by Daniela Lukits
The "Dublin system" regulates which state is responsible for receiving refugees and processing asylum applications within the EU. In light of current events, it is once again being put to the test.
In 2015, we are experiencing an unusually large influx of refugees into the EU, often referred to in the media as the "refugee wave" or "refugee crisis". First things first: it's not that bad, even if the number of asylum applications this year is likely to exceed the previous record from 1992 (when 672,000 applications were submitted across the EU), as over 432,000 applications were registered in the first half of the year. However, the "Dublin system", which regulates the reception of refugees and the responsibility of the individual EU states and has been suffering from massive weaknesses for years, can hardly cope with the high number of new arrivals in a few countries, which is why chaotic conditions are occurring in some places.
Criteria and regulations
Before discussing the problems and shortcomings of this system, however, a brief explanation is in order.
The "Dublin system" actually refers to the "Dublin III Regulation"[1] adopted in 2013, which is so called because it modifies its predecessor, the "Dublin II Regulation" of 2003, which in turn replaces the Dublin Convention concluded in 1990. This regulation lays down criteria and procedures for determining the Member State responsible for examining an application for international protection, which apply to all EU Member States as well as Norway, Switzerland, Liechtenstein and Iceland.
The allocation of responsibility is based on the fundamental idea that every asylum application submitted by third-country nationals must be examined by a member state. On the one hand, this is intended to prevent a person from submitting several applications in different member states or being able to choose the country in which their asylum procedure is carried out. In addition, the regulation lays down uniform standards for the asylum procedure, so that it should theoretically make no difference whether the procedure is carried out in Italy, Sweden or Estonia.
When the asylum application is submitted, the so-called admission procedure begins, in which the responsible member state is determined. In principle, if the applicant has entered a member state illegally (as in most cases), this member state is responsible for carrying out their asylum procedure. The so-called Eurodac Regulation[2] was adopted to make it easier to find out which Member State the person concerned entered first: Fingerprints are taken from every person who has entered the country illegally and has reached the age of 14 and fed into a database that can be accessed by the asylum authorities in all member states. However, the responsible member state can also be determined on the basis of other evidence, such as the mere statements of the asylum seeker concerned.
There are exceptions to this basic rule if, for example, an applicant has a valid residence permit or a valid visa from a member state or has family members in another member state.
The procedure for unaccompanied minors is also particularly important, as the best interests of the child must be one of the primary considerations of the member states, as is emphasized in several places in the regulation. If unaccompanied minors apply for international protection, either the Member State in which the minors' family members are present or the Member State in which the minors have lodged their asylum application is responsible. It must also be ensured that unaccompanied minors are provided with representatives throughout the asylum procedure.
Shortcomings in practice
So much for the theory; in practice, the Dublin II Regulation has already proven to be flawed, although in my opinion some of the shortcomings must have been quite foreseeable. Even the innovations of the Dublin III Regulation ten years later have not changed the fundamental system. As the vast majority of people seeking protection enter the EU by land or sea, the countries on the external borders - especially Italy and Greece - are exposed to a much greater burden. Even before the outbreak of the Syrian civil war, the reception camps in Malta were hopelessly overcrowded and the Greek asylum authorities were barely able to function. As a result, many refugees arriving in these countries were not even registered, did not receive any social benefits, ended up traveling unhindered to other member states and were deported back to the countries actually responsible after a months-long admission procedure, where they expected no better conditions than before.
In the case of Greece, the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) reacted to these abuses after some time and declared deportations to this country to be contrary to human rights. As a result of this case law, the Dublin III Regulation, which came into force more than two years ago, now stipulates that asylum seekers may not be transferred to a member state that is actually responsible if its asylum procedures or reception conditions have systemic deficiencies that could result in the risk of inhuman or degrading treatment. In such a case, the examination of responsibility must be continued on the basis of the criteria described above; if no other responsible member state can be identified, the state in which the asylum seeker is staying becomes responsible. However, this provision disadvantages those asylum seekers who are already in the country responsible for them and are exposed to undignified detention and living conditions there. Another problem is that the national authorities can decide at their own discretion when examining the situation in another member state and there is no uniform procedure.
The "Dublin system" under scrutiny
The "Dublin system" is now once again under scrutiny. Now that the "Balkan route" via Serbia and Macedonia has recently established itself as an alternative to the even more dangerous route across the Mediterranean for refugees mainly from Syria and Afghanistan, Hungary has also been the destination of numerous refugees in recent months. As the country felt abandoned by the other member states, it allowed the arrivals to travel on to Austria without registration, from where most of them traveled on to Germany, effectively suspending the Dublin III Regulation.
In view of this drastic reaction, it is clear that the "Dublin system" needs to be subjected to a long-overdue review and fundamentally changed. The main problem is that, as already mentioned, refugees are concentrated in certain member states, while others are neither on an external border nor a popular destination country. In Germany alone, for example, over 220,000 asylum applications were submitted in 2014, compared to just a few hundred in each of the Baltic states.
An obvious approach to reorganizing the responsibility system would of course be to distribute all arriving refugees among all member states, for example in terms of their population size or GDP. However, how a "fair" distribution should be carried out is still the subject of heated political debate. Of course, in such a system, the factual conditions in terms of fair procedures, appropriate accommodation, help with integration, etc. would also have to be at least approximately the same in all member states. It is certainly not easy to achieve this, especially as political interests also play a major role. A solution accepted by all member states is therefore still a long way off. For the time being, the "Dublin system" will probably have to be used.
About the authors
Daniela Lukits is a lawyer and a graduate of the "Migration Management" master's program at the University of Salzburg. She worked at the University of Salzburg as a senior scientist in the department of international law and worked as a legal advisor for asylum seekers at the Traiskirchen Federal Care Center. Ms. Lukits has published in particular on the topic of age assessment of unaccompanied minors seeking asylum.
