REFUGEE CRISIS IN EUROPE – IS THE DUBLIN SYSTEM NOT WORKING?

According to Asylum Information Database, AIDA,  as reported on 24 August 2015,  the German Federal Office for Migration and Refugees issued internal instructions  on 21 August 2015 suspending the Dublin Procedure in respect of Syrian nationals. Newly applying Syrian asylum seekers are to be immediately channelled into the regular asylum  procedure and will not be given the Dublin questionnnaires usually provided to applicants.

There are  concerning reports of increasing frequency  regarding the seeming sharp rise in  influx in relation to protection-seeking claimants arriving in Europe. Alarmingly,  there is expressed  reluctance to shoulder responsibility for taking on these claimants by some  signatories to the Dublin Regulation.

So how has the current  situation arisen one might ask? The short answer according  to BBC News is that,  “The situation in Calais is part of a wider migration crisis in Europe -caused largely by the displacement of people from war- torn countries such as Syria, Afghanistan, Eritria, and also North Africa…”-30 July 2015, ‘Why is there a crisis in Calais?’

Some in Europe have campaigned to raise awareness of the migrants desperate situation however some consider them to be simply economic migrants to be returned on sight to wherever they came from.  On 9 August 2015, The Telegraph reported that Philip Hammond, the Foreign Secretary said,  ”  ‘maurauding’ migrants around Calais pose risk to security of Channel Tunnel and that sending them to their home countries must be ‘number one’ priority…..Philip Hammond said under EU laws migrants can be “pretty confident” that they willl never be returned to their home countries, adding  that it will not be “sustainable” if Europe has to “absorb” millions of African migrants…..Speaking during a visit to Singapore, Mr  Hammond said the gap in living standards between Europe and Africa meant there would always  be an “economic motivation” for Africans to try to make it to the EU”.   Thus the most pressing concern appears to be whether the standard of living in the UK will be distablised by the entry of those described by Prime Minister, David Cameroon as a “swarm”  of people.

Some countries in Europe have gone as far as closing their borders as criticised by Amnesty International on 21 August 2015, ” Thousands of mainly Syrian, Afghan and Iraqi refugees and asylum seekers are trapped and face a serious risk of violence after Macedonian authorities sealed the country’s southern border on Thursday, creating a new crisis zone amid the global refugee crisis, Amesnty International said……..All countries have a duty to protect those fleeing conflict and persecution, and Macedonia is no exception. When the system cannot cope, you improve the system, you dont just stop people from coming in”.

That the Dublin  system may not be working as well as it should be is evident from France and German ‘s very recent call for unity in Europe  to deal with the refugee crisis, ” We must put in place a unified system for the right to asylum, French President François Hollande said in a brief statement ahead  of talks  with German Chancellor Angela Merkel, calling the influx from the world’s crisis zones ” an exceptional situation that will last some time “…….Rather than wait, we should organise and reinforce our policies and that is what France and German are proposing, Hollande said”.-www.eurativ.com, 25 August 2015, ‘Merkel, Holland urge unified  EU response to refugee crisis’.

THE APPLICABLE PROVISIONS

France, Germany, the UK  and some  other countries in Europe are member states of the European Union.  On 15 June 1990 the European Community member states agreed upon a Convention seeking to determine the member state responsible for examining applications for asylum lodged in one of the member states of the European Communities. The Dublin Convention came into force on 1 September 1997. The provisions of the Dublin Convention were effective from September 1997 until replaced in September 2003 by the Dublin II Regulation. The Convention laid down a set of criteria for determining  member states consideration of asylum applications. The member state most responsible for an applicant’s presence in the territory of the EU would be responsible for dealing with any asylum claim.  The Treaty of Amsterdam called for a replacement mechanism to determine responsibility for asylum applicants within the EU.   Council Regulation(EC)  No 343/2003 “Dublin II Regulation” was adopted on 18 February 2003 and came into force on 1 September 2003 for EU member states subject to some transitional provosions.  Like the Dublin Convention, the Dublin Regulation established a set of hierarchical criteria for determining the EU Member States responsible for examining an asylum application lodged in one of the Member states by  third country nationals.

The Dublin Regulation was recast and entered into force on 19 July 2013 as Regulation No. 604/2013 or Dublin III, bringing  in the Common European Asylum System and applies  to applications for international protection lodged as from 1 Janaury 2014.  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 ensure that one member state is responsible for the examination of an asylum application, to deter multiple claims and to determine as quickly as possible the responsible member state to ensure effective access to an asylum procedure. The recast Dublin Regulation is aimed at increasing the system’s efficiency and ensuring higher standards of protection for asylum seekers falling under the Dublin procedure.

Together with the recast  Dublin Regulation, three other legal instruments constituent 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 (EU)No. 1560/2003 laying down detailed rules for the application of the recast Dublin Regulation.

Asylum seekers may therefore be returned to the first member state by any other member state of the EU in which asylum seekers subsequently arrive.

SOME CASELAW

It may be thought inconceivable that some signatories to the Dublin Regulation may have processes and systems so difficient that an asylum claimant may seek to resist removal to that first country of entry on the basis that there would be a breach of their human rights in particular Article 3 of the ECHR-prohibition on torture and inhumane and degrading treatment. The European court of Human Rights has considered some such challenges:

M.S.S. v Belgium and Greece( No. 30696/09), 21 January 2011, Grand Chamber Judgement, held:

Regarding in particular the applicant’s transfer from Belgium to Greece, the Court held considering that reports produced by international organisations and bodies all gave similar accounts of the practical difficulties raised by the application of the Dublin system in Greece and the United Nations High Commissioner for Refugees had warned the Belgian Government about the situation there,  that the Belgian authorities must have been aware of the deficiencies in the asylum procedure in Greece when the expulsion order against the applicant had been issued.  Belgium had initially ordered the expulsion solely on the basis of a tacit agreement by the Greek authorities and had proceeded  with the measure without the Greek authorities having given any  individual guarantee whatsoever when they could easily have  refused the transfer. The Belgian authorities should not simply have assumed that the applicant would be treated in conformity with the Convention standards; they should have have verified how the Greek authorities applied their asylum legislation in practice: but they had not done so. There had therefore been a violation by Belgium of Article 3 of the Convention.  As far as Belgium was considered, the Court further found a violation of Article 13(right to an affective remedy) taken together with Article 3 of the convention because of the lack of an effective remedy against the applicant’s expulsion order.  In respect of Greece, the Court found a violation of Article 13 taken in conjunction with Article 3 of the convention because of the deficiencies in the Greek authorities examination of the applicants asylum application and the risk he faced of being removed directly or indirectly back to his country of origin without any serious examination of the merits of his application and without having had access to an  effective rememdy. As far as Greece was concerned the Court further held that there had been a violation of Article 3 of the Convention both because of the applicant’s detention conditions and because of his living conditions in Greece. Lastly under Article 46 ( binding force and execution of judgement) of the Convention, the Court held that it was incumbent on Greece without delay to proceed with an examination of the merits of the applicants asylum request that met the requirements of the European Convention on human Rights and pending the outcome of that examination to refrain from deporting the applicant.

Tarakhel Switzerland, 4 November 2014, Grand Chamber judgement:

The Court held that there had been a violation of Article 3 of the Convention if the Swiss authorties  were to send the applicants back to Italy under the Dublin Regulation without first having obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.  The Court found in particular that in view of the current situation regarding the reception system in Italy and in the absence  of the detailed and reliable information concerning the specific facility of designation, the Swiss authorities did not  possess sufficient assurances that if returned to Italy the applicants  would be taken charge of in a manner adapted to the age  of the children. The Court further considered that the applicants  had had available to them an effective remedy in respect of their complaint under Article 3 of the Convention. Accordingly it rejected both their complaint  under Article 13(right to an effective remedy) of the Convention taken in conjunction with Article 3 as manifestly  ill- founded.

CONSIDERATIONS AND CONCLUSIONS

Unless the members  to the Dublin Regulation are able to work within  a system that not only has proper regard to the plight of asylum claimants and also achieves a fair distribution of these claims, then regrettabley  currently the real beneficiries  are the  people smugglers/traffickers who are enabling massive movement from one place to another.  Protection-seeking claimants are suffering upon arrival in Europe despite the current applicability of the Regulation. They might  not still be facing blatant ammunition attack  as previously experienced  in their countries of origin however claimants for example  from Afghanistan, Syria, Somalia and Eritrea are arriving to destitution, detention, labelling as mere economic  migrants and frankly being met by  a  very cold and unwelcome European reception.

If in essence  the first member state where fingerprints are stored or an asylum claim is lodged is responsible for a person’s asylum claim, where  member states are able to prevent asylum claimants crossing into  their orders in the first place  as is currently happening, then surely the question that is left to be addressed and practical solutions found  is whether the member states concerned are by-psssing the effect of the Dublin Regulation by blocking entry  thus rendering the  usefulness and effectiveness of the Regulation redundant?