ECRE has published in its annual assessment of the Dublin Regulation, which shows that the Dublin system is dysfunctional like never before.

It may seem like a technical or parochial discussion to be having at a time when violence, persecution, indeed all manner of atrocities, are causing people to flee their homes, within and around Europe, as well as elsewhere across the globe. But the two issues – Europe’s flawed rules and global displacement – are linked: when asylum systems don’t function in Europe, too often the response is to prevent people arriving rather than to tackle the flaws.

Certainly, Europe could and should do far more to end violence and persecution – or at least to not support it in the first place through complicity with repressive and violent regimes. But EU foreign policy is floundering and European states remain wedded to actions that generate displacement, from selling arms to cosying up to dictators and abusers. That is unlikely to change and even if it did, Europe alone would not be able to reverse the many global trends which will create displacement in the short and medium term, from the rise and rise of authoritarianism and its psychotic little big men leaders, to militarism and violent conflicts, to the now prevalent disregard for IHL and the consequent targeting of civilians, to environmental degradation and the struggle for resources.

The facts are that while large numbers of people remain and continue to be displaced, some of them (a relatively small percentage) will seek protection in Europe and Europe needs to be able to manage that without panic and paralysis. Thus, a functioning asylum system is a must, and so we come inevitably back to Dublin. ECRE’s analysis makes for bleak reading.

The briefing on the implementation of Dublin in 2022 is based on information in ECRE’s databases (AIDA and EDAL), on Eurostat and EUAA sources, and builds on the large scale analysis of Dublin ECRE carried out for the European Parliament. Some of the main takeaways:

1/ The vast majority of Dublin requests are doomed to fail…

In 2022, there were more Dublin requests than ever before. But the vast majority end in failure: only 8% of Dublin requests culminate in the transfer of the asylum applicant. For the states that are the main users of the system, the rate of transfers to requests is even lower – for Germany, just 6% of Dublin requests lead to a transfer; for Belgium and France 7%; Austria also 6%. These are the top four issuers of Dublin requests.

2/… but states insist on putting applicants into Dublin procedures.

The reasons for these failures are multiple and cover legal, policy and practical obstacles, but states insist on continuing to use the system, inflicting long periods of limbo on applicants and creating significant costs and administrative burden for their own authorities.

Many states both transfer out and accept back applicants, so the ludicrous situation of asylum applicants being flown around Europe persists: thousands of people go in one direction, while thousands of others go in the other.

3/ Obligations based on family unity are almost totally disregarded.

The Dublin Regulation prioritises  family unity – at the top of the hierarchy are the criteria allocating responsibility to a state where the applicant’s family members are present and applying the principle of the best interests of the child, which often also links back to family unity.

In practice, the family unity clauses are seldom used. Of all the Dublin requests issues, approximately 2% were family unity requests. It may be that very few applicants had family members such that a take charge request could be issued on that basis, but it seems highly unlikely, given that the main countries of origin of people seeking protection are Syria, Afghanistan and Turkey.

The only country that makes a concerted effort to use the family unity clauses is Greece and most of its requests are rejected by the receiving countries.

4/ Massively disproportionate responsibility for countries of first entry persists.

The Dublin system continues to contribute to the disproportionate allocation of responsibility to the countries of first arrival. First, 70% of the transfer requests are based on the take back provisions, whereby a state requests that another country takes back the applicant on the basis that they have applied for asylum there. Second, a large number of take charge requests are also based on attempting to return the applicant to the country of first entry – 89% of take charge requests either ask a country to take charge based on it having issued a visa or other document or based on the irregular entry of the applicant.

This is of course the heart of the irreconcilable conflict over Dublin: for the countries at the borders it is not fair that they are responsible for the applicants that apply there and remain there, plus the applicants that leave and then are subject to take back requests, plus the people who are subject to take charge requests on the basis of the irregular entry criterion, all while family reunification doesn’t work. For the countries to which people have travelled, these are the rules – the injustice is that countries of first entry are not fulfilling their responsibilities.

5/ The discretionary clauses have potential but remain barely used.

Member States have the right to assume responsibility for an application based on sovereignty or humanitarian reasons; analysis of 2022’s figures shows that these clauses are rarely (sovereignty) or barely (humanitarian grounds) used. Nonetheless, there were 4800 instances of their use and they remain a good way to meet one of the main but overlooked objectives of the system – to ensure rapid access to an asylum procedure.

6/ Dublin is the source of asylum litigation par excellence…

The analysis shows that Dublin is the subject of numerous legal challenges in national courts every year, and also continues to be the subject of significant cases at both European Courts. At national level, courts frequently block transfers back to certain countries on the basis that the applicant’s rights will not be respected.

Courts continue to find that systemic deficiencies characterise some states’ asylum systems, including Bulgaria, Greece, Hungary and Italy in 2022. Even where there is no finding that problems are systemic, the courts may require that individual guarantees are provided before an applicant is transferred. Typical examples would be requiring that the target state guarantees that the person will have access to suitable reception conditions and/or access to an asylum procedure. The risk of refoulement and the unlawful use of detention are other obstacles to return. In some cases, the treatment of not just asylum applicants but even people with status is so poor that it is a reason to halt a transfer on human rights grounds.

For various of these reasons, no transfers took place to Greece and very few transfers were possible to Bulgaria, Croatia, Denmark, Hungary, or Malta. Although over 2000 transfers back to Italy took place, that constitutes only 8% of the requests it received, and at the end of 2022, Italy declared that its asylum system was “saturated” and so it could no longer accept transfers. An emerging strand of jurisprudence concerns the principle of mutual trust – national courts are requesting CJEU interpretation of the principle because they cannot trust that their fellow Member States are respecting EU law in the asylum domain.

7/ … but states do not incorporate case law into policy.

Despite the extensive, constant legal challenges, states do not put in place policies or formalised practices to restrict or cease transfers to particular countries even when it is clear that they will always be blocked by courts. This in turn creates administrative burden and uncertainty as individual cases have to be litigated.

8/ Information gathering is better – despite one big lacuna.

A small bright spot is that states’ provision of information is improving: this year is the first time that basic information was available for all states in the Dublin system by October. Thus, a comprehensive picture of the use of the Dublin system can be established. There is still a lack in terms of the breakdown by nationality of the applicants subject to Dublin procedures, which hampers a deeper understanding of the relationship between the rules and population movements of displaced people, including the motivations of applicants.

Saved by the RAMM?

None of this new – although it is getting worse. The answer for some will be the Pact – the reforms of EU asylum law which include the repeal of Dublin and its replacement with the Regulation on Asylum and Migration Management (RAMM).

The arguments over the RAMM are well-rehearsed: like the 2016 Dublin IV reform proposal before it, the RAMM is not a deep or comprehensive reform of Dublin. Instead, it largely maintains the rules on allocation of responsibility, while introducing a corrective solidarity mechanism which aims to compensate by alleviating some of the responsibility of the countries at the external border through relocation and provision of money and support. The Commission argued insistently that it was not politically acceptable to propose the deeper reform that was at least under consideration in 2016.

The Commission is setting a lot of stock by the reforms, as are certain Member States, many of which use the argument that they are justified in breaking EU and international law because of the flaws in the system. See Belgium, for example, where the government is ignoring thousands of court judgments because in its view the EU’s asylum system is flawed (as though this were in any sense a credible justification).

In this context, there are risks attached to the fact that – unfortunately – not much is likely to change when the RAMM is adopted. There are measures in the RAMM that aim to ensure that take back transfers function, including extending deadlines and changing the process to one of notification rather than request. Under the complex off-set provisions, states also lose solidarity entitlements if they don’t accept returnees. The use of the border procedure in the accompanying Asylum Procedure Regulation is supposed to keep people at the external borders. Changes in the gathering of information by the EU’s databases, and notably their interoperability, may increase even further the use of take charge requests based on irregular entry. There will be greater punishment of applicants for onwards movement, such as changes in the recast Reception Conditions Directive which remove reception conditions from people in the “wrong” country.

On the other side, the measures proposed by the Commission to increase the use of the family unity clauses have been largely stripped out by the Council and may not make it into the final proposal.

It could be that the reforms serve to increase the transfer rates somewhat, however, ultimately, the interests and calculations of states will not change much because the rules are tweaked rather than fundamentally altered. Some predictions can be made. Onward movement will continue because the reasons for it will persist – the failure of and narrowness of family unity is a major factor; poor conditions and integration prospects in countries of arrival is another; weaknesses in asylum decision making and lack of access to a (fair) asylum procedure is another. Above all, states at the external borders will retain the perverse incentive to ignore EU law and to violate people’s rights in order to prevent people being transferred back – and to encourage them to leave in the first place.

As the inevitable problems persist, states will claim that the “broken system” justifies their violations, while at the same time they refuse to fundamentally fix the system.

And this takes us back to the state of the world. There will be a leap to claim that offering protection in Europe is not possible and the only option is to keep people out – violently if need be. First, protection in Europe can work – everybody has seen that with Ukraine. Second, even if Europe’s priority for crises from Syria to Gaza to Russia is to stop displaced people arriving, it is not possible – people are too desperate; in the absence of safe routes the business is lucrative; other states are not willing or able to do more. People will still arrive, many of them in need of protection. Collective response will be needed.

Thus, the Dublin dilemmas and dysfunctions will persist into the RAMM era. Prepare for legal challenges, efforts to get the family unity criteria respected, and advocating for the use of the discretionary clauses. The debate on the deeper reform that will ultimately be needed will return. It will still be necessary to get the rules on responsibility to support a system that generates some semblance of fairness for applicants and Member States alike – when not designed to do either.

Editorial:  Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)