It is time to move beyond the Dublin logic

Dublin IV is built on deterrence… the overriding imperative being to prevent asylum seekers from arriving spontaneously; and block them in the member state of first entry.

Anneliese Baldaccini
20 April 2017

Near Idomeni, thousands of mainly Iraqi and Syrian refugees and migrants were stranded by a Balkan border blockade, March 2016. NurPhoto/Press Association. All rights reserved. European institutions are currently discussing the proposals published by the European Commission last year on how to deal with asylum seekers in Europe. They seem, however to be wilfully ignoring the fact that the Commission’s design for a new Common European Asylum System (CEAS) is already failing in the two countries where their vision is being piloted, notably Italy and Greece.

Amnesty International has documented the human rights violations which these egregious failings lead to in two recent reports: Hotspot Italy - how EU’s flagship approach leads to violations of refugee and migrant rights, and Greece: A Blueprint for despair – the human rights impact of the EU-Turkey deal.

Both the hotspot approach and the EU-Turkey deal were a response to the unprecedented peak in the number of arrivals to Europe’s southern countries in the course of 2015. While the deal’s main objective was to bring down the number of migrants and refugees arriving in Greece, the hotspot approach’s primary aim was to stop irregular onward movements of refugees and migrants within the EU’s Schengen area. That was to be achieved by enforcing the much discredited Dublin rules and ensuring comprehensive registration and fingerprinting by Italy and Greece of all those arriving to their shores. This was meant to ensure the possibility of them being returned to Italy – and eventually also to Greece, once conditions there allow for the reinstatement of Dublin transfers.

The flipside of reviving the crumbling Dublin system was a solidarity mechanism in the form of an emergency relocation scheme, adopted in September 2015 and providing for the onward transfer of up to 160,000 asylum seekers to other EU countries for processing there. The solidarity component of the plan soon proved largely illusory with just over 13,596 people relocated from Greece and Italy to other European countries to date, against over 350,000 sea arrivals to these countries in 2016 alone.[1]

Amnesty International’s research has exposed how the toxic mixture of significant pressure on Italian authorities to implement the hotspot system with no concrete solidarity – only about 4,000 asylum seekers have been relocated to date – has led to a number of human rights abuses.

Firstly, pressure to increase the fingerprinting of people disembarking in Italian ports has seen rates nearing 100% in hotspots from 36% in September 2015. However reaching such rates has come partly through the imposition of coercive measures, such as detention and the use of force – with many documented cases of arbitrary detention and serious allegations of excessive use of force and even ill-treatment.

Secondly, a flawed process has been put in place to screen individuals disembarking in Italian ports in order to quickly establish an assumed legal status and channel individuals into the asylum, relocation or expulsion routes in the matter of hours and days. Lastly, pressure to repatriate, without expulsion procedures ensuring individualised non-refoulement checks, has led to a number of questionable returns, such as the case of Sudanese nationals (including from war-torn Darfur) repatriated in August last year on the basis of a ‘Memorandum of Understanding’ with Sudan.

It is clear that the hotspot approach has served primarily as a reaffirmation of the first entry rule under the Dublin system, with relocation serving as a fig leaf and only marginal attention being paid to the provision of information to, and adequate screening of, those disembarked. Over 180,000 men, women and children arrived in Italy through the dangerous Central Mediterranean Sea route in 2016 – another 20,000 in the first three months of 2017. Under the Dublin IV proposal, responsibility for processing of their asylum claims, their reception, their long term residence or expulsion would continue to rest primarily on Italy.

On the Aegean side, with the excuse that the new CEAS should be crisis-resistant, measures are being shaped in defiance of the current asylum acquis: mandatory inadmissibility procedures, use of safe country concepts which do not meet key safeguards set by EU law, limits to the right to an oral hearing at appeal stage. Greece, which has been pressured to change laws and practices to pave the way for the implementation of the EU-Turkey deal is a significant test case of this rolling back of standards.

The deal has set a dangerous precedent in the EU’s approach vis-à-vis cooperation with third countries. From seeking cooperation in preventing departures from those countries and readmitting irregular migrants – in return for a significant disbursement of money – to returning everyone, migrants and those in need of international protection on the assumption that they can find effective protection in the country they are sent back to under the EU’s “safe third country” and “first country of asylum” rules.

For asylum seekers who have arrived in Greece after the entry into force of the deal on 20 March 2016, this has meant facing significant barriers to accessing the asylum system, in particular for certain nationalities, severe overcrowding on islands with people being held in insecure and undignified conditions for a considerable period of time, and the risk of return to Turkey despite not having access to effective protection there.

As yet, those belonging to vulnerable groups – if identified as such – and those falling under the Dublin rules concerning family reunification are exempted from fast-track procedures. However, even this exemption came under attack from the European Commission: in an action plan of December 2016, the European Commission recommended that Greece revoke these exemptions so as to allow the return of even vulnerable asylum seekers, or those with family connection elsewhere, back to Turkey.

Similar rules, where inadmissibility decisions override family rights, have been proposed by the Commission in the reform package. The Dublin IV proposal in particular is nothing but a codification of the system being tried out in Greece to implement EU-Turkey type of deals.

The CEAS reform, especially the architecture of the new Dublin proposal, betrays the EU’s focus on blocking future arrivals. Dublin IV is built on deterrence, the whole new CEAS is built on deterrence: the overriding imperative being to prevent asylum seekers from arriving spontaneously; and block them in the member state of first entry.

What are the incentives for member states of first entry to comply with the new system proposed by the Commission? A solidarity mechanism that is administratively cumbersome, geared to taking only a fraction of asylum seekers and non-mandatory in any event.

What are the incentives for asylum seekers to comply with the system? None. They face sanctions for non-compliance, in the form of acceleration of their asylum claim or withdrawal of support. The attempts to move irregularly through EU borders (with people refusing to be fingerprinted and noticeable public order issues in border towns such as Ventimiglia, Como and Calais) are linked to the absence of any incentive and the focus on deterrence only.

A system that works should be able to accommodate the drivers of irregular movement both to the EU and within the EU. There is nothing whimsical in the choices people make in this respect, their choices are dictated by the need to escape violence, insecurity or their inability to build sustainable livelihoods where they are.

They put their lives in the hands of unscrupulous smugglers because of lack of any alternative ways to travel legally and safely. The objective of the CEAS should not be to deter asylum seekers. Deterrence doesn’t work: it only provides business opportunities to human smugglers and traffickers.

The reform of Dublin will fail unless it is grounded on solidarity and robust human rights standards. We know that solidarity was never the objective of the Dublin system – it was created in a time when legal travel to the EU for asylum seekers was by and large still possible. Today, with the lack of legal means to travel in order to seek asylum, maintaining the first country of arrival principle to determine responsibility, or even reinforcing it as under the current proposal, is simply not an option.

A new system should be predicated upon fair distribution based on a quota assigned to each member state, protect family rights and accommodate other meaningful connections asylum seekers might have with a member state.

[1] https://data2.unhcr.org/en/situations/mediterranean

The 2017 CEPS Ideas Lab – a key annual event on EU policy organised by the Brussels-based think tank, the Centre for European Policy Studies – asked how such core EU challenges as Rights & Security can be implemented with respect for the EU rule of law and fundamental rights. Cooperating with openDemocracy, we bring the resulting debates to this dedicated page.

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