating the measure or the combination of measures they want to fulfill. The choice of measures would stay optional, which means that a contributing member state can simply opt for other measures like capacity-building, operational support, or engagement with other non-EU member states for additional support instead of relocation or financial assistance. The last stage is legal confirmation wherein the Commission would confirm the measures taken by each member state within two weeks of submitting the solidarity responses.
Member states that would opt for “other measures” would nonetheless be subjected to a critical mass correction mechanism which is a safeguarding provision to ensure sufficient solidarity contributions are maintained. This means that they would be asked to revise their solidarity responses if the relocation or return sponsorship falls short of more than 30% of the total requirement. However, no member state could be compelled to opt for relocation.
Solidarity contributions would be made through the method of ‘fair share’ depending on the size of the population of the member state and its total gross domestic product. In return, contributing member states could get incentives such as a 10% reduction in their fair share, if they prove that over the last five years, they have been responsible for “more than twice the EU per capita average of asylum applications”. In such cases, other member states would have to contribute more to balance the requirement of total solidarity.
B. Crisis management Mechanism
The crisis management plan is meant to be invoked in a crisis situation where the mass scale of irregular arrivals would render the overall asylum, reception or return mechanism dysfunctional. It would be triggered through the Migration Preparedness and Crisis Blueprint mechanism in two stages: monitoring the migratory situation in the EU and outside its borders, and activating the crisis mechanism.
This mechanism, also referred to as ‘Blueprint Network’, would be regulated by the Commission. This Network would be coordinated along with the rest of the member states, relevant EU agencies, and the European External Action Service that would draw up an action plan after the assessment of needs of the concerned member state. The Blueprint Network would support the decision such as financial assistance, establishing hotspot, and other operational support. Most importantly, member states would be able to derogate from the asylum and returns procedures during the crisis, although the fundamental rights of the asylum seekers and especially the principle of non-refoulement, would have to be upheld.
VI. A critical assessment of the AMR
The new mandatory solidarity mechanism would keep relocation strictly optional which means member states could face a similar situation as in the 2015 crisis. As we have observed in the Commission v Poland, Hungary and the Czech Republic, unless there is mandatory solidarity in a form of physical relocation, the issue of burden-sharing cannot be solved efficiently. In the proposed AMR, frontline member states are given the freedom to choose sponsored returns over financial assistance. In addition to this, the pact might bestow new duties on frontline member states through pre-entry screening requirement of asylum seekers (except UMCs) under its Border Screening Regulation for the entry or return without granting them entry to the EU territory.
A better approach would be to incorporate a provision of physical relocation similar to the emergency relocation mentioned under Article 78(3) TFEU. This would allow member states to take emergency measures in the event a member state is confronted with a sudden inflow of migration. Article 78(3) was invoked in the 2015 crisis to relocate asylum seekers from Greece and Italy as mentioned above in Slovak Republic and Hungary v Council of the European Union and during the recent relocation of UMCs from Greece. Such mandatory relocation is necessary because when member states are confronted with an exceptional migratory situation as happened in 2015, they tend to act defensively rather than showing collective response.
The AMR, once negotiated and approved, might help to overcome the failures of Dublin III. The MMR could be seen as an important introduction as it would play a pertinent role to ensure that member states draft uniform asylum policies taking into consideration that normative inconsistencies under Dublin III are not repeated.
The EU is in need of an asylum policy that could actually take into account the socio-economic needs of member states at the external border since they are the shield of the EU in a situation of exceptional migratory influx. The needs of these member states must be taken into consideration in order to gain their confidence; without the mutual trust of each member state, CEAS can simply not work efficiently.
However, despite the previous failures of the state of first entry criterion, the Commission has decided to retain this in its proposal. The question remains whether the new system seeks to lessen the additional burden on some member states caused by state of first entry criterion. The answer is probably not affirmative as no measure can act as a substitute for physical relocation. Lastly, the pact overall cannot be considered as pragmatic and realistic because it nevertheless circumvents the main issue of fair and sustainable relocation of responsibility. Moreover, it creates legitimate doubts about the new mandatory solidarity mechanism.