Written by Victoria Smythies and Lara Ramazzotti.**
The views contained in this article are solely those of the authors. They do not necessarily reflect the positions or policies of, or endorsement by, the American Bar Association, the Section of International Law, or the International Refugee Law Committee.
The protection of refugees and asylum seekers has been a binding international responsibility since the early 1950s with the introduction of the Geneva Convention Relating to the Status of Refugees of 1951. “Any person who […] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, has, inter alia, a right under the Convention to be granted international protection in the signatory states. While the Refugee Convention dates back to the middle of the 20th century it was only in the 1980s and 1990s that asylum and refugee matters were addressed within the EU. In the last 23 years, Europe has seen the Dublin Convention grow into the Dublin II Regulation (DR II) and finally develop into the Dublin III Regulation (DR III) without seeing any significant improvement for balancing asylum seekers protection and Member States’ (MS) burden. This article will establish that the EU has failed to provide a fair mechanism for determining MS responsibility for examining asylum claims, and hence has made the entire asylum system in the EU dysfunctional and debatably not in line with international standards of refugee protection.
Dublin II: Failed Attempt to Create a Common and Fair European Asylum System
The DR II was adopted on the 18 February 2003 by the Council of European Union as part of the project to create a Common European Asylum System (CEAS). In particular, its main aim was to provide a set of criteria for determining the MS responsible for the examination of an asylum application at European level, in order to eliminate the pre-existent ambiguity which until then had led to countless cases of ‘asylum shopping’, ‘multiple asylum applications’ and ‘refugees in orbit’.
While the improvements provided by the DR II in terms of speed and effectiveness of the European asylum mechanisms were undeniable, other outcomes were of great concern. First and foremost, the DR II turned out to be a strongly unfair mechanism of ‘burden sharing’ among MS. UNHCR clearly pointed out this aspect just two years after its adoption: “The DR II…does not contain any mechanism to ensure that responsibilities are shared in a balanced or equitable manner. …In particular the criterion of illegal border crossing might place a disproportionate responsibility on States at the external borders of the Union”. In fact, the last several years have seen a comparatively high number of refugee applications in some countries of Eastern and Southern Europe. Greece, for example, had fewer than 1,000 reception places available in 2010, yet received over 10,000 new asylum applications. In Malta in 2012 4.9 asylum requests per 1000 inhabitants were submitted, whilst the average in the EU for the same year was 0.6. In the light of these results, the system implemented by the DR II could be effectively described as a ‘burden shifting’ rather than a ‘burden sharing’ among MS.
Secondly, the application, without any previous or further verification, of the mechanisms set up by the DR II – and in particular the so-called ‘automatic mutual trust’ criterion between MS – could imply the violation of the essential principle of non-refoulement. The DR II, indeed, allowed a MS which was not responsible to examine the application to return the asylum seeker to the first European country s/he entered, but it did not provide for a mandatory suspension of this mechanism in case of systemic deficiencies in the asylum procedure of the latter.
Thirdly, the differences between the asylum systems of MS have never ceased to be considerable, despite the fact that the DR II was adopted as part of a broader project aimed at establishing “a common policy on asylum” in Europe as well as “an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community”. After more than ten years, the DR II had widely demonstrated its powerlessness in order to achieve these goals, and the consequence is a veritable “asylum lottery” for most of the applicants.
Dublin III: Another Failed Attempt?
In the years since the implementation of the DR II, several courts have addressed the apparent disregard for human rights. While this issue has been examined by national courts, the judgment of the Grand Chamber of the European Court of Human Rights in MSS v Greece and Belgium highlights the array of issues faced by the EU with regard to its asylum obligations. Effectively, EU law was incompatible with the fundamental obligations that the MS owed to those seeking protection under international law. A key aspect of the judgment was its criticism of the DR II which include inter alia (i) that it has created disproportionate burden on certain MS, (ii) it is based on shared minimum standard within the EU, regarding both standards of detention and procedures. This has meant that a large proportion of asylum seekers have been shifted to the EU peripheral countries, “imposing untenable pressure on those States situated along Europe’s borders, gateway countries such as Poland, Spain, Italy and Greece”.
The Court of Justice of the European Union (CJEU) in the case of N.S v Secretary of State for the Home Department, stated, “…the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter”. The CJEU’s judgment clarified that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU MS “observe the fundamental rights of the European Union”. The judgment confirmed that MS are responsible for implementing the provisions of the EU asylum system to suitable standards and that a failure to do so may bring them into conflict with their international legal obligations.
In 2008, in an attempt to address the problematic and controversial consequences of the implementation of the DR II, discussions started at European level that have led to the adoption of a new set of rules. The DR III entered into force on 19 July 2013. Several issues were tackled but the varying degrees of success will rely upon further action taken by MS. The Commission proposed a mechanism for dealing with the inefficiency of the previous system that had resulted in overburdening “certain Member States with limited reception and absorption capacities” as well as a lack of “adequate standards of protection in the responsible Member State, in particular in terms of reception conditions and access to the asylum procedure”. A new kind of procedure was introduced in the DR III proposal which would have allowed for a temporary “suspension of Dublin transfers towards the responsible Member State” under these circumstances; however, the Council’s amendments abolished this idea. Why the Council missed the opportunity to create a more efficient and balanced responsibility-sharing system, is a question without any palpable answer. Article 33, nevertheless, outlines “[a] mechanism for early warning, preparedness and crisis management” but the responsibility relies heavily with the MS facing crisis.
While the DR III has created a pivotal moment in history because it marks the creation of the CEAS, it remains to be seen how each MS will apply the regulation. Implementation is the crucial step that will influence the rights of asylum seekers and most severely impact their ability to seek protection in Europe. The DR III fails to go far enough to guarantee a full and fair examination of asylum claims, to better ensure family reunification, and better protect the best interests of children and other vulnerable persons. Moreover, the EU still works from the presumption that protection standards are equally present and applied in all MS, a presumption which has clearly proved to be inaccurate by the above case law. The safeguards defined in Article 33 are a possible step in the right direction, but they are still not enough to resolve the crux of the problem and they do not address the fundamental flaws of the system. Such a solution can be effective temporarily by reducing harmful effects, but does not represent a long-term answer. What is also needed, in addition to changing the distribution of responsibility, is greater financial compensation for MS that face the pressure of mass inflows of asylum seekers, as well as strengthening individual national systems.
Far from promoting inter-State solidarity, a long-standing EU goal, it seems that the Dublin system has shifted responsibility for refugee protection toward the MS in Europe’s southern and eastern regions. Indeed there has been an 87 per cent increase in asylum levels in Southern European countries. The principal issue with the DR III is that it did not alleviate the problems caused by the DR II’s ‘burden shifting’ scheme.
The harmonising measures adopted by MS, most notably the DR, have been subject to clear criticism. Indeed the practices of MS reveal a systemic failure to comply with international refugee protection obligations: “appalling living conditions faced in many gateway States, limited access to application processes, poor decision making…mean that European States are routinely evading their Convention obligations”. Promises that the DR III would address the significant challenges presented by the DR II appear to have fallen short in many ways and need to be solved before the EU can regain its reputation as the “champion of the rights of the refugee”.
** Ms. Ramazzotti holds an M.A. in Political Science from Milan University. Ms. Smythies holds a J.D. from the University of Alabama and an LL.M. in International Law from the University of Vienna, with Distinction. Both Ms. Ramazzotti and Ms. Smythies currently serve as Legal Interns for the Fahamu Refugee Programme in Oxford, the United Kingdom.
 UN General Assembly, “Convention Relating to the Status of Refugees” (28 July 1951) UN, Treaty Series vol. 189, 137.
 Ibid. Art. 1A(2).
 The Schengen Agreement on freedom of movement in 1985.
 The Dublin Convention in 1990.
 The Dublin II Regulation, Council Regulation (EC) No 343/2003 (18 February 2003).
 The first and most relevant among these criteria is that “the MS responsible […] shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a MS”(art. 5(2)). Art. 10(1) adds that “where it is established […] that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the member state thus entered shall be responsible for examining the application for asylum”.
 UNHCR, “The Dublin II Regulation. A UNHCR discussion paper”, April 2006.
 Ibid at 3.
 UNHCR, “Asylum Trends 2012. Levels and Trends in Industrialized Countries”, 2012.
 Two different judgements in 2011 (M.S.S. v. Belgium and Greece App. No. 30696/09 of the European Court of Human Rights and C-411/10 N.S. v. Secretary of State for the Home Department of the EU Court of Justice) practically abolish the principle of automatic mutual trust among MS and prohibit the return of an asylum seekers to a country where the deficiencies of the asylum system amount to breach of human rights.
 Supra note 5 at Preamble.
 Joanna Lenart, ’Fortress Europe’: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamentals Freedoms, Merkourios – Utrecht Journal of International and European Law, Vol. 28/Issue 75, 2012.
 M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011.
 Arimatsu L., et al. The UN Refugee Convention at 60: The Challenge for Europe, Chatham House Briefing Paper, (2011).
 Ibid at 8.
 N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, European Union: Court of Justice of the European Union, 21 December 2011, at para. 94.
 Ibid at para 105.
 The Dublin III Regulation, Regulation (EU) No 604/2013 of the European Parliament and of the Council (26 June 2013).
 Commission, “Proposal for a Regulation of the European Parliament and of the Council 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” (Recast) COM (2008) 820 final, at 10.
 Supra 18 at Article 33.
 European Council on Refugees and Exiles, ‘Comments from the European Council on Refugees and Exiles on the European Commission Proposal to the Recast Dublin Regulation’ (April 2009).
 UNHCR, “Report on Asylum Levels and Trends in Industrialised Countries” (2011).
 Arimatsu, supra note 14, at 1.
 Ibid at 9.
 Ibid at 1.