Europe’s Policy Crisis: Analysis of the Dublin System

Author:Viola von Braun
Europe’s Policy Crisis: An Analysis of the Dublin System
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Europe’s Policy Crisis: An Analysis of the Dublin System
Viola von Braun
The European Union is facing a ‘policy crisis’ in the field of asylum and immigration: The Dublin III
Regulation is in need of a reform. The Regulation fails to ensure the rights of protection-seekers and
distributes the responsibility for applications unfairly among Member States. Unable to find a joint solution,
European Union institutions and States attempt to shift responsibility outside of their territory by
cooperating with third countries such as Turkey at the expense of protection-seekers’ rights. To tackle the
‘policy crisis’ a ‘true European response’ is needed. States must agree on a radical reform of the Dublin
system in order to have the fundamental principles of solidarity and fair share of responsibility ensured. If
not, the future of protection-seekers and economically weaker Member States will be at stake, and with that
the very existence of the European Union itself.
Acknowledgements
Foremost, I would like to express my sincere gratitude to my supervisor Dr. Lutz Oette. I would
also like to thank my parents, who supported me throughout the entire process.
Europe’s Policy Crisis: An Analysis of the Dublin System
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Abbreviations
AI Amnesty International
APD Asylum Procedure Directive
CEAS Common European Asylum System
DII Dublin II Regulation
DIII Dublin III Regulation
DIV Dublin IV Proposal
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EP European Parliament
EU-Charter Charter of Fundamental Rights of the European Union
HRW Human Rights Watch
L6458 Law on Foreigners and International Protection (Turkey)
L4375 Asylum Law No.4375 (Greece)
Statement EU-Turkey Statement
State State subject to the Dublin system
TFEU Treaty on the Functioning of the European Union
TPR Temporary Protection Regulation (Turkey)
UDHR Universal Declaration of Human Rights
UNHCR United Nations High Commissioner for Refugees
1951 Convention 1951 Convention and its 1967 Protocol Relating to the Status of Refugees
Europe’s Policy Crisis: An Analysis of the Dublin System
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Introduction
‘In Europe, the refugee crisis is first and foremost a policy crisis’.
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This paper aims to confirm this
sentence. More specifically, the paper focuses on the c urrent Dublin system and its failure to
safeguard the rights of protection-seekers
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and to ensure the principle of solidarity amon g States
subject to the Dublin system (States). The first chapter of this p aper introduces the reader to the
Dublin system. More specifically, it evaluates the Dublin III Regulation
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(DIII) with a particular
focus on protection-seekers’ rights. Subsequently, the section portrays the structural weakness of
the Dublin system in failing to address fundamental principles. The second chapter illustrates the
immediate outcome of the failure of the Dublin system. At the expense of protection-seekers’
rights, the European Union (EU) aims to outsource responsibility to third countries. As an example
the EU-Turkey Statement will be evaluated. The third chapter portrays three potential future
pathways of the Dublin system: the non-European response, the status quo response, and the true
European response. As an example for the status quo response, the recent proposal by the
Commission to amend the Dublin system will be evaluated. Finally, the true European response
will be introduced together with radical ideas for the much-needed joint approach of States.
Europe’s Responsibility for Protection-Seekers
States are ob ligated by an extensive legal framework to protect and respect the rights of asylum
seekers. Firstly, Art.14 of the Universal Declaration of Human Rights (UDHR) provides everyone
with the right to seek and enjoy asylum. Secondly, all States are signatories to the 1951 United
Nations (UN) Convention and its 1967 Protocol Relating to the Status of Refugees (1951
Convention).
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The common policy on asylum, subsidiary protection, and temporary protection
enshrined in Art.78.1 Treaty on the Functioning of the European Union (TFEU), and the right to
asylum stipulated in Art.18 of the Charter of Fundamental Rights of the European Union (EU-
Charter), m ust be guaranteed in acc ordance with th e 1951 Conventi on. In the ‘spirit of
international cooperation’, as stipulated in its Preamble, the 1951 Convention sets out the
requirements to grant refugee status (Art.1), prohibits the imposition of penalties on irregular
entry of migrants (Art.31), and obligates signatories to protect refugees from non-refoulement
(Art.33). Thirdly, States are subject to a regional set of rights. The EU-Charter contains rights
applicable to protection-seekers, namely human dignity (Art.1), protection from inhumane and
degrading treatment (Art.4), protection from removal, expulsion, and extradition (Art.19.2), and
the right to an effective remedy and a fair trial (Art.47). In addition, Art.6.2 TFEU obliges all States
to respect fundamental rights of the European Convention on Human Rights (ECHR). The ECHR
contains important rights for protection-seekers, namely, prohibition of torture (Art.3), right to
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Maarten Den Heijer and others‚ ‘Coercion, Prohibition and Great Expectations: The Continuing
Failure of the Common European Asylum System’ [2016] CMLR 607.
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The scope of the Dublin system includes all applicants for international protection (Rec.10). The term
protection-seekers will therefore be used throughout the dissertation to describe every migrant in the
EU, whose request for sanctuary has yet to be processed.
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Regulation (EU) No. 604/2013 on establishing the criteria and mechanisms for determining the
Member State responsible for examining an application for international protection lodged in one of
the Member States by a third-country national or a stateless person [2013] L180/31.
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State Parties can be located here http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-
1951-convention-its-1967-protocol.html .

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