The need to adjust a dysfunctional policy

Recent history of EU asylum policy could be summed up as ‘Dublin is dead. Long Live Dublin!’ While most commentators, analysts and implementers of the policy accept that the unfairness of the Dublin Regulation is at the heart of the dysfunctionality of the system, it nonetheless seems impossible for the EU to reach an agreement on reform. But reform Dublin it must. The alternative, to rely on a pure policy of externalisation is legally, politically and ethically questionable. And perhaps more important these days – it won’t work.

However, sticking with the status quo, i.e. with Dublin in place, means that there is always a risk that a manageable situation becomes a crisis, as in 2015. And with status quo, the perverse incentives for countries of first arrival to keep their reception conditions inhumane, the desire for and encouragement of secondary movement, the battles in the courts and transfers of people back and forth, and the attempt to prevent entry at any costs all persist.

The latter does not go far enough because, while it tinkers around the edge of Dublin, it retains the principle that the country of first arrival should be responsible for asylum claims, with a solidarity mechanism that only comes into effect when the system is overloaded.

Alternatives to the status quo

The European Council on Refugees and Exiles (ECRE) has put forward its alternatives both to the status quo and to the Commission’s proposal. The latter does not go far enough because, while it tinkers around the edge of Dublin, it retains the principle that the country of first arrival should be responsible for asylum claims, with a solidarity mechanism that only comes into effect when the system is overloaded. ECRE’s approach is to revise this principle itself: a set of factors beyond purely the geography of where people happen to arrive must be taken into account in the allocation of responsibility. Factors should include first, meaningful links with the country, including family connections beyond the narrow definition of family members in Dublin as it stands, and social and cultural links; second, the situation in the potential recipient countries, including economic and demo- graphic situation (e.g. GDP, labour market needs); third, compliance with EU and inter- national asylum law, with a focus on reception conditions and on quality of decision making; and fourth, the preferences of the person themselves, which have to be taken into account to some extent.

There are certain red lines: every Member State must accept asylum seekers and must either remain or become a country of asylum. It should not be possible for a country to buy its way out of the system. Strict enforcement of EU law is required so that Member States cannot de facto opt out by keeping their conditions so low that it becomes legally (and ethically) impossible to allocate claims to them.

Developing a functional asylum system

If the legal framework itself is to be based on the political objective of having a function- ing asylum system in Europe rather than on keeping people out then the restrictive elements proposed by the Commission should be removed, as ECRE has argued and as per the European Parliament’s position. If the restrictive elements are not removed, the main effect will be increased numbers of people in irregular situations. In this scenario, the EU institutions and agencies would focus on compliance with asylum law, meaning that there are implications for the Common European Asylum System (CEAS) proposals on the table, for example that the mandate of the EU Asylum Agency must include monitoring compliance. Then, EU funding under the Asylum, Migration and Integration Fund (AMIF) but also other EU funding instruments should have, as its aim, support for a functioning asylum system, meaning that at least 20% of its funds should be allocated to the functioning of asylum systems in Europe and at least 30 % should be allocated to integration. The ECRE recommends that the EU Asylum Agency plays the lead- ing role in implementing the allocation system, acting as a clearing house.

The relocation programme was important but the EU needs a permanent system that is fairer than Dublin. Introducing solidarity only when there is a crisis provides too much power to obstructionists. It is also too early to give up on protection in Europe – it takes years to adjust a dysfunctional policy but Europe has to do so: the rest of the world, including the major refugee hosting countries, expect Europe to do its fair share.

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