Explainer: how European states shift responsibility for asylum claims

The spring and summer of 2015 will be remembered for a series of issues concerning irregular migration in the European Union, stretching from the Mediterranean to Calais and Hungary. Within this wider drama of inequality and globalisation, an important sub-plot has concerned migrants’ ease of movement between states in the Schengen area, the zone of free movement within Europe. This frequently leads to migrants who arrive on the shores of one country, such as Greece, Hungary or Italy, making their way to another in order to lodge an application for asylum.

To counteract these “secondary movements”, ever since the Schengen area was established in 1995, provision has been made for the transfer of responsibility for applicants for international protection. This means that a country – often in north-western Europe – where an application is made has the right to return an asylum applicant to the EU or Schengen country they first entered.

The Dublin rules

The rules on transfer of responsibility were first set out in the Dublin Convention of 1990, then in the Dublin II Regulation of 2003 and most recently in the Dublin III Regulation of 2013. The Dublin framework now covers all 28 EU member states and the four associated Schengen states (Iceland, Liechtenstein, Norway, and Switzerland).

After making special provision for unaccompanied minors and families, states are allocated responsibility for applicants according to a list of criteria, in the following order:

• A state that issued a residence document or visa to the individual
• The state that the individual entered irregularly, in the previous 12 months
• A state in which the individual lived on an irregular basis for five months (or, the last of these, if the period of stay was across several states)
• A state that permitted the individual to enter lawfully without a visa
• A state in which an application was made in an airport international transit zone
• The state in which the individual first applied for protection.

Regardless of these criteria, a state in which an international protection application is lodged may still choose to consider it.

Migrants in the ‘new jungle’ camp at Calais.REUTERS/Juan Medina

The allocation of responsibility to a state has profound implications for the individual. That state’s administrative and judicial authorities consider the application, with limited EU or international scrutiny. If successful, the individual acquires a right of residence only in the state in question. A right to reside elsewhere in the EU will usually arise only after five years, under an EU directive on the rights of long-term residents.

Even that measure does not apply to Denmark, Ireland, the UK and the four Schengen states outside the EU. For applicants who obtain protection in those countries – or who obtain it elsewhere in the EU/ Schengen area, but wish to move to those countries – naturalisation alone guarantees a right to relocate.

As a result, there are clear reasons for migrants who have yet to make an asylum application to move on to another country that they presume offers them better economic or social opportunities. It is that choice that the regime of Dublin transfers is designed above all to frustrate.

Shifting responsibility

Yet the logic of the Dublin system means that the burden of responsibility shifts towards states where migrants first entered Europe, irrespective of their relative capacity to process applications or to provide for applicants.

That can be seen from Eurostat data on the operation of the Dublin system. The chart below gives data on Dublin requests to transfer applicants for the period 2008-2013. It includes separate information on the number of requests made by each participating state, the number received by each state, and the balance of those two figures.

The higher a state’s balance of requests, the greater the probable benefit of the Dublin system to it. It turns out that all of the states that make more requests than they receive are in Northern Europe, with Germany and Switzerland to the fore. In contrast, the states that receive significantly more requests than they make are located exclusively on the southern and eastern borders of the Schengen zone – principally, Italy, Greece, Hungary and Poland. It is not surprising that some of these receiving countries intermittently protest at the unfairness of this pattern, with Hungary the latest example.

Inadequate asylum systems in states to which migrants could potentially be transferred are a further challenge for the Dublin arrangements. In recent years, Greece has been the most glaring example of a state with systematic failings in international protection. Transfers there have been suspended since 2011, because of the consequent risks to the fundamental rights of applicants, after negative rulings by the European Court of Human Rights and the European Court of Justice.

Questions have also been asked about Italy’s capacity to provide for the numbers of irregular migrants arriving and claiming protection. In a decision in November 2014, the European Court of Human Rights held that it was not safe to make a Dublin transfer to Italy unless specific assurances were obtained concerning the accommodation of applicants. Given the continuing pressure of irregular migration, the emergence of similar issues with other border states cannot be ruled out.

Time for reform

Political developments at the EU level during 2015 suggest there is growing recognition that the Dublin framework is inadequate. In its May 2015 European Agenda on Migration, the European Commission declared that: “the EU needs a permanent system for sharing the responsibility for large numbers of refugees and asylum seekers among member states”. That was followed in July by the voluntary agreement of 22 EU member states to relocate a total of 32,256 persons in need of international protection from Greece and Italy.

In the European Agenda, the Commission also indicated a possible “revision of the legal parameters of Dublin”. Given the ease of secondary movement within the Schengen zone, however, minor adjustments appear inadequate. It would be preferable to reject the perverse logic of sending applicants back to countries in which they do not wish to live, and which are reluctant to receive them.

Bernard Ryan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.