What is the Dublin System?
The recast Dublin Regulation establishes a hierarchy of criteria for identifying the Member State responsible for the examination of an asylum claim in Europe. This is predominantly on the basis of family links followed by responsibility assigned on the basis of the State through which the asylum seeker first entered, or the State responsible for their entry into the territory of the EU Member States, Norway, Iceland, Liechtenstein and Switzerland.
The aim of the Regulation is to the ensure that one Member State is responsible for the examination of an asylum application, to deter multiple asylum claims and to determine as quickly as possible the responsible Member State to ensure effective access to an asylum procedure. The recast Dublin Regulation entered into force in July 2013 and is aimed at increasing the system’s efficiency and ensuring higher standards of protection for asylum seekers falling under the Dublin procedure. It contains improved procedural safeguards such as the right to information, personal interview, and access to remedies as well as a mechanism for early warning, preparedness and crisis management. It applies to applications for international protection lodged as from 1 January 2014.
Together with the recast Dublin Regulation, three other legal instruments constitute the “Dublin System”: Regulation (EU) No. 603/2013 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the recast Dublin Regulation and Regulation (EU) No. 118/2014 which amends Regulation (EC) No. 1560/2003 laying down detailed rules for the application of the recast Dublin Regulation.
How does it work in practice?
As the recast Dublin Regulation only became applicable from 1 January 2014 it remains to be seen how it will be applied in practice.
However recent publications such as the Dublin Transnational Network project ‘Dublin II Regulation: Lives on Hold’ report, show that the operation of the Dublin Regulation often acts to the detriment of refugees. Its application can cause serious delays in the examination of asylum claims, and can even result in asylum seekers’ claims never being heard. Areas of concern include the excessive use of detention to enforce transfers of asylum seekers, the separation of families, the denial of an effective opportunity to appeal against transfers and the limited use of the discretionary provisions within the Regulation to alleviate these and other problems. It also impedes integration of refugees by forcing them to have their claims determined in Member States with which they may have no particular connection. Similarly the operation of the Dublin system may also increases pressures on those Member States at the external borders of Europe, where States are often least able to offer asylum seekers support and protection.
What is happening now?
Recent developments have highlighted the flaws in the Dublin system including the numerous Court challenges both at the European and national level against transfers to Greece and the proposal to recast the Dublin Regulation.
Over the past few years there has been a significant amount of Court litigation whereby asylum seekers challenged transfers to other Member States under the Dublin system, both for protection concerns and due to inadequate reception conditions, at the national level and at the European level. This culminated on January 2011 when the Grand Chamber of the European Court of Human Rights ruled in M.S.S. v Belgium & Greece amongst other findings that Belgium had violated Article 3 and 13 of the European Convention of Human Rights by sending asylum seekers back to Greece under the Dublin Regulation.
The Court ruled that Belgium was in violation of Article 3 for exposing the applicant to risks arising from the deficiencies of the asylum procedure in Greece, as well as exposing the applicant to the detention and living conditions there. With regard to the national appeal procedure in Belgium, the Court held that Belgium was in violation of Article 13 in conjunction with Article 3 because of the lack of an effective remedy against the Dublin decision.
Similarly in December 2011 the Court of Justice of the European Union in the case of NS & ME that Member States have an obligation not to transfer asylum seekers to Member States where they would face inhuman or degrading treatment in violation of Article 4 of the Charter.
It is clear from these Court rulings that the Dublin System cannot work on the basis of a conclusive presumption that asylum seeker’s fundamental rights in each Member State will be observed. Member States will have to ensure that they apply the Dublin Regulation in a manner which respects the fundamental rights of refugees.