The European Asylum Policy – Failure of the Dublin III Regulation?

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 by Jan Alexander Linxweiler

It is already hard to imagine what it must feel like to be displaced, to be forced to leave home, to be persecuted and not welcomed anywhere. Even harder to imagine is the horror and despair of those who die while trying to come to a presumed secure and just system – to the EU. On the 30th of September 2013 more then 300 refugees experienced this ordeal off the Italian island of Lampedusa and died in the cause. Since then reports of tragic deaths at the European boarders are becoming more and more frequent, as the number of refugees are increasing. Subsequently the influx of refugees into the EU is increasing as well. At the same time the Common European Asylum System seams to fail in providing adequate protection and reception conditions; resulting in inhuman treatment and deaths.

This paper wants to offer a reasonable and possible solution within the existing Asylum System. Therefore it presents the Refuge Protection within the two dimensions: the Geneva Convention relating to the Status of Refugees and the Common European Asylum System. Within the Common European Asylum System the paper focuses upon the definition of the refugee status and the Dublin System. After presenting and discussing the weaknesses of this exact System the paper will present (in short) a possible solution to the raised problems and weaknesses.

The Dimensions of Refugee Protection

 To shine a light on the Common European Asylum System (CEAS), we first have to talk about the most international dimension of refugee protection. Thus we have to look at the 1951 Geneva Convention relating to the Status of Refugees (GRC) and the 1967 Protocol relating the Status of Refugees. These two documents created an abstract legal framework for the treatment of refugees and are therefore often called “Magna Charta of Refugees”.[1]

The Nature of the Geneva Refugee Convention

The GRC establishes the legal status of refugees by offering three definitions. It is important to emphasize that the GRC is just defining the refugee status. It does not constitute a legal entitlement to asylum or to be grated asylum.[2] The granting of asylum is up to the discretionary adjudication of a state – within the boundaries of its legal system.[3] Thus the GRC does neither create a suable right to a residence permit nor an individual right to protection[4] or even rules of procedure or mechanisms of enforcement. In this context the recommendations and statements of the United Nations High Commissioner for Refugees (UNHCR) may carry some weight, but as they are considered soft law, are not binding even to Member States of the United Nations.[5] As a consequence signatory states of the GRC are only bound by the principle of good faith.[6] This principle amounts to the encouragement to further the goals of the signed treaty and to do nothing to endanger these goals. As result signatory states have to adhere to the minimal standards provided by the GRC.[7]

Hence, if an Asylum seeker meets the requirements, demanded in one of the given definitions, a signatory state to the GRC is obliged to offer this person asylum. Of course the signatory state has to conduct an examination to confirm the refugee status.[8] This examination has to be a formalised and fair procedure.[9] In regards to the minimal standards of the GRC, the procedure has to comply with the fundamental Human Rights as well as the principle of non-refoulement[10] introduced by Art. 33 GRC. This principle prohibits the rendering of an asylum seeker to his country of origin, as long as the refugee status is not denied in fair and just proceedings.[11]

The Three Definitions of Refugees

After clarifying the nature of the GRC, we now should have a look at the three definitions of Refugee status. First of all, it is to mention, that there are three definitions for are reason: The intent of the signatory states in offering these three definitions was to ensure a wider definitional coverage[12]; thus encompassing all – up to then – known categories of refugees. [13]

As a result two definitions nowadays are not commonly used any more. They protect persons who, due to the events that ensued before January 1st 1951, had to flee their country of origin or could not return to their country of origin.[14] These definitions include prominently the statutory refugee. A statutory refugee within the meaning of Art. 1 A (1) GRC is a person, who is protected under and provided with the refugee status by an agreement or convention that predates January 1st 1951. In this context, Art. 1 A (1) GRC enumerates the arrangements of the 12th of May 1926 regarding Russian and Armenian refugees, the agreement of the 30th of June 1928 regarding Turkish and Assyrian refugees, the Conventions of the 28th October 1933 and 10th February 1938 as well as the Protocol of 14th September 1939 and the Constitution of the International Refugee Organization. Additionally, Art. 1 D GRC provides persons, who formerly were protected under and provided with refugee status by organisations or institutions of the United Nations – with the exception of the UNHCR – , with refugee status.[15]

The fact that the convention refugee status within in the meaning of Art. 1 A (2) GRC cannot be applied does not revoke the granted status as statutory refugee. Therefore these two definitions function ipso facto as a catch-all element.[16]

This leads to the more commonly used definition of convention refugee status. A convention refugee within in the meaning of Art. 1 A (2) GRC is a person who due to the well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[17]

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The inherent problems of the Geneva Refugee Convention

While the Signatory States initially tried to encompass as many refugee stati as possible, the reality today is that merely 10 – 20% of refugees are covered by the given criteria.[18] Ongoing wars, civil wars, climate change as well as economic crisis are not addressed within the GRC.[19] Additionally various refugee stati are not yet acknowledged in the international community. It is for example still controversial, if persecution by non-state actors is to be considered as persecution within the scope of the GRC.[20] Similarly controversial is the treatment of sur place refugees. These are refugees, who meet the requirements of the GRC definitions after they already left their country of nationality.

In conclusion, the refugees, who are not protected by the refugee status of the GRC – encompassing Climate Refugees, Economic Refugees, Prima Facie Refugees – and still cannot return to their countries of nationality, are called De-Facto-Refugees.[21] Those refugees are often provided with temporary residence permits or in case of war or civil within their countries of nationality with temporary protection.[22]

The Common European Asylum System

Now that we are aware of the refugee status provided by the GRC, we can take a closer look at the Common European Asylum System (CEAS). Historically the Asylum and Refugee Policy was introduced into the intergovernemental Cooperation of the Member States of the European Union (EU) through the Treaty of Maastricht on the European Union[23] (TEU).[24] Finally the Treaty of Amsterdam[25] shifted the legislative power in regards to Immigration and Asylum Policy to the EU,[26] giving the EU the competence to start harmonising these policies throughout the regions. The approach ended in June 2013 with the second phase of the harmonisation programm and the Common European Asylum System.[27]

This system is comprised of three directives as well as two regulations.

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Within this System the Asylum Procedure Directive[28] defines procedural standards and harmonises the national procedures. Still the directive is rather controversial. Critics point out that the definition of safe third country in Art. 36 – 39 infringes directly upon the right to a fair procedure. A definition of safe third country within the meaning ofthe directive is up to the discretion of the Member State – within legal boundaries. Thus the German Federal Constitutional Court was able to classify every Member State of the European Union as safe third country by act of constitutional law.[29] These classifications within the scope of the directive result (factual) in refoulment without the need of individual examinations.

The Qualification Directive serves the purpose of constituting common standards for the recognition of refugee status as well as defining the refugee status. Recognition and status have to be differentiated. The recognition of a refugee is of a mere declaratory nature, while the definition is a substantive legal matter.[30] To put it simple: A refugee is not a refugee because he is recognized as one; instead a refugee is recognized as a refugee because he is one.[31]

In this context the Qualification Directive uses the refugee status of the GRC in accordance with Art. 78 Treaty on the Function of the EU (FTEU) und Art. 6 Abs. 2 TEU,[32] but specifies individual requirements within chapter III Qualification Directive.[33] It is widely considered on as of the vital parts of the CEAS due to the effort it makes to combine refugee policy and Human Rights.[34] Factually it amounts to common minimal standards.[35]

In this context and within the meaning of the Qualification Directive a refugee is “a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply”.[36]

ab

The subsidiary protection is only a catch-all element and thus, as the name indicates, is subsidiary to the refugee protection. It protects a person eligible for subsidiary protection, meaning “a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”.[37]

It is widely criticised that the Qualification Directive does not support the principle of non-refoulement, guarantied in Art. 33 GRC and especially Art. 3 European Human Rights Convention (EHRC).[38] Within the CEAS it is up to the discretion and legal foundation of a Member State of the EU when and how to enforce refoulment.[39]

The last directive is the Reception Condition Directive.[40] Within its scope the regulations regarding the social reception conditions as well as living standards for Asylum Seekers within EU Member States are harmonised. Thus the directive addresses issues like residence and freedom of movement (Art. 7), employment (Art. 15) and material reception conditions (Art. 17).

While it offers protection and secures social inclusion, the Reception Condition Directive is heavily criticised. The reasons are the detention rules (Artt. 8-11), that offer six legitimations for detaining an asylum Seeker. It is perceived as problematic that a detention is already legitimated for the sake of mere identification.

The Eurodac Regulation[41] is the European Dactyloscopy, the European fingerprint database for identifying asylum seekers and irregular border-crossers. It is used to identify Asylum Seekers, who already field a first application for asylum in a Member State. Furthermore, national security agencies are aloud to access Eurodac for means of persecution of terrorism and capital crimes. A systematic search however is prohibited.

Finally, the Dublin III Regulation[42] determines jurisdiction for examination and processing of Asylum Seekers.

The Dublin III System

To fully understand the impact of the Dublin III Regulation on the CEAS, we have to take a look at its genesis. The Dublin Agreement was the predecessor to the Regulation and was combined with the Schengen Agreement and Convention.[43] Those agreements were the first attempt at harmonising and reducing boarder control mechanisms as well as visa and immigration policy.[44] The Dublin Agreement introduced rules regarding jurisdiction for examination and processing of Asylum Seekers.[45]

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Illustration 5: Jurisdiction within the Dublin System (created followig Bethke/Bender, Beratung von Flüchtlingen im Dublin-Verfahren, 2011 page. 10).

The subsequent Dublin II Regulation then offered a mechanism to prevent conflicts of jurisdiction. It applies the principle of family unity. (Artt. 6-8) and the principle of responsibility.[46] While the first is self explanatory, the principle of responsibility ensures that the State of initial entry is responsible for the Asylum Seeker (Artt. 9-10). This principle applies if the entry was legal; but especially if it was illegal.[47] The only exception to this principle depends of state initiative. Thus a Member State has to request permission for examination of refugee status based on family or cultural reasoning. (Art. 15).[48]

The rulings of the European Court of Justice and the European Court of Human Rights

Ever since the Dublin II Regulation the Dublin System faced opposition and criticism. Most prominent among the critics are the European Court of Justice and the European Court of Human Rights. The courts addressed Human Rights violations caused due to the refoulment of Asylum Seekers to the Member State of initial entry: [49] The European Court of Justice in the joined Cases C-411/10 and C-493/10 [50] and the European Court of Human Rights in the case M.S.S. v. Belgium & Greece[51]

The court rulings emphasise that Member States may not transfer an Asylum Seeker to the Member State responsible within the meaning of the Dublin II Regulation “if systemic deficiencies in the asylum procedure and in the reception conditions […] in that Member State amount to substantial grounds for believing that that asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision”.[52] Thus an “irrebuttable presumption” of a safe third country is precluded by European Union Law. [53] Still a Member State can assume that another EU Member State is to be considered a safe third country, but this presumption has to be rebutable.[54]Therefore the state, the Asylum Seeker is present in, may itself be responsible for the determination of jurisdiction.[55]At the same time this Member State has to ensure “that it does not worsen a situation in which that applicant’s fundamental rights have been infringed by use of a procedure for determining the Member State responsible which takes an unreasonable length of time”. [56]

The inherent problems of the Dublin System

The European Court of Justice and the European Court of Human Rights point out the inherent weaknesses of the Dublin System. By tying the responsibility of examining the refugee status to the initial entry, EU Boarder States – most prominent among them Greece, Italy and Bulgaria – are overburdened.[57] In 2010 alone, nearly 90% of illegal immigrants entered the EU via Greece.[58] This ipso facto leads to systemic deficiencies in the asylum procedure and in the reception conditions.

The European Union attempted to address these issues by introducing the Dublin III Regulation into the CEAS.[59] Thus Art. 3 (2) prohibits the transfer of Asylum Seekers in Member States if the State the Asylum Seeker is present in, cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions are evident. Additionally, the revised regulation includes the right to information (Art. 4), the right to be heard (Art. 5), protection for minors (Art. 6) as well as regulations regarding written notice of responsibility (Art. 26). Furthermore Art. 27 constitutes temporary legal protection.

We have to welcome these changes as they provide Asylum Seekers with more comprehensive protection. But the Dublin III Regulation does not address the core problem. It does not address the problem of jurisdiction and responsibility. Thus the overburdened boarder states will not be relived of their burden and the conditions within refugee camps and facilities will not improve. The introduced early warning system, that is supposed to recognize appearing systemic deficits, cannot – as a matter of fact – offer sufficient protection. The situation in Greece, Italy and other Member States is marked with human tragedies. These tragedies are symptoms of the systemic deficits the highest courts of the EU already addressed. These deficits are already impacting the CEAS. Thus it has to be questioned if the early warning mechanism can offer more then just lip service.

Possible Solution: Right to Choose

 This situation imposes the question: How can the Dublin System be reformed? Various approaches are discussed within the international community. One of these approaches focuses the already mentioned aspect of jurisdiction and responsibility. It is promoted most prominently by refugee support organisations and wants to replace the determination by initial entry with the determination through the right to choose. This right to choose would allow the Asylum Seeker to freely choose the Member State for his first application – as long as other criteria do not impose forced responsibility of a Member State within the scope of Art. 13 Dublin III Regulation.[60]

This approach is founded on the fact that the GRC does neither impose an obligation to apply in a certain Member State nor excludes a right to choose. (Art. 31 (2) GRC).[61] Additionally the right to choose could prevent asylum shopping;[62] a procedure, in which a Asylum Seeker, who was denied refugee status in a EU Member States, reapplies in another Member State.[63]

Furthermore, this approach could be implemented in the existing System without fundamentally altering it.[64] An Asylum Seeker crossing the EU boarders still would be identified and controlled within the scope of Art. 77 (1) (b.)/(c.) FTEU. He or she would have to apply for Asylum to prevent refoulment. Still the principle of non refoulment could prevent a transfer anyway and therefore the Asylum Seeker cannot be forced to apply in the Member State he or she would presently reside in.

Here would the right to choose intervene. The Asylum Seeker would choose a Member State he or she wants to file the first application in. The Member State of initial entry acknowledges this. Furthermore the Asylum Seeker would be provided with documents recording his/her entry. Within a reasonable time span the application would have to be filed to avoid sanctioning.

Various organisations point out that such an approach uses the pre-existing cultural and family ties within Member States.[65] This would further the social and cultural inclusion of refugees into the European Society.

In conclusion, the implementation of a right to choose –however controversial it may be – would adhere to the ideals of the European Union as well as the United Nations. The idea to have the freedom to choose ones residence, to live in a secure and just environment is nothing new. As a matter of fact the Council Regulation No. 343/2003 already expressed that it is the “European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community“.

[1]   Lafrai,, Die EU- Qualifikationsrichtlinie und ihre Auswirkungen auf das deutsche Flüchtlingsrecht, 2013, p. 5.

[2]   Hailbronner, ZAR 1993, p. 3; Davy, Asyl und internationales Flüchtlingsrecht, Band I: Völkerrechtlicher Rahmen, 1996, p. 51 f.

[3]   Hobe, Einführung in das Völkerrecht, p. 459.

[4]   Lafrai, (Fn1), p. 6.

[5]   Hobe (Fn3), p. 205 ff.

[6]   Hobe (Fn3), p. 205 ff.

[7]   Lafrai, (Fn1), p. 13 ff.

[8]   Lafrai, (Fn1), p. 5 ff.

[9]   BVerfGE 94, 49 ff.

[10]Hailbronner, ZAR 1993, p. 3.

[11]Deutscher Anwaltverein, Memorandum Flüchtlingsaufnahme in der Europäischen Union: Für ein gerechtes und solidarisches System der Verantwortlichkeit, p. 9.

[12]Lafrai, (Fn1), p. 22.

[13]Lafrai, (Fn1), p. 22.

[14]Hailbronner, (Fn2) p. 3.

[15]Kemper, ZAR 1992, p. 112.

[16]Lafrai, (Fn1), p.. 18.

[17]Goodwin-Gill/ McAdam, The Refugee in International Law, p. 37.

[18]Hobe (Fn3), p. 458; Lafrai, (Fn1), p. 20.

[19]Ibid.

[20]Contrary: BVerfG E 54, 341 ff; BVerwGE 104, 269ff.

[21]Hailbronner, ZAR 1993, p 5.

[22]Hobe (Fn3), p. 458.

[23]Vertrag über die Europäische Union vom 07.02.1992, BGBl. 1992 II, p. 1253 (EUV).

[24]Lafrai, (Fn1), p. 65 ff.

[25]Vertrag von Amsterdam zur Änderung des Vertrags über die Europäische Union, der Verträge zur Gründung der Europäischen Gemeinschaft sowie einiger damit zusammenhängender Rechtsakte, BGBl. 1998 II p. 386 ff.

[26]Lafrai, (Fn1), p. 83.

[27]No. 11 preamble directive 2011/95/EU.

[28]directive 2013/32/EU.

[29]BVerfGE 94, 49.

[30]Lafrai, (Fn1), p. 142.

[31]UNHCR, Handbuch über Verfahren und Kriterien zur Feststellung der Flüchtlingseigenschaft, 2003, Nr. 28.

[32]Lafrai, (Fn1), p. 210.

[33]No. 14 preamble directive 2011/95/EU.

[34]Goodwin-Gill/ McAdam (Fn17), p. 41.

[35]Lafrai, (Fn1), p. 209 ff.

[36]Art. 2 lit. c) Qualification Directive.

[37]Art. 2 lit. e) Qualification Directive.

[38]Lafrai, (Fn1), p. 142.

[39]Lafrai, (Fn1), p. 143.

[40]directive 2013/33/EU.

[41]Regulation EU Nr. 603/2013.

[42]Regulation EU Nr. 604/2013.

[43]Deutscher Anwaltverein, (Fn11), p. 10.

[44]Lafrai, (Fn1), p. 69f.

[45]Ibid.

[46]Dolk, Das Dublin Verfahren, 2011, p.4.

[47]Lafrai, (Fn1), p. 70.

[48]Ibid.

[49]ECJ, 12.21.2011 – C-411/10, C-493/10.

[50]ECJ, 12.21.2011 – C-411/10, C-493/10.

[51]ECHR, 01.21.2011 – 30696/09.

[52]ECJ, 12.21.2011 – C-411/10, C-493/10.

[53]ECJ, 12.21.2011 – C-411/10, C-493/10; contrary: BVerfGE 94, 49 ff.

[54]ECJ, 12.21.2011 – C-411/10, C-493/10.

[55]Ibid.

[56]ECJ, 12.21.2011 – C-411/10, C-493/10; contrary: BVerfGE 94, 49 ff.

[57]Dolk (Fn46), p.5; Wilkens, Der einzige Weg, Amnesty Journal, 08-09/2013, p. 23.

[58]ECJ, 12.21.2011 – C-411/10, C-493/10.

[59]Dolk, (Fn46), p. 11 f.

[60]Lafrai, (Fn1), p. 77.

[61]Leyburne, Should refugees have the „right“ to choose their country of asylum?, p. 7 ff.

[62]Leyburne (Fn61), p. 2.

[63]Leyburne (Fn61), p. 13f.

[64]Dolk, (Fn46), p.11f.

[65]Ibid.

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