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The Dublin System: Preventing ‘Asylum Shopping’

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About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Image © MPD01605 on Flickr

This article is part of the 'The EU 'Migrant' Crisis' series.

Over recent months, the British public have barely been able to go a day without hearing of the EU 'Migrant' Crisis, with horror story after horror story being portrayed. It is clear that Syrian asylum seekers are being subjected to appalling conditions and/or treatment within the EU. What misconceptions are there about the situation? Further, the question must be asked, how much of this is due to a poor EU framework?

Other articles from this series are listed at the end of this article.

By now, I would like to assume you are all fully-versed in the refugee crisis. My previous Keep Calm Talk Law article, entitled ‘Dissecting the Calais Crisis’, discussed how the UK has responded to the huge influx in refugees across Europe, and how our practices compare to those of other EU Member States, and Helen Morses article A Brief Introduction to EU Asylum Law provided an overview of the European framework. Since my previous article, the UK appears to be making more of an effort to offer refuge to those displaced by civil war or ruthless regimes. David Cameron has pledged to accept 20,000 Syrian refugees within the next five years, although Labour has declared this number inadequate, especially compared to other countries’ efforts. Nevertheless, its a start. Numerous towns and cities, including my home town of Darlington, have also pledged to welcome refugees with open arms in a bid to aid the crisis.

As promising as all of this is, one only needs to read the comments on articles such as these to realise there is still a deficit of compassion. Apparently the empathy, sympathy and understanding triggered by the picture of a drowned Syrian child had an expiration date, which has now sadly passed. Amongst the England for the Englishcomments, and not forgetting the ISIS in disguisetheories, there are a few responses addressing a perfectly valid point. Since many refugees travelling on to Northern EU States, such as the UK, Germany, and Sweden, have previously resided in Greece or Turkey, how are they still classed as refugees?

The controversial Dublin System states that an asylum seeker must claim refugee status in the first EU Member State he or she comes into contact with or face deportation. Split into three legal instruments, introduced in 1997, 2003, and 2013, the System aims to improve the efficiency of asylum law in the EU, as well as prevent asylum shopping. Since the EU is assumed to operate on a Common European Asylum System, refugees should theoretically enjoy similar levels of protection across all Member States. Consequently, there is no need for refugees to claim asylum in other Member States once their status has been recognised, which, it is argued, would only lead to unnecessary administration and procedure.

There are of course exceptions to the first Country rule. Firstly, the principle of family unity ensures that an asylum seeker will have his or her application received in the Member State where his or her family resides. This is most rigorously enforced in instances of unaccompanied minors. Secondly, [w]here the asylum seeker is in possession of a valid residence document or visa, the Member State that issued it will be responsible for examining the asylum application.Both of these criteria require the asylum seeker to demonstrate and prove their family connections with documentation (unless they are an unaccompanied minor). This could be a prohibitive factor: in instances where the asylum seeker has fled a war zone, and travelled hundreds of miles to sanctuary, it is more than possible that they have lost touch with these family members, or did not manage to locate the relevant documentation. In many cases, their claims might not even be heard.

Asylum seekers who lack family connections or visas risk deportation back to the original Member State which they entered into and registered with. The Eurodac system allows for the identification of asylum applicants through fingerprint recognition.[A]n asylum applicant or a foreign national found illegally present within an EU country will have his or her fingerprints added to the Eurodac database, as well as personal data, in order to determine whether an asylum applicant or a foreign national has previously claimed asylum in another EU country. If so, they will be deported back to the original EU country, unless they meet one of the above criteria.

Such a system may reduce lengthy administration, however the consequences are far greater. It is extremely unlikely that the first country an asylum seeker lands in will be one of the northern EU states, such as the UK. The dangerous routes which asylum seekers are forced to endure mainly involve the Mediterranean or the Balkans. Subsequently, there is an exceedingly large burden on Southern EU States to offer refuge. An estimated 350,000 refugees, asylum seekers, and migrants have reached EU borders so far this year. 230,000 of these individuals were detected in Greece, and approximately 115,000 in Italy. If the Dublin Regulations were strictly enforced, this would be far too great a responsibility for these countries to bear.

As a result of this huge influx, the conditions in the Southern States are becoming increasingly poor. This video by the BBC demonstrates the circumstances a refugee must endure in countries such as Turkey, Greece and Italy, due to the huge numbers of refugees, and a lack of financial support for the Member State. During her journey to Sweden, she is forced to take dangerous routes in order to avoid detection by Eurodac. Importantly, the Dublin System comes secondary to a Member States other obligations outside of the Union, such as the European Convention on Human Rights (ECHR).

Article 3(2) of the Dublin Regulation, known as the Sovereignty Clause, states that a Member state becomes responsible for the asylum seeker if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicantswithin the previous Member State, resulting in inhuman or degrading treatment. This of course interrelates with Member States human rights obligations under both the ECHR and its EU equivalent, The Charter of Fundamental Rights.

In the ECtHR case of M.S.S. v Belgium and Greece, an Afghan asylum seeker who had fled to Greece later moved to Belgium, due to extremely poor conditions. Mr M.S.S. (the applicant) experienced both poor detention conditions, as well as exceptionally poor living conditions whilst not in detention, such as a lack of food, water, and place to live. Upon discovering the applicants fingerprints on the Eurodac database, Belgium proceeded to deport the asylum seeker back to Greece. The ECtHR held that Greece violated the individuals Article 3 rights, as did Belgium for knowingly sending the applicant back. Thus, by failing to exercise the Sovereignty Clause, Belgium had infringed upon the individuals human rights under the ECHR, and thus implicitly the EU Dublin Regulation Sovereignty Clause.

The role which human rights play in the allocation of asylum responsibility has also been addressed by EU courts, with issues further emphasised in N.S. v Home Secretary of State for the Home Department. At para [104], the CJEU states that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.In other words, living conditions and asylum systems inevitably vary from Member State to Member State. These conditions must be acknowledged and considered before a country transfers an asylum seeker in line with the Dublin Regulation. It is uncertain whether the current conditions of the Southern States would qualify as inhuman or degrading treatment; although recent reports would suggest that this is indeed the case.

Countries such as Germany have stated that they will not be enforcing the Dublin Regulations within the current climate, and will not deport any Syrian refugees if they have applied elsewhere. The rationale behind this stance lies with the belief that there should be an even share of refugees across the EU, without shifting the burden entirely onto the southern states. The successful operation of the Dublin System relies on the Common European Asylum System; an assumption that all Member States operate the same asylum practices, and so it is irrelevant which State the refugee lands in. In reality, conditions vary greatly from country to country, especially if a country is over-burdened. Preventing ‘asylum shopping’ makes little logical sense, as the countries with the good conditions and benefits are likely to be those with the greatest capacity to host refugees. Preferable and logical solutions would involve the resettlement of refugees from over-burdened states, which the UK has in the past rejected, and better financial support for the Southern States.

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Tagged: European Union, Human Rights, Immigration

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