THE EUROPEAN UNION'S DUBLIN REGULATION AND THE MIGRANT CRISIS. (Convention Determining the Member State Responsible for the Examination of an Application for Asylum, 1990)

• Published date: 22 March 2020
• Author: Davis, Kimara
• Date: 22 March 2020

INTRODUCTION

In 2015, over one million migrants (1) arrived in the European Union ("EU"). (2) Many of the migrants were fleeing war and persecution in Syria, Afghanistan, Eritrea and other countries in Africa and the Middle East. (3) The majority of the migrants sought asylum in the EU, a haven where they believed they could find work and opportunities for a better life. (4) The EU, however, was financially and administratively unprepared for the unprecedented influx of migrants because it was recovering from a financial crisis. (5) The EU's migration policy, embodied in its "Dublin Regulation III" (the "Dublin Regulation"), requires that migrants register and apply for asylum in the EU member state they enter first. (6) Consequently, EU member states ("Member States") (7) closest in proximity to Africa and the Middle East were placed under considerable economic strain during the influx. (8) As a result, the Dublin Regulation and its efficiency has been called into serious question. (9) Three years after the initial spike in migration, the migration numbers have fallen dramatically because the EU and other member states took a number of actions in attempts to quell the number of entering migrants, including the controversial building of border fences. (10) Nevertheless, many of the issues underlying the Dublin Regulation, such as the disproportionate strain placed on certain countries and the violation of the human rights of asylum seekers, still exist. Leaders and scholars alike continue to call for its reformation or complete overhaul. (11)

The Dublin Regulation designates which EU member state is responsible for reviewing and processing an asylum application. (12) It states in relevant part, "Member States shall examine any application for international protection by a third-country national or a stateless person... The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible." (13) Further, "[w]here no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it." (14) The latter is usually the case for asylum seekers because asylum authorities do not give preference to family unity over criteria involving an asylum seeker's documentation or country of entry as intended by the Dublin Regulation. (15) Thus the "first Member State in which the application for international protection was lodged," also known as the state of first entry, is usually the responsible member state. (16) If all the member states had a proportionate amount of asylum seekers entering their borders to the member state's resources and size, the "state of first entry" rule would be an efficient means to balancing out responsibility for asylum applications amongst the member states. In reality, a few EU member states consistently carry a heavier burden of responsibility for asylum applications. (17)

Since the spike in migrant numbers in 2015, tensions between the member states with the most responsibility for asylum applications and the rest of the EU member states have increased dramatically. (18) Italy, a common state of first entry for migrants, has been at the fore in criticizing the EU's failure to control the migrant crisis because it has been forced to accept responsibility for a disproportionate amount of migrants compared to other member states. (19) In June 2018, Italy's Interior Minister Matteo Salvini promised Italians that, contrary to the Dublin Regulation, Italy would drastically decrease the number of migrants entering the country and increase the number of deportations of illegal migrants. (20) He proposed creating deportation centers and taking legal action against organizations that rescue migrants at sea and bring them to Italy. (21) Just days later, Salvini began to make good on his promise by banning ships carrying rescued migrants from docking at Italian ports. (22) Salvini refused to allow another boat of nearly two hundred migrants to disembark, urging the rest of the EU member states to take responsibility for the migrants on the boat. (23) Italy's Deputy Prime Minister, Luigi Di Maio, threatened to withhold twenty-three billion USD, or twenty billion euros, that Italy pays to the EU every year if other member states did not pledge to take responsibility for migrants in Italy. (24) Italy cites the lack of housing and employment opportunities available for its hard stance on anti-immigration. (25) It also complains that the country can barely provide for its own citizens, let alone hundreds of thousands of migrants. (26)

Other member states followed Italy's lead, resulting in the creation of the "Anti-Immigration Axis" in opposition to the EU's pro-immigration laws and policies. (27) The Anti-Immigration Axis consists of Italy, Hungary, Austria, Czech Republic, Slovakia and Poland. (28) Its goal was to reverse the EU's open-door migration policies by changing the political composition of pro-immigration EU institutions, such as the European Parliament and European Commission, in the 2019 elections. (29) The Anti-Immigration Axis and other far-right parties made large gains in some countries during the European Parliament elections, but suffered losses in others. (30) The undertaking was a moderate success, with far-right parties having more representation than in the past. These gains will also play a role in the make-up of the European Commission, which the members of the European Parliament must approve. (31) In response to the Anti-Immigration Axis' formation, the European Parliament voted to initiate Article 7 sanction proceedings against Hungary because Hungary passed new anti-immigration legislation, abusing the rule of law. (32) The proceedings could terminate Hungary's EU voting rights. (33)

While the crisis continues and the threat of disunity between the member states looms, there is hope for reform that will satisfy everyone involved. In his 2018 State of the Union address, the President of the European Commission propositioned several steps to assist member states with asylum procedures under the Dublin Regulation. (34) Some proposals include increasing the EU Asylum Agency budget and deploying more Migration Management Support Teams, especially to migration "hotspots" like Italy and Greece. (35) In the meantime, the Dublin Regulation remains unchanged. (36) The first part of this note will examine the Dublin Regulation and its role in the European migration crisis. The second part will discuss the issues with the Dublin Regulation. The third part of this note will propose remedies for these issues and analyze proposals put forth by politicians, organizations, and scholars.

I. BACKGROUND

The Dublin Regulation is a part of the EU's common asylum system. (37) Before the EU enacted the Dublin Regulation, a major approach to migration was the Schengen Agreement signed in 1985 by Germany, France, and three other European countries. (38) The Schengen Agreement removed any "obstacles to free movement at the common borders" of European countries. (39) The Schengen Agreement regulates internal migration. (40) The Dublin Regulation provided a solution for regulating migration originating in non-EU countries. It specifically regulates asylum applications from migrants seeking protection under the Geneva Convention, which outlines the rights of refugees and the obligations member states have to them. (41)

The Dublin Regulation was originally enacted by the EU in 1990. (42) One of the Dublin Regulation's main functions is to determine which member state is responsible for an asylum application. (43) Assigning responsibility to member states ensures that migrants arc not in "orbit" because no member state will accept responsibility for his or her asylum application. (44) Should a member state determine that it is not responsible for an asylum seeker's application, the Dublin Regulation gives the member state the authority to return that asylum seeker to the member state that is actually responsible for their application. (45)

One of the Dublin Regulation's primary goals is to stop "asylum shopping," which is when asylum seekers submit asylum applications to member states with the most attractive benefits or member states more likely to accept them. (46) Instead of member states with weaker asylum systems and less opportunities being the ones overburdened with asylum applications, member states with stronger asylum systems and greater opportunities will be overburdened as asylum applicants flock to them. (47) Asylum shopping leads to the opposite problem of the present system: potential increased strain on member states with the best benefits, like Germany. (48) At some point, those asylum systems will not be able to sustain the amount of migrants that apply there. They will end up with failing facilities and little funds, just like the asylum systems that migrants initially tried to avoid in the first place. (49)

Another goal was to prevent asylum seekers from submitting multiple applications to several member states with the hopes of increasing their chances of having their applications accepted or having many member states to choose from. (50) When asylum applicants do this, the system becomes backed up with duplicate applications, slowing down the asylum process for everyone. (51) In addition, it causes confusion since it is nearly impossible to figure out which member state is actually responsible for an asylum applicant who has submitted an application in more than one member state. (52)

The Dublin Regulation also sought to prevent member states from denying protection and pushing responsibility for asylum seekers onto other member states. (53) The principal of non-refoulement, or the refusal to send any asylum seeker to a state where he or she faces...