The Dublin Regulation is dead; long live Dublin? Highly publicised when it was announced on 16 September by the President of the Commission, Ursula von der Leyen, the abolition of the Dublin Regulation and its latest revision tabled in 2016 raised great expectations, as the criterion of first entry of the asylum seeker, which must be applied by default to determine the State responsible for an asylum application, has been the symbol of the injustices of the system felt by the Southern countries of the EU.
The Commission therefore had to present an alternative that was up to the task and attempted to do so through its Regulation on ‘Asylum management and migration and the protection of persons from non-Member States and stateless persons’.
The Commissioner for Promoting the European Way of Life, Margaritis Schinas, and the Commissioner for Home Affairs, Ylva Johansson, insisted on Wednesday 23 September that the family criterion would now be paramount in determining which State is responsible and the concept of family would be extended to include siblings and the form of families in transit. An asylum seeker (excluding minors, for whom a special regime is maintained) who has a sister or brother in Germany will therefore have his or her asylum application processed in Germany; the Commission had already proposed this in 2016 and is therefore taking up this extension today.
A new criterion has also been introduced in this new 118-page regulation: the fact of having had a diploma or qualification in the past in a particular Member State (secondary education equivalent to level 2 of the international standard ‘Classification of Education’, defined in Directive 2016/801). In this case, that Member State will automatically be responsible.
Once all these criteria have been assessed, the criterion of first entry (the State where the person was first registered) can therefore only be applied by default, if the candidate does not meet any other situation
The problem is that “this is already the case at present, with the criterion of extended family reunification already being applied in some Member States”, says one source, according to whom this new reading of the criteria may not bring about any real change.
In the European Parliament, Fabienne Keller’s report on the implementation of Dublin III (in force since 2013), however, says the opposite and points to a persistent problem: according to the observation made in her report, Member States do not, on the contrary, sufficiently apply these criteria for family reunification and too often favour this criterion of the country of first entry by default.
The French association Cimade, for its part, explains in an article from March 2020 that, in the current application of Dublin, “family criteria are given priority, but as a general rule, the notion of family is understood in the strict sense of the ‘nuclear’ family: spouse or cohabitating relationship and minor children of the family”.
In any case, for some of the observers contacted, the change for countries of first entry (apart from the great migratory pressures which are the subject of a separate mechanism) therefore remains to be proven. Some even call it “window dressing”.
Responsibility for an application increases to 3 years
On the other hand, one change has not gone unnoticed: the extension of the changeover period for the responsibility of a Member State, for example to take back a candidate if the latter, having entered its territory illegally, escapes and, through secondary movements, lodges a new asylum application in another Member State.
The limit was previously set at 18 months; it has now been raised to 3 years. “An improvement” for some Member States such as France or Germany, says one diplomat. In 2016, the member countries had had difficult negotiations and Bulgaria had proposed a stable responsibility of 5 years, which was considered too long in the South and not long enough by Germany, which had suggested 10 years.
Faster ‘Dublin transfers’
Another change introduced is the procedures for taking back asylum seekers, the so-called ‘Dubliners’, whose fate was brought to light after 2011, when the Court of Human Rights in Strasbourg ruled against Belgium for having retransferred an asylum seeker to Greece, a country that could not take care of this asylum seeker in a dignified manner, the Court ruled.
Several member countries, in the wake of this, had stopped their transfers. The proposed reform now envisages speeding up these transfers with simple notifications of the return of these asylum seekers, whereas before, a Member State had to wait for the response and authorisation of the country of first entry requested to take back this person.
The time limits for transfers and the procedures for challenging them are also accelerated.
Naturally, there is a major novelty in this new ‘Dublin’: the compulsory solidarity mechanism is designed to help front-line countries when they are faced with large numbers of arrivals; aid will then have to be automatic, between relocations or assisted return.
But initial reactions, both in Parliament and in the Eastern countries, already suggest that the implementation of this mechanism will be complex.
Among the improvements made, the Commission also promises that recognised refugees will enjoy greater rights to facilitate their integration into European society. They will have the right to acquire long-term resident status in the EU after 3 years, instead of 5, thanks to a targeted amendment to the long-term residents directive. They will therefore be able to “live and work in another Member State”.
Link to the proposals: https://bit.ly/3349lPg; link to the current Dublin Regulation: https://bit.ly/308DIlC (Original version in French by Solenn Paulic)