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Resolution 2072 (2015)
After Dublin – the urgent need for a real European asylum system
1. As 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.
2. The 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.
3. Since 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, and in particular in the
last few weeks. 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.
4. The 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 transfers of asylum
applicants, carried out in application of the Dublin Regulation,
based on the criterion of “irregular border crossing”. This is the
most commonly evoked criterion by which asylum seekers are transferred
back 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.
5. The dysfunctionality inherent in the Dublin system has its
adverse effects beyond the borders of the European Union. The core
of the system, which stipulates the transfer of refugees to the
first country of entry to the European Union has brought about an
additional, often hidden unfairness: that in some cases the first country
of entry to the European Union tends to reject the asylum application
artificially in order to be in a position to send these asylum seekers
to the last transit country in which they had been present before
entry into the European Union. This puts an additional and unfair
burden on non-EU Council of Europe member States which are mainly
on the transit route.
6. Furthermore, the implementation of the Dublin system has in
a number of instances given rise to violations of asylum seekers’
human rights, such as the right not to be subjected to inhuman or
degrading treatment, the right not to be detained arbitrarily, the
right to respect for private and family life, the right to an effective
remedy and the prohibition of collective expulsions. Some of these
violations have been confirmed by court judgments at the national
or European level. 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.
7. Many 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, Regulation (EU) No. 603/2013), the
reception conditions directive (Directive 2013/33/EU) and the asylum
procedures directive (Directive 2013/32/EU), 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 to comply fully 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.
8. The Parliamentary Assembly has already expressed criticism
about the functioning of the Dublin system, in particular in its Resolution 2000 (2014) on
the large-scale arrivals of mixed migratory flows on Italian shores, Resolution 1918 (2013) on
migration and asylum: mounting tensions in the eastern Mediterranean
and Resolution 1820 (2011) on
asylum seekers and refugees: sharing responsibilities in Europe,
and 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 costs 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.
9. The 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.
10. The Assembly therefore recommends that the European Union
and its member States, as regards implementation of the Dublin system
and related instruments:
10.1. include
a permanent binding system of distribution of asylum seekers between
member States, using fair, compulsory allocation criteria, while
taking into account the prospects of integration and the needs and
specific circumstances of asylum seekers themselves;
10.2. strictly apply family-related responsibility criteria
and provisions concerning the best interests of the child, notably
those relating to unaccompanied minors, to facilitate family reunification
beyond the nuclear family;
10.3. apply the dependent persons and humanitarian clauses in
a fair, humane and flexible manner, taking greater account of asylum
seekers’ preferences;
10.4. rigorously apply the discretionary clauses where a transfer
would be incompatible with obligations under international law;
10.5. avoid reflexive recourse to the criterion of “irregular
border crossing” in order to return asylum applicants to the country
of first entry;
10.6. use in an extremely proactive manner 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;
10.7. ensure harmonisation of national asylum procedures and
standards through the full, effective and coherent implementation
of the asylum procedures directive, the reception conditions directive
and the qualification directive (Directive 2011/95/EU);
10.8. enhance the resources available and make greater use of
financial mechanisms such as the Asylum, Migration and Integration
Fund;
10.9. increase their sharing of expertise and provision of technical
assistance, including through the European Asylum Support Office;
10.10. promptly and fully implement relevant judgments of the
European Court of Human Rights and the Court of Justice of the European
Union.
11. As regards the wider context within which the Dublin system
operates and on which it is dependent, the Assembly recommends:
11.1. stronger supervision of national
refugee status determination procedures, leading to mutual recognition
of positive national status determination decisions; otherwise,
“joint” processing of asylum applications, which would have the
advantage of contributing to burden sharing;
11.2. ensuring, through appropriate, automatic procedures, relocation
of recognised refugees on a level adequate to ensure equitable burden
sharing amongst the participating States;
11.3. introducing a status of “European refugee” for beneficiaries
of international protection, allowing the transfer of residence
and exercise of other rights between States; otherwise, shortening
to two years the qualification period for beneficiaries of international
protection to qualify under the long-term residents directive (Directive
2003/109/EC).
12. The Assembly calls on the European Union and its member States
to urgently revise the Dublin Regulation. For this purpose, it recommends,
in particular:
12.1. prompt 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;
12.2. considering removal of the criterion of “irregular border
crossing” as a basis for determining which State is responsible
for an asylum application;
12.3. considering the introduction of the notion of “manifestly
founded claims” in order to speed up asylum procedures;
12.4. taking account of the foregoing recommendations, undertaking
an immediate evaluation of the Dublin system, including the member
States of the European Union, as well as the non-EU member States
of the Council of Europe that are on transit routes, which takes
a holistic view of the overall effects of the Dublin system and
of the wider context within which it operates.