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The European Union's Dublin Regulation and the Migrant

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The European Union's Dublin Regulation and the Migrant Washington University Global Studies Law Review Volume 19 Issue 2 2020 THE EUROPEAN UNION’S DUBLIN REGULATION AND THE MIGRANT CRISIS Kimara Davis Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Immigration Law Commons Recommended Citation Kimara Davis, THE EUROPEAN UNION’S DUBLIN REGULATION AND THE MIGRANT CRISIS, 19 WASH. U. GLOBAL STUD. L. REV. 259 (), https://openscholarship.wustl.edu/law_globalstudies/vol19/iss2/3 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. THE EUROPEAN UNION’S DUBLIN REGULATION AND THE MIGRANT CRISIS INTRODUCTION In 2015, over one million migrants1 arrived in the European Union (“EU”).2 Many of the migrants were fleeing war and persecution in Syria, Afghanistan, Eritrea and other countries in Africa and the Middle East.3 The majority of the migrants sought asylum in the EU, a haven where they believed they could find work and opportunities for a better life.4 The EU, however, was financially and administratively unprepared for the unprecedented influx of migrants because it was recovering from a financial crisis.5 The EU’s migration policy, embodied in its “Dublin Regulation III” (the “Dublin Regulation”), requires that migrants register and apply for asylum in the EU member state they enter first.6 7 Consequently, EU member states (“Member States”) closest in proximity 1 The term migrant refers to a person who moves from one place to another and includes both people who are seeking asylum and refugee status and people who are seeking new economic opportunities. The term asylum seeker refers only to the former of these two groups. See International Organization for Migration, Key Migration Terms, https://www.iom.int/key-migration-terms. 2 The European Commission, The EU and the Migration Crisis, (July 2017), http://publications.europa.eu/webpub/com/factsheets/migration-crisis/en/. Trafficking from Turkey to the Greek islands of Kos, Chios, Lesvos and Samos account for a large portion of this figure. See infra note 133. 3 The European Commission, supra note 2. See also Migrant Crisis: Migration to Europe Explained in Seven Charts, BBC NEWS (Mar. 4, 2016), https://www.bbc.com/news/world-europe- 34131911. Large numbers of migrants also came from Kosovo, Albania, Iraq, and Pakistan. Id. 4 The European Commission, supra note 2. Before Europe’s migration crisis, migrants sought asylum in nearby non-EU countries such as Jordan, Lebanon, and Turkey. King’s College London, Why Do Refugees and Migrants Come To Europe, and What Must Be Done to Ease the Crisis?, THE TELEGRAPH (Sept. 4, 2015), https://www.telegraph.co.uk/news/worldnews/europe/11845205/Why-do- refugees-and-migrants-come-to-Europe-and-what-must-be-done-to-ease-the-crisis.html. However, these Middle Eastern countries soon reached a point where they could no longer support the growing number of migrants with basic services like food and shelter. Id. Migrants have thus decided to move on to countries with more resources, like the UK, which at the time had a per capita eight times that of Jordan and similarly situated countries. Id. The UK also had just under 200,000 refugees, less than a quarter of the one million refugees in countries like Jordan. Id. In addition, wealthier Middle Eastern countries including Saudi Arabia, have shown an unwillingness to accept more refugees. Id. See also Matthew Weaver, Syrian Refugees: More Than 5m in Neighbouring Countries Now, Says UN, GUARDIAN (Mar. 30, 2017), https://www.theguardian.com/world/2017/mar/30/syrian-refugee-number- passes-5m-mark-un-reveals (describing the situation in Middle Eastern countries prior to the crisis in Europe). 5 Mark Koba, ‘A Cheat Sheet’ on the Europe Crisis, CNBC (June 13, 2012), http://archive.is/bMQ4. The EU suffered from a financial crisis beginning in 2009, which raged on as migrants began to flood into the EU. Countries like Greece and Spain were in billions of dollars of debt and banks throughout the union were failing. Id. 6 See infra notes 10-13. 7 Member states of the European Union must agree to the founding treaties of the EU and are bound by the EU’s laws and regulations. In return, member states are given representation in the EU legislature and judiciary. See Countries, EUROPEAN UNION, https://europa.eu/european-union/about- 259 Washington University Open Scholarship 260 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 19:259 to Africa and the Middle East were placed under considerable economic strain during the influx.8 As a result, the Dublin Regulation and its efficiency has been called into serious question.9 Three years after the initial spike in migration, the migration numbers have fallen dramatically because the EU and other member states took a number of actions in attempts to quell the number of entering migrants, including the controversial building of border fences.10 Nevertheless, many of the issues underlying the Dublin Regulation, such as the disproportionate strain placed on certain countries and the violation of the human rights of asylum seekers, still exist. Leaders and scholars alike continue to call for its reformation or complete overhaul.11 eu/countries_en (last visited Feb. 24, 2020); How EU decisions are made, EUROPEAN UNION, https://europa.eu/european-union/eu-law/decision-making/procedures_en (last visited Feb. 24, 2020); EU courts, EUROPEAN E-JUSTICE, https://e-justice.europa.eu/content_eu_courts-15-en.do (last visited Feb. 24, 2020). 8 See Park, infra note 65, at 4. 9 See Regulation 604/2013, 2013 O.J. (L 180) 31 available at https://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF. The migration crisis in Europe tested the limits of the current legislation, forcing the EU to brainstorm how to reform it once more. The European Commission proposed a Dublin IV Regulation in 2016, which would promote burden sharing by a “corrective allocation mechanism in cases of disproportionate pressure”, punish asylum shopping and other abuses of the asylum system, and further take into account the best interests of migrants. Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person (recast), at 18, COM (2016) 270 final (May 4, 2016). 10 Jon Henley, What is the Current State of the Migration Crisis in Europe?, GUARDIAN (June 15, 2018), https://www.theguardian.com/world/2018/jun/15/what-current-scale-migration-crisis- europe-future-outlook. See infra note 137. European governments made deportation agreements with non-EU countries that helped quell the migration flows into the EU. Patrick Kingsley, Migration to Europe Is Down Sharply. So Is It Still a ‘Crisis’?, N.Y. TIMES (June 27, 2018), https://www.nytimes.com/interactive/2018/06/27/world/europe/europe-migrant-crisis-change.html. Turkey agreed to take back migrants who illegally enter the EU in exchange for almost seven billion euros in aid, visa free travel within the EU for Turkish citizens, and reopening of negotiations with Turkey on EU membership. James Kanter, European Union Reaches Deal With Turkey to Return New Asylum Seekers, N.Y. TIMES (Mar. 8, 2016), https://www.nytimes.com/2016/03/19/world/europe/european-union-turkey-refugees-migrants.html. After the agreement was made effective, migrant arrivals to Greece from Turkey dropped a drastic ninety-seven percent by 2018. European Commission, EU-Turkey Statement - Two Years On, at 1 (Apr. 2018), https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european- agenda-migration/20171207_eu_turkey_statement_en.pdf. Similar deals have been made with Niger and Sudan. Adam Nossiter, At French Outpost in African Migrant Hub, Asylum for a Select Few, N.Y. TIMES (Feb. 25, 2018), https://www.nytimes.com/2018/02/25/world/africa/france-africa-migrants- asylum-niger.html; Patrick Kingsley, By Stifling Migration, Sudan’s Feared Secret Police Aid Europe, N.Y. TIMES (Apr. 22, 2018), https://www.nytimes.com/2018/04/22/world/africa/migration-european- union-sudan.html. 11 European Parliament, EU Asylum Reform: Parliament’s Stance on Dublin Regulation (June 6, 2018), http://www.europarl.europa.eu/news/en/headlines/world/20180615STO05927/eu-asylum- https://openscholarship.wustl.edu/law_globalstudies/vol19/iss2/3 2020] A STATUTORY SOLUTION TO A CONSTITUTIONAL PROBLEM 261 The Dublin Regulation designates which EU member state is responsible for reviewing and processing an asylum application.12 It states in relevant part, “Member States shall examine any application for international protection by a third-country national or a stateless person . The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.”13 Further, “[w]here no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.”14 The latter is usually the case for asylum seekers because asylum authorities do not give preference to family unity over criteria involving an asylum seeker’s documentation or country of entry as intended by the Dublin Regulation.15 Thus the “first Member State in which the application for international protection was lodged,” also known as the state of first entry, is usually the responsible member state.16 If all the member states had a proportionate amount of asylum seekers entering their borders to the member state’s resources and size, the “state of first entry” rule would be an efficient means to balancing out responsibility for asylum applications amongst the member states.
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