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The Dublin Regulation

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The Dublin Regulation 1 The Dublin Regulation → Analysis of the Dublin System, perceived to cause a disproportionate burden to the expense of the external border countries of the EU and the reason for its continuous implementation despite persisting criticism Author: Laura Helena R. Suy Thesis Supervisor: Bjørn Møller Global Refugee Studies Aalborg Universitet København (AAU-Cph) 10th Semester, Master Thesis Spring 2014 2 List of Contents Acknowledgments ...................................................................................................................................... 3 Abbreviation List ....................................................................................................................................... 4 Abstract ...................................................................................................................................................... 5 Introduction ............................................................................................................................................... 6 Methodology & Limitations .................................................................................................................... 8 Chapter 1: History & Content of the Dublin System .............................................................................. 9 1.1. The Dublin System: Content ............................................................................................................. 9 1.1.1. The Dublin Convention (1990/1997) ...................................................................................... 9 1.1.2. The Dublin II Regulation (2003/2004) ................................................................................. 10 1.1.3. Goals of the Dublin System .................................................................................................. 11 1.2. The Dublin System: History & Evolution ...................................................................................... 12 Chapter 2: The Roots of Burden-Sharing Difficulties in linkage with Dublin .................................... 17 2.1. Burden-sharing as part of the Refugee Protection Regime ............................................................. 17 Chapter 3: The Implementation Process of the Dublin System ........................................................... 26 3.1. Limitations ...................................................................................................................................... 27 3.2. The EU decision-making process .................................................................................................... 27 3.3. Analysis .......................................................................................................................................... 31 3.3.1. Theoretical Framework ......................................................................................................... 31 3.3.2. The Dublin Convention: Analysis ........................................................................................ 32 3.3.3. The Dublin II Regulation: Analysis ...................................................................................... 35 3.3.4. The Dublin III Regulation (recast): Analysis ....................................................................... 58 Discussion ....................................................................................................................................... 76 Conclusion ...................................................................................................................................... 84 Appendix .......................................................................................................................................... 85 Annex ............................................................................................................................................... 86 Bibliography ................................................................................................................................... 89 3 Acknowledgments -Denmark- First of all, I would like to thank my supervisor Bjorn Møller, who has guided me in the right direction and has provided me with valuable insights that have ultimately defined the nature of this project. I would also like to thank the professors and staff of Global Refugee Studies at Aalborg University Copenhagen for creating such an interesting programme in a friendly, professional and pleasant environment. Furthermore, I want to thank Irina, Hege, Serena, Nash, Salomé, Giulia and my other classmates and friends who have functioned as my family during my time in Copenhagen and will always be right here with me, despite being far away from each other now. -België- Bedankt aan mijn beste vrienden Griet, Kelly, Stijn, Anouk en Eline: voor jullie geduld, humor en geregelde berichten, bezoekjes en telefoontjes die me er tijdens de moeilijkste blokkades hebben doorgeholpen. Ik draag mijn thesis ten slotte op aan mijn oma en opa, mijn zus en mijn mama en papa. Bedankt, want zonder jullie steun, aanmoedigingen en liefde had ik dit nooit kunnen bereiken. 4 Abbreviation List CEAS – Common European Asylum System CJEU – Court of Justice of the European Union CRIS-MAP - Crisis Management Action Plan (phase three of the early warning mechanism) DP Home Affairs - Department of Home Affairs of the European Commission DR – Dublin Regulation DR III – Dublin III Regulation EASO - European Asylum Support Office EBC – External Border Countries EC – European Commission ECRE – The European Council on Refugees and Exiles ECHR - the European Court of Human rights EDAL – European Database of Asylum Law EP – European Parliament EU – the European Union EU MS – Member states of the European Union HRW – Human Rights Watch IOM – International Organization for Migration JHA – Justice and Home Affairs LI – Liberal intergovernmentalism PAP – Preventive Action Plan PD – The Prisoners’ Dilemma RSD - refugee status determination SIA - the Schengen Implementing Agreement SCO – Safe Country of Origin UDHR - Universal Declaration of Human Rights UN – The United Nations UNHCR – the United Nations High Commissioner for Refugees 5 Abstract The need for collective action between the EU member states in the area of asylum, against the background of European integration and given the current refugee patterns, has proven to be necessary in order to effectively enhance refugee protection in the European Union, to sustain national security and to maintain the freedom of movement. Within this, the Dublin Regulation plays a vital role as the distribution mechanism of asylum requests filed in the EU. Dublin carries out a number of provisions, of which the ‘principle of the first’ is the most predominant, meaning that the first country through which an asylum seeker enters the EU is also the state responsible for the handling of the subsequent asylum request. It specifically aims at providing a fair access to the asylum procedure, whilst at the same time preventing asylum seekers into applying for asylum simultaneously in more than one EU member state. The regulation is controversial however, as it allegedly not reaches it goals, as well as causing a disproportionate asylum burden on those states located at the external borders of the EU. Countries such as Greece and Bulgaria have seen their asylum systems collapse due to their incapacity to properly address the influx enhanced by Dublin leading to, amongst others, the risk of refoulement. The analysis explores whether or not Dublin enhances an imbalanced burden-sharing to the expense of the external border countries, and seeks to explain why those states disadvantaged by the regulation have still agreed on its implementation. The analysis addresses this from several points of view corresponding to a broad theoretical framework entailing neo-functionalism, liberal intergouvernmentalism and constructivism. The paper offers an insight into the negotiation process of Dublin, the circumstances under which it was created and why alternatives to the regulation have, until now, been left aside. Based on the research results, it can be stated that the Dublin Regulation is fundamentally flawed due to the inability of defining and carrying out burden-sharing as an consistent element of the refugee protection regime. A distribution mechanism was necessary though, and its continuous implementation despite its deficiencies is arguably the result of the superior negotiation and bargaining power of certain member states, which are perceived not to suffer under the distribution effects of Dublin. 6 Introduction In correspondence to the freedom of movement and the abolishment of the internal borders of the EU, the Dublin Regulation was created, a mechanism determining the responsible member state regarding the handling of asylum requests within the EU. Dublin aims at preventing refugees from being subjected to the risk of refoulement, as well tackling asylum system abuses. That said the implementation of Dublin is controversial and has not been without its problems: Dublin determines that the member state of first entry is predominantly responsible for the processing of the subsequent asylum request. This principle has assumedly resulted into a number of external border countries no longer being capable of properly addressing the influx, resulting into an increased risk of refoulement, a lack of humane reception conditions and consequently, into the collapse of the Greek and Bulgarian asylum systems
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