CEAS reform: State of play of negotiations on the Dublin IV Regulation

The proposal for a Dublin IV Regulation constitutes the central feature of the European Commission’s package of legislative proposals for the reform of the Common European Asylum System (CEAS) tabled in 2016. While the European Parliament has recently adopted its position on the file, the Council remains at a stage of informal, bilateral consultations between Member States with a view to agreeing on a common vision of responsibility and solidarity in the Dublin system.

The following summary outlines the key elements of the Council discussions and the European Parliament position.

 

The negotiations within the Council

Following on from informal papers shared by its two predecessors, the Slovak and Maltese Presidencies, the Estonian Presidency of the Council presented on 29 November 2017 the outcome of its bilateral discussions with Member State delegations on the effective application of the principles of solidarity and responsibility.

The Estonian non-paper notes that the “practicalities of the measures and overall system [proposed] are too abstract”, thereby requiring resumption of technical-level discussions between delegations to “better understand how to incorporate these measures in the Dublin Regulation. Discussions at the technical level in the Council have been suspended for more than a year now pending political agreement on the solidarity component of the Commission proposal for a Dublin IV Regulation. Some of the points identified as a possible compromise include the following:

 

Three-phase Dublin system

The Estonian Presidency distinguishes between preventive measures, measures reacting to particular pressure, and measures tackling the crisis consequences:

  1. “Normal circumstances”: The current responsibility criteria would remain applicable and the situation of the asylum system would be monitored under existing or prospective tools (including Schengen Evaluation Mechanism, the European Border and Coast Guard and the future EU Asylum Agency), while specific support would be available to Member States if necessary.

  2. “Challenging circumstances”: When a Member State reaches 90% of its share – using the Commission proposal reference key – strengthened support may be triggered, following an assessment by the Commission. At that point, measures could include emergency funding, technical assistance, joint operations under the EU Asylum Agency or the European Border and Coast Guard, as well as relocation on a voluntary basis following an invitation by the Commission. If the situation deteriorates, a Council Implementing Decision should be adopted in order to enter into force when a Member State reaches 150% of its share. Adoption will be done by reverse Qualified Majority Voting – i.e. unless a qualified majority of Member States oppose it – in case the Council Decision is not adopted by the time a Member State reaches the 150% threshold. The Decision would include similar measures to those outlined above, but include precise specifications on the way in which other countries will contribute. There would be a relocation cap of 200,000 persons for a two-year period.

  3. “Severe crisis circumstances”: When a Member State still faces “extreme pressure” despite measures taken, and when the aforementioned relocation cap has been reached, the European Council would intervene. The European Council would determine the need for further measures to be adopted, which could include additional relocation. At the same time, “flexible legal tools, based on enhanced cooperation with third countries” would be developed to ensure significant and sustainable reduction in the number of irregular arrivals to the EU.

Irrespective of the phase in which the European Union is in, the Estonian Presidency describes a set of measures (“general principles”) which according to delegations in the Council should generally be secured in the reform of the Dublin system. These include inter alia the following:

 

Scope of relocation

Any relocation process should not be applicable to asylum seekers whose applications are “considered likely to be manifestly unfounded or inadmissible”. Examples of such applicants include those: (1) coming from a safe country of origin included in an EU list; (2) coming from a safe third country included in an EU list; or (3) coming from a third country with a low EU-wide recognition rate.

 

Procedures in the country of first entry

In all of the aforementioned phases, the country of first entry would remain responsible for all asylum seekers falling outside of the scope of relocation as described above. The Estonian Presidency non-paper stresses that “persons very likely not in need of international protection or with inadmissible claims” should be quickly returned. It notes that “the EU Asylum Agency should have an increased role in preparation of the return decisions”, while the Member State of first entry should take measures for (1) “prevention of possibilities to abscond” and (2) conducting a rapid screening of nationality and admissibility, as well as a prima facie assessment of the merits of the claim.

 

Stable responsibility

Contrary to the current time limits applicable in the Dublin III Regulation, a Member State would remain responsible for an asylum seeker for a 10-year period, with the exception of persons returned to a third country or granted a residence permit in another Member State.

 

The European Parliament has expressed concern on the distance between the Council discussions and its own position on the proposal. The Dublin IV rapporteur, Cecilia Wikström, noted that “[i]f the Council were to agree on such a position it would make negotiations between the co-legislators very difficult.”

 

The European Parliament report

The European Parliament has already adopted its position (“report”) on the Commission proposal in plenary earlier in November 2017. The report aims at a substantial revision of the Dublin system which would introduce the following main changes to the Dublin procedure:

 

Criteria and procedures

The Parliament has made deep changes to the hierarchy of responsibility criteria by: (1) introducing academic and professional qualifications as relevant criteria; (2) deleting irregular entry, visa waived entry and applications at airports and transit zones; and (3) introducing an allocation mechanism between Member States as the fall-back criterion in the Regulation.

Contrary to both the Commission proposal and the discussions in the Council, the European Parliament incorporates fair allocation of asylum seekers as a core component of the Dublin system, without distinguishing between different phases in its operation.

The allocation mechanism maintains the Commission proposal’s reference keys and establishes a process whereby the applicant is given 5 days to choose one of the ‘bottom four’ Member States i.e. those with the lowest number of asylum seekers, in case none of the preceding Dublin criteria (family provisions, residence permits, sponsorship, diploma’s etc.) If no choice is made, the applicant is transferred to the Member State with the lowest number of applicants.

The Parliament report also suggests light-touch procedures for family reunification and for residence documents / visas and academic / professional qualifications, whereby a transfer occurs on the basis of “sufficient indications”. In such a case, the Member State where a person is transferred conducts an in-depth assessment of the criteria and, if they are found not to be applicable, random allocation ensues.

 

Discretionary clauses

The discretionary clauses are brought back to their original scope under Article 17 of the Dublin III Regulation, rather than the narrow remit given to them by the Commission proposal. Under the Parliament report, an asylum seeker also has the right to request the activation of the discretionary clauses, either to remain in the Member State where he or she has applied by virtue of the “sovereignty clause”, or to be transferred to another country by virtue of the “humanitarian clause”. In case the requested Member State does not respond within 2 weeks, the request is to be considered rejected.

 

Scope of the Regulation

The Parliament position excludes from the Dublin system two categories of applicants.

  1. Asylum seekers who present a threat to public order or national security are always excluded from the responsibility-allocation process and must have their claim examined in the Member State of entry.

  2. Asylum seekers who (1) do not fall within the family unity or dependency provisions, (2) are not in need of special procedural guarantees, and (3) have prima facie only raised only issues irrelevant to international protection and clearly unconvincing claims, are also excluded.

 

Human rights test for suspension of transfers

The Parliament removes the narrow test for suspending a Dublin transfer under Article 3(2) of the current Regulation, which refers to “systemic flaws” raising a risk of inhuman or degrading treatment under Article 4 of the EU Charter. Instead, the report refers to the test of a real risk of violation of fundamental rights, as confirmed by the European Court of Human Rights and more recently the Court of Justice of the European Union. This will clarify that (1) systemic deficiencies are not a requisite condition for opposing a transfer and that (2) transfers may be unlawful when violations of rights other than Article 4 of the Charter are likely.

 

Appeals

The deadline for appealing a Dublin decision must be “reasonable” and is set at a minimum of 15 days. An appeal can be filed without scope limitation, and may include cases where the applicant has not been transferred to the Member State responsible.

 

Sanctions

  • On applicants: The Parliament has deleted the (1) mandatory accelerated procedure and (2) exclusion from reception conditions set out by the Commission proposal as sanctions on secondary movement. However, it has also deleted the provision requiring Member States to treat a previously discontinued application as a first application. Applicants engaging in secondary movements will be subject to further allocation to one of bottom four Member States without having the benefit of “limited choice” between four countries.

  • On Member States: (1) Where a Member State systematically refuses to register asylum seekers and has declined assistance from the EU Agency for Asylum, following a monitoring process, a Council Decision can suspend the allocation mechanism for that country. (2) Where a Member State refuses to accept asylum seekers in the allocation process, it will face financial sanctions e.g. prohibition to use Asylum, Migration and Integration Fund (AMIF) funds for return.

 

Time limits

The deadline for submitting a “take charge” request is set at 3 months, or 1 month in case of Visa Information System (VIS) or Eurodac hits. In cases of unaccompanied children, the time limits run from the moment of appointment of the guardian and best interests assessment. The deadline for a “take back” notification is 1 month.

 

Unaccompanied children

Unaccompanied children are to be appointed a guardian no later than 24 hours after making an application. Their and their guardian’s right to be heard in the best interests assessment is expressly provided. The report also stresses that transfers of unaccompanied children must always be preceded by individual guarantees from the receiving Member State, confirming that it will fulfil its specific obligations – including the appointment of a guardian before the transfer takes place.

The Parliament also modifies the treatment of unaccompanied children with no family member or relative, currently governed by Article 8(4) of the Dublin III Regulation as interpreted by the Court of Justice of the European Union. In cases where an unaccompanied child has no family members or relatives, and where no other criteria apply, he or she will be subject to the allocation mechanism.

 

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