Parliamentary Assembly

Draft resolution

1As Parties to the 1951 Convention relating to the Status of Refugees, all Council of Europe member States have an obligation to protect refugees. In order to determine who should benefit from this protection and thereby avoid breaches of the obligation, it is necessary to examine individual asylum applications.

2The Dublin Regulation is a European Union legal instrument establishing a system for definitive identification of the participating State responsible for examining a particular application. Alongside other instruments and mechanisms, it forms part of the European Union’s wider Common European Asylum System (CEAS). Its essential purpose is to address the problems of “asylum shopping” and “refugees in orbit”. Addressing these problems remains crucial for the CEAS to function as it should.

3Since the original Dublin Convention was adopted in 1990, however, the scale, nature and geographical focus of mass migration into the European Union have changed significantly, with especially dramatic developments in recent years. In addition, the distribution of asylum applicants between participating States is extremely uneven, in many cases simply because of their geographical location – for example, in 2014, five participating States dealt with 72% of all applications.

4The Dublin system is not intended or capable of functioning as a “burden-sharing” mechanism to counteract this inequity. On the contrary, the inequity is exacerbated by Dublin transfers of asylum applicants based on the criterion of “irregular border crossing” – the most commonly evoked, by which asylum seekers are transferred to the country of first entry to European Union territory. The Dublin system has thus become a symbol of unfairness and lack of solidarity in European asylum policy, in particular the CEAS, which lacks an effective compensatory mechanism for redistributing the burden.

5Furthermore, the Dublin system has given rise to violations of asylum seekers’ human rights, including the right to family life, the right not to be subjected to inhuman or degrading treatment, the right not to be subjected to refoulement, the right not to be detained arbitrarily and the right to an effective remedy. Some of these violations have been the subject of court judgments, including of the European Court of Human Rights. The Dublin system may also subject asylum applicants to a lengthy period of uncertainty and precarity before the State responsible for examining their application is identified; this may be further prolonged where the person concerned is transferred to a country with lengthy delays in its asylum procedures.

6Many of these problems are caused by deficiencies in implementation of other elements of the CEAS, in particular the Eurodac Regulation (on fingerprinting of asylum applicants), the reception conditions directive and the asylum procedures directive, which may obstruct proper implementation of the Dublin system. Indeed, the fact that transfers of asylum applicants to a particular country constitute a burden is a perverse incentive not fully to comply with these other instruments. In the case of the reception conditions and asylum procedures directives, this comes at great cost to the protection afforded to asylum applicants.

7The Parliamentary Assembly concludes that the Dublin system is dysfunctional. It is not effective and certainly not efficient in achieving its basic aims, and its operation in practice has an unacceptably high human cost for asylum applicants and resource cost to participating States in complying with its lengthy and complicated procedures, whilst only aggravating the unfair repartition of responsibility. Furthermore, it is difficult to see how the Dublin system can operate as intended, as it depends on the still unfulfilled assumption that all participating States are able to ensure protection of asylum applicants and properly cope with the number of applications they receive. Indeed, recent events in Germany, Austria, Hungary and elsewhere show that the Dublin system has already collapsed and must be reformed as a matter of urgency.

8The Dublin system, including both the Regulation itself and its implementation in practice, is thus in urgent need of reform – as, indeed, is the wider CEAS. Without far-reaching reform, there is a risk of participating States suspending or withdrawing from the Dublin system, which would cause chaos and confusion. The Assembly welcomes the fact that the European Commission will conduct an evaluation of the Dublin system in 2016 and takes note of the European Council conclusions of 26 June 2015. Nevertheless, many necessary measures can and should be taken now, and the need for other, more far-reaching ones is already apparent. Whilst reform of the Dublin system cannot provide answers to all of the questions raised by today’s mixed migratory flows to and around Europe, failure to reform it will undermine all other efforts to address the issue and place the entire CEAS in jeopardy. European political solidarity is at stake.

9The Assembly therefore recommends, as regards implementation of the Dublin system and related instruments:

9.1strict application of the family-related responsibility criteria and provisions concerning the best interests of the child, notably those relating to unaccompanied minors;

9.2application of the dependent persons and humanitarian clauses in a fair, humane and flexible manner, taking greater account of asylum seekers’ preferences;

9.3rigorous application of the discretionary clauses where a transfer would be incompatible with obligations under international law;

9.4avoidance of reflexive recourse to the criterion of “irregular border crossing” in order to return asylum applicants to the country of first entry;

9.5aggressively proactive use of the mechanism for early warning, preparedness and crisis management in anticipation of critical pressure on or problems in the functioning of a participating State’s asylum system;

9.6prompt and full implementation of relevant judgments of the European Court of Human Rights and the Court of Justice of the European Union;

9.7full and effective implementation of the reception conditions and asylum procedures directives by relevant States;

9.8enhancing the resources available to and making greater use of financial mechanisms such as the Asylum, Migration and Integration Fund;

9.9greater sharing of expertise and provision of technical assistance, including through the European Asylum Support Office.

10As regards the wider context within which the Dublin system operates and on which it is dependent, the Assembly recommends:

10.1greater harmonisation and stronger supervision of national refugee-status determination procedures, leading to mutual recognition of positive national status-determination decisions; or otherwise “joint” processing of asylum applications, which would have the advantage of contributing to burden sharing;

10.2ensuring, through appropriate, automatic procedures, relocation of recognised refugees on a level adequate to ensure equitable burden sharing amongst the participating States;

10.3introducing a status of “European refugee” for beneficiaries of international protection, allowing transfer of residence and exercise of other rights between States; or otherwise, shortening to two years the qualification period for beneficiaries of international protection to qualify under the long-term residents directive.

11As regards revision of the Dublin Regulation, the Assembly recommends:

11.1prompt adoption of the European Commission’s legislative proposal intended to resolve the ambiguity in the provision regulating responsibility for asylum applications lodged by unaccompanied minors;

11.2considering removal of the criterion of “irregular border crossing” as a basis for determining which State is responsible for an asylum application;

11.3taking account of the foregoing recommendations, undertaking an immediate evaluation of the Dublin system, which takes a holistic view of the overall effects of the Dublin system and of the wider context within which it operates.