Although almost 30 years have passed since its inception, the Dublin Regulation continues to be a dysfunctional mechanism. Its implementation has seen significant violations of asylum seekers’ fundamental rights, episodes of rejection, and massive financial and administrative costs for EU Member States. Moreover, the Regulation does not comply with cornerstone of asylum law, namely the principle of non-refoulement. For this reason I firmly believe that it must be replaced with a new legal instrument as soon as possible.
Looking at the details, it is clear that excluding asylum seekers from the freedom of movement has always been the leitmotiv of the Regulation. This is laid bare by the development of the Regulation over the last three decades. In particular, the hierarchy of criteria enshrined in its various versions remained essentially unchanged. In a nutshell, from the 1990 Convention to the last 2016 Dublin IV proposal, responsibility has mainly sat with the country which had played the greatest part in the applicants’ entry or residence within the territory of the EU. The choice of asylum applicants has generally had zero consideration, or been brought in as an afterthought, only if all other criteria were inapplicable. Another proof that the mechanism is essentially one of monitoring, is evidenced by the drafting of the documentation of the Dublin system by European institutions primarily to prevent asylum seekers’ abuse of the right to asylum. This goal is explicitly stated in the 1986 Conclusions of the President of the European Council, in the 1990 Schengen Implementing Agreement, in the 1990 Dublin Convention, and in all subsequent Dublin Regulations. To this end, the Dublin IV proposal even introduces strict obligations for asylum seekers to lodge their applications in the first state of entry and to remain there while this is pending. Moreover, the proposal establishes that if asylum seekers do not comply with these duties, the assessment of their claims may be quickened – that means assessed more roughly – and they may lose the vast majority of their benefits. It is clear that this regional mechanism primarily aims to limit individual rights, rather than safeguard those in need. As a result it turns out to be an instrument of protection from, rather than for, asylum seekers.
Consequently, beyond being numerically ineffective, the massive stress put on the limitation of asylum seekers’ movement turned the Dublin system into an unfair mechanism for both refugees and Member States. It is unfair for Member States because in the vast majority of the Dublin cases the responsibility lies with the first EU country in which asylum seekers arrive. This puts a tremendous burden on those few countries that, for mere geopolitical reasons, are more likely to be the EU ports of entry. As a result, the Dublin Regulation dramatically intensifies the disparity between the Dublin units’ standards of safeguarding: while the protection provided by some states lives up to European standards, other countries are not able to satisfy asylum seekers’ basic needs. This led the Regulation to establish an unfair system for asylum seekers too. In such a mechanism, the possibility of obtaining refugee status depends mainly on the member state in which the asylum seeker lodges his or her application, rather than on their need for, and right to, international protection. Moreover, the Strasbourg and Luxembourg courts’ judgments lay bare the severe violations of fundamental rights that this instrument entails. As a result of the Dublin transfers, numerous individuals have not had access to an effective legal remedy to challenge their transfers; while others faced – or risked facing – inhumane and degrading treatment such as episodes of refoulement. Moreover, they may also infringe customary international law and numerous other agreements such as the Refugee Convention, the CAT, the ICCPR, et cetera. Based on these findings, it is undeniable that the Dublin Regulation does not comply with the principle of non-refoulement.
This lack of compliance is fairly peculiar if it is considered that, according to EU law, the Dublin rules are based on a total and absolute respect of the principle of non-refoulement. Yet, in practice, this compliance is inexorably undermined by the principle of mutual trust. Mutual trust plays a pivotal role in the field of asylum because it is the principle that legitimizes the Dublin transfers. In other words, it is the rationale that justifies the control and restriction of asylum seekers’ movements. Hence, it is not surprisingly that it has been conceived as the conditio sine qua non of the EU Member States cooperation. Interestingly, although the Dublin regulation does not oblige Member States to take the safety of other partners for granted, Member States massively rely on this principle. This means that they accept the Member States’ formal compliance to international agreements as sufficient proof about the future treatment of the individuals transferred. Yet, this work showed that this bogus presumption has led to to the infringement of asylum seekers’ rights in numerous occasions. Even the Strasbourg court starkly condemned the automatic application of the principle recognizing its refutability. Yet, as demonstrated by the resumption of the Dublin transfers to Greece, Member States continue to underpin and preserve this presumption, whatever it takes.
Summing up, the will to limit asylum seekers’ freedom of movement led to the establishment of a regional system of deflection legitimized by the principle of mutual trust. Given the lack of harmonization between Member States’ practices, the system continues to entail severe violations of the principle of non-refoulement. To focus on this principle is crucial because it is the closest mechanism to a right to asylum currently available under international law. Hence, relying on a formal understanding of mutual trust, Member States are undermining the cornerstone of asylum seekers’ protection. In light of these considerations, I think that the principle of non- refoulement can be compared to what Hannah Arendt defined as the right to have rights. In fact, the infringement of the principle deprives asylum seekers of a broader set of rights of which they can benefit only if they are not sent back to their country of origin. As Arendt stated, it prevents them from living in a place where they opinion are significant and their actions are effective. In other words, violating this principle, the Dublin Regulation is denying asylum seekers their right to be members of political communities and, consequently, their entitlement to a wider set of fundamental rights. This is the reason why lack of compliance with this principle is undoubtedly the most serious flaw of the Regulation.
In conclusion, it is evident that European institutions have failed to radically reform the structure of the Dublin system and to tackle its core problem; Member States’ automatic reliance on the erroneous premise of mutual trust. In order to impede further violations of the principle of non-refoulement, I do believe that mutual trust needs to be radically reconsidered. Firstly, a system based on an axiomatic understanding of the principle can no longer be upheld. Thus, a transition from a formal reading of trust to a substantive one needs to be implemented as soon as possible. This should require Member States, in transferring asylum seekers, to analyze the peculiar characteristics of the applicant’s case and the specific guarantees provided by the receiving state. In other words, as held by the ECtHR, sureties must be put in place that the applicants shall receive a fair treatment. This would enable human rights to be safeguarded in a broader manner and those countries that are already shouldering a massive burden would not have to bear the responsibility of further applications. Secondly, and most importantly, I believe that there is a need for further radical transition. The European asylum system needs to undergo its own Copernican revolution. This means that the cornerstone of the Dublin system must shift from the principle of mutual trust to a mechanism to safeguard asylum seekers’ rights. The current pretense deploys a mechanism that does not have these rights at it center. This is tantamount to analyzing the solar system with a ptolemaic model. It just cannot work. Asylum seekers’ rights must become the pivot of a new European system of asylum; a system that, finally, aims at protecting individuals rather than at deflecting them.