Saturday, 16 February 2013

The Dublin II Regulation - Ten Years On, Is it Working?

As the Dublin II Regulation Enters its Tenth Year - Is it Working?

Council Regulation (EC) No 343/2003
What is the Dublin II Regulation ?

The Dublin II Regulation is an EU Law which determines which Member State should examine an application for refugee status by an asylum seeker.  In most cases, the first Member State through which the asylum seeker entered the EU is deemed the responsible state, although there are some exceptions.

It was called the Dublin Regulation II because its predecessor was initially signed in Dublin, on the 15th of June in 1990.  Bringing together EU member states, and now also Norway, Iceland and Switzerland, the idea behind the the regulation was to put an end to a perceived problem of 'asylum shopping' and multiple asylum claims by those seeking protection in Europe. 

How it Works
To determine which state will be responsible for assessing the asylum application, the law examines (1) the first Point of Entry, (2) Principles of Family Unity and (3) Issuance of Visas and Residency Permits. Once established, this generally means that the asylum seeker will be returned to that member state, and will not be allowed to make an asylum application in the state of their choosing or current location.

Dublin II Countries
In effect, this means that member states which border Non-EU states (Greece, Malta, Italy), are likely to end up responsible for more arriving asylum seekers than those without external borders (Luxembourg, Belgium, the Netherlands). If asylum seekers make their way north west across Europe, they will likely be transferred back to Athens, Valetta and Rome once identified.

This situation was highlighted with the emergence of the Libyan Crisis, as well as conflicts in Iraq, Afghanistan and Syria, as  significant numbers of asylum seekers arrived via Greece, Italy and Malta. 

How does it effect Ireland
Asylum seekers making applications in Ireland are routinely fingerprinted using the EURODAC system. This system is designed to determine whether the applicant has previously applied for asylum in another Member State, as well as to search relevant immigration and identification databases across Europe.  If the asylum seeker tells authorities in Ireland that they arrived hidden in a truck with drove through Country X along the way, or if the EURODAC system shows a match from Country X, the Dublin II procedure will kick in and Ireland will request a transfer to that country.

Dublin II Transfers - Greece
There are a number of exceptions to the rule, such as where the asylum seeker had been issued a visa by another Member State, where the current Member State decides to allow an exception (0.1% of cases) or, where the asylum seeker already has family members resident in a Member State (0.5% of cases). Well, that is how its supposed to work anyway!

Although the system was criticized by practitioners, human rights groups and others right from the start, the situation became more complex with the financial crisis in Greece. In effect, it became apparent that Greece was no longer able to operate a functioning asylum determination system, and this raised concerns for the safety of asylum seekers, particularly children and those with medical needs. 
Protests against Dublin II at Frontex, Warsaw

This caused some states to suspend the 'transfer' of minors to Greece, and later also to Malta and Italy ,following a number of high profile cases, as well as concerns raised by Emilie Wiinbald and others of the UNHCR.  In the subsequent months and years, five separate European Court of Justice rulings set to 'clarify and civilize' the process. In cases such as MSS, NS, ME and the K Case the court expanded and promoted the humanitarian clause where by member states can choose to not implement the transfer process on humanitarian grounds. They also pushed the responsibility of Member States considering Dublin II transfers to examine systemic failures by other member states, as well as  to look at all the information available to them as regards the risk on non-refoulemont (risk the receiving state will deport them to a country where they may be subject to torture).  But still, the transfers continue.

Deportation at Dublin Airport

Impact on Ireland
The figures show that the majority of arriving and departing Dublin II transferees were to and from the United Kingdom over the past ten years.  There are a number of reasons for this, mainly related to the fact that Ireland and the UK share a common travel area, separate to the Schengen travel area on mainland Europe.  With this in mind, one must ask whether there is any point transferring/deporting people to the UK, a horrifically expensive and generally unpleasant experience for all involved,  when they can simply return via Belfast at their leisure. Equally, Dublin II transferees sent to Ireland can simply return to the UK days after arrival. So, is it worth the hassle?

Dublin III on the way?
MEP Wikstrom 
Last month, to highlight ten years of the Dublin Regulation, MEP Cecilia Wikstrom (Rapporteur on the recast of the Dublin II Regulation) hosted a conference which saw the launch of a report by Forum Refugies and the European Council on Refugees and Exiles (ECRE) which  was highly critical of the impact these transfers have on asylum seekers. 

At the conference Philip Amaral (JRS Europe) spoke of one example case where an Afghan man* who was transferred 15 times between member states. Michael Diedring (ECRE) went further, claiming that there is overwhelming evidence that the system does not work and that it is an obstacle to general solidarity in Europe. 

Frontex - The EU 'Border Force'
Despite concerns, the European Commission is currently working on version 3.0 of the regulation, which aims to implement 'significant humanitarian reforms'.  Mattias Oel, (European Commission) pointed out that the updated regulation will halt transfers to Members States where asylum seekers will experience inhumane or degrading treatment. But are we missing the point here?

Should States not be forced to protect Human Rights
What good is EU Membership if we can't trust other Member States to protect Human Rights?  MEP Thimothy Kirkhope (Former UK Immigration Chief and Minister) views the Dublin II system as a first step in 'burden sharing' but points out that the system is struggling because the European Commission is failing to enforce common standards for asylum across Europe. Criticizing Greece and other member states, he asked the Commission to stop accommodating Member State failures, rather to work to assist them with capacity building and to demand basic standards of protection.

Is it Fair on States? Is if fair on Transferees?
With 'front line' countries struggling with large numbers of applicants, is this an equitable and fair system for Europe to cooperate and share the burden? Further more, now that we know that some member states are clearly not implementing basic standards of human rights protection, is it right for  us to transfer asylum seekers to where they might not receive the protection they need?

Frontex on Greek Turkish Border
MEP Cecilia Wikstrom who is tasked with preparing for the redrawing of the regulation asks that critics wait and see how the new Common European Asylum System works when it gets up and running.  Her optimism is not shared by her predecessor Dennis De Jong however, who states that the system is doomed to fail in the end, and complains that the lack of examination of the costs involved is a mistake. In his view, the system 'encourages Member States with difficult borders to make the system as bad as possible and allow asylum seekers to pass without evidence'.

Matthias Oel of the European Commission hopes to counteract these critics and doomsayers, pointing out that his office will change its role from regulation making to implementation and monitoring, and says that this is the wrong time to put the whole Dublin Regulation system in question.

Summary - Time for a full Review
Surely this is exactly the right time to question the system, when work is underway to change and improve how it actually works.  Michael Diedring of ECRE says that even with the new changes, the system will continue to create hardship, as long as there is an asylum lottery in Europe. His point here is paramount to understanding the nature of the problem.  As long as countries implement separate systems, and where this creates (in reality or in perception) a better chance of success in one place over another, asylum seekers will continue in their effort to seek the best protection on offer.  

With open borders across Schengen States, and with open borders inside the Irish UK Common Travel area, why are we wasting money transferring asylum seekers endlessly around in circles, rather than focusing on the real problem of burden sharing, setting standards and enforcing the implementation of basic human rights to which all member states signed up!

In my opinion, the Dublin Regulation System is pointless and should be scrapped.

Read More: 
The Legislation - Click Here 
Criticism -  'The Dublin II Regulation - Lives on Hold' - Click Here 
Deportations in Operation - 'When Deportations Go Wrong' - Click Here 
Greek Forum for Refugees - Click Here 
European Asylum Support office - Click Here 

Read More About Sample Afghan Case:
*A 23-year-old Afghan man, single, arrives to the EU in 2009. He first arrives through Greece, then goes to Macedonia, Serbia and then to Hungary. This journey took one year, so now it’s 2010. In Hungary, he was detained and his asylum claim rejected. He left for Germany, where he was jailed and returned to Hungary. Then he went to Austria and was detained for 2 months; upon release, he fled to Switzerland. From there he was deported back to Hungary. Then to Germany again, 3 months in jail; deported back to Hungary. He again went to Austria but was sent again back to Hungary. He went back to Switzerland and spent another 3 months in detention. He tried several more journeys to Germany, always failing. Basically his entire time in Europe was spent in detention. During one of his last times in Switzerland he tried to hang himself, but was saved at the last moment by detention centre staff. 

1 comment:

  1. European Court of Human Rights bars deportation of Afghan migrants -