The Schengen area does not entail that there are no borders at all. On the contrary, it means that there are no boarders inside and check points and borders toward the non EU countries. On the basis of this assumption, stated by the Schengen Code, only few countries are responsible for managing the external boarders of the EU. Some of them are under a lot of pressure. Mainly Greece, Italy, and Hungary because they constitue the « easiest » road toward the EU. In order to control the flow of migration, the right of asylum can only be claimed in one single country. This rule is set-up by the Dublin Regulation, currently discussed at the European Parliament within the context of the relocation mechanisms proposed by the Commission on September 9th 2015.
At first sight, it is very logical why an application of asylum can only be made in one single country. National administrations are already drowning and cannot face the stream of applications. Thus, it is not a feasible option to see asylum seekers asking the right of asylum in different countries to increase there chances to be taken. The Dublin Regulation does not offer any flexibility. This is why in June, Italy and Greece requested a temporary and exceptional relocation to the other Member States. This was actually possible on the basis of the article 78§3 of the TFEU saying that « In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. » The drafters of the Lisbon treaty were particularly far-sighted.
Relocating migrants is a very difficult thing to do. This is either because they do not want to be relocated, or because they are not accepted by Member States, predominantly by the Eastern countries. Thus, the Dublin regulation constitues the legal basis for asylum application treatment. What exactly is this European Regulation? What does it say? What is the link with the proposal made by the Commission? Answers to these questions will provide some understanding as to what is at skate in the current European debate.
What does the Dublin Regulation say?
After establishing the principle that only one Member state is responsible for examining an asylum application, the Council Regulation No 604/2013 of June 2013 establishes the hierarchical criteria defining which Member State is responsible for each asylum application;
1) Priority toward the principle of family unity
2) Issuance of residence permits or visas
3) Illegal entry in a Member State
4) Application in an international transit area of an airport
It means that when the asylum seeker has a family member who has been allowed to reside as a refugee in a Member State, or if their application is underway, that member state will be responsible for examining the asylum’s application. If he has no family involved but he holds a valid residential document or visa, the member State that provided it will be responsible for examining the asylum application. If they have neither one nor the other but irregular crossed the border into a Member State, this Member State will be responsible for examining the asylum application and so forth.
These criteria encourage some countries (Italy, Greece, Hungary) to turn a blind eye on what is going on at their borders and let the migration flow turn toward England, Sweden, France or Germany; where the asylum seekers can directly introduce their claims. It is a win-win game. Firstly for the countries managing the external borders because it relieves their administrations. Secondly for the migrants, because some countries are more efficient in the treatment of the claims of asylum. Unfortunately it does constitute a violation of the European Law.
This issue is extremely sensitive. In the past Nicolas Sarkozy, the former French president de la République, threatened to leave the Schengen area in order to constraint Italy to correctly apply the Dublin Regulation. Currently, that is why Germany and Austria have temporarily suspended the Schengen agreements.
What is the link with the new package of proposals made by the Commission to face the refugee crisis?
In order to manage the most important migration crisis the European Union has ever faced, the European Commission made seven proposals on September 9th. Two of them are directly linked with the Dublin Regulation mentioned previously;
- An emergency relocation for 120 000 refugees from Greece, Hungary and Italy based on a mandatory distribution key using objective and quantifiable criteria (40% of the size of the population, 40% of the GDP, 10% of the average number of past asylum applications, 10% of the unemployment rate)
- The establishment of a permanent Relocation Mechanism which can be triggered any time by the Commission to help any EU-Member State experiencing a crisis situation and extreme pressure on its asylum system, as a result of a large and disproportionate flow of third country nationals.
The first one is nothing else than an ad hoc emergency measure in a very sensitive area. The second one is directly addressed to the Dublin Regulation. Indeed, the creation of a permanent mechanism to relocation is a disavowal for this rule recasted in 2013 but who can pretend it was working?
Even though the first criteria is actually linked to the family reunification, the reality is that the Dublin Regulation is actually driven by illegal entrance criteria, leading to a real lottery for the asylum seekers. It matters because the recognition rate is much higher in some countries than others. Beside this, the Regulation drives countries to militarize their approches of the boarders-management and deal with migrants through the use of detention centers which is a shame. To sum up, the Dublin Regulation is not sustainable anymore, especially due to the very-large-unexpected number of asylum seekers. What could work with a « small amount » of migrants cannot work with the very large amount people involved.
Almost everybody in the LIBE committee encouraged the burial the Dublin Regulation. Some MEPs, like Cornelia Ernst even boasted about « the dead of the Dublin Regulation.» Well, it is wrong to say so, because the number of persons to be relocated by the permanent mechanism shall not exceed 40% of the number of applications lodged with that Member State.
Importantly, everybody should be careful not to throw the baby out with the bath water. Indeed, before standing up against something it is necessary to bring a wised solution and with the Schengen area there is no easy answer. How do you conciliate the management of our boarders with the migration pressure, the Human rights and the freedom of movement? The temporary and exceptional relocation mechanism finally adopted by the Council on September 22th offers a preliminary answer(*) but the debate is still open.
* « This decision establishes a temporary and exceptional relocation mechanism over two years from the frontline member states Italy and Greece to other member states. It will apply to 120 000 persons in clear need of international protection who have arrived or are arriving on the territory of those member states as from six months before the entry into force until two years after the entry into force.
According to the decision, 66 000 persons will be relocated from Italy and Greece (15 600 from Italy and 50 400 from Greece) . The remaining 54 000 persons will be relocated from Italy and Greece in the same proportion after one year of the entry into force of the decision.
However, if the Commission considers that the functioning in practice of the relocation mechanism needs to be adapted to the evolution of the situation on the ground or that a member state is confronted with an emergency situation characterized by a sudden inflow of nationals of third countries due to a sharp shift of migration flows, it may submit a proposal to amend this decision. »
Source : Justice and Home affairs Council, 22/09/2015 – http://www.consilium.europa.eu/en/meetings/jha/2015/09/22/
For more informations :
– European Commission – Press release ; Refugee Crisis: European Commission takes decisive action – http://europa.eu/rapid/press-release_IP-15-5596_en.htm
– Proposal for establishing a crisis relocation mechanism and amending Regulation (EU) No 604/2013of the European Parliament and of the Council of 26 June 2013 establishing the criteriaand mechanisms for determining the Member State responsible for examining anapplication for international protection lodged in one of the Member States by a thirdcountry national or a stateless person – http://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/com_com%282015%290450_/com_com%282015%290450_en.pdf
– Extraodinary JHA Council – The Ministers adopted by a qualified majority the provisional mechanism for the emergcy relocation of 120 000 persons in need of international protection http://www.eu2015lu.eu/en/actualites/articles-actualite/2015/09/22-conseil-jai-extra/index.html
– The Dublin Regulation III – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF