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The EU Dublin system and further EU asylum law

Prof. Christa Tobler explains the EU Dublin system of the EU with its rules of asylum as it evolved over time.
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Let us now address the EU rules on asylum. This is a complex area that has evolved over time. In 1999, at a meeting held at the Finnish place of Tampere, the EU Member States agreed to work towards establishing a common European asylum system — CEAS — that goes beyond the Dublin rules. Today, Art. 78(1) TFEU provides
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as follows: ‘The Union shall develop a common policy on asylum, subsidiary protection, and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of the 28 of July 1951 and the Protocol of the 31 January 1967 relating to status of refugees, and other relevant treaties.’ What then is the relevant EU law today? First, there is the so-called Dublin acquis. Since the rules of the Dublin convention were incorporated into union law, they have been revised repeatedly. In fact, there is now already to third Dublin Regulation, namely Regulation 604/2013.
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The Dublin III Regulation is complemented by additional rules, in particular, concerning the identification of asylum applicants through fingerprinting. Where do these rules apply? First, note that based on a special Protocol, the Dublin III Regulation does not apply in Denmark. Conversely, it does apply in the four EFTA States that are associated to the Dublin system — among them also Switzerland. In contrast, the system does not include other countries that may be on the route of refugees into the European Union, for example, Turkey or Macedonia. In terms of content, the main thrust of the EU’s Dublin system is that in each asylum case only one Member State is responsible of the procedure, in order to prevent multiple procedures on the same case.
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The European Commission describes this in the following
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manner: ‘The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered the EU irregularly, or regularly.’ In the case of irregular entry, the state of first entry is in charge of the asylum procedure. Member States where migrants travel there after are entitled to send the migrants back to the first state. According to the Dublin III Regulation, all EU Member States are to be considered safe countries for these purposes. This implies that the non-refoulement principle is not breached where a person is sent back to another Member State.
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Under the rules of Directive 2013/32, the Member States are entitled to designate further states as safe countries under the conditions as set out in the directive. In practice, the focus on the state of first entry has led to difficulties. Some countries feel overwhelmed by the number of asylum procedures they are responsible for and, understandably, demand a better distribution of the work to be done. Not least, it is in the interest of asylum seekers that their applications are treated rapidly. Accordingly, something must be done where states reach the limits in the infrastructure that is required in order to host asylum seekers and to process asylum applications.
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So far, the European Union has struggled to set up a system on redistribution of migrants between the Member States. The European Commission’s proposals on this issue have met with the resistance of certain EU Member States. Other Member States are now considering moving ahead in a coalition of the willing. It may be interesting to note that in Switzerland refugees have been distributed among the cantons based on the size of their population for more than 20 years. The cantons, in this context, receive money from the federation, though this does not cover the full cost, especially in the long run.
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As for the European Union, it has moved beyond the original mere Dublin law, and has adopted additional legislation in the field of asylum. It should be noted that this part of EU asylum law has not been extended to Switzerland. Therefore, the Swiss EU Dublin agreement does not include such matters. This additional asylum legislation
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of the European Union concerns the following matters: the asylum procedure, the reception conditions, the qualification as beneficiary of international protection, and temporary protection. As you can see, this legislation is not limited to refugees, but more generally concerns persons seeking international protection, persons eligible for subsidiary protection, and temporary protection. What do these terms mean? As for the term refugee, Directive 2011/95 reiterates the definition in the Geneva Convention. Persons eligible for ‘subsidiary protection’ may not fall under the refugee protection enshrined in the Geneva Convention, but would face real risk of serious harm if returned to their country of origin.
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Finally, ‘temporary protection’ applies exceptionally in the event of mass influx or imminent mass influx of displaced persons who are unable to return to their country of origin. For all these categories, EU law describes the conditions for entry and resident’s rights. However, it needs to be added that in spite of the common legislation, much depends on the individual countries practice. For example, it is well known that the same group of people, such as asylum seekers from a given country with unrest or civil war, have varying chances of being accepted as refugees in different EU Member States.
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This is one of the reasons why asylum seekers may not be willing to stay in their country of first arrival, but wish to move on elsewhere.

The EU is developing a Common European Asylum System.

Asylum law was originally not a field for European integration. However, at some point the European Union (EU) began with the building of what is called the Common European Asylum System (CEAS). The system aims to offer appropriate status to any third-country national requiring international protection. So far, the system is not encompassing, ie certain issues are left to the Member States. In addition, not every EU Member State participates in the system. Conversely, Switzerland as a non-Member State is associated to a particular sub-part of the EU asylum system, namely the so-called Dublin law. The Union’s Dublin law is currently under revision. Notably, there is a proposal for a so-called ‘Dublin IV Regulation’.

After having watched this video, you may want to reflect on whether you have understood the difference between the three legal categories that we mentioned.

We advise you to first go through the two PDFs (‘list of matters’ and ‘definition of refugee’) that you can find under ‘downloads’. Then consider the individual situation of migrants from certain, specific countries and their chances, given the situation in their country or place of origin today, for benefiting from entry and residence rights under either of these categories.

So: imagine you are a migrant from a certain, specific country. What is your chance to benefit from entry and residence rights under these categories?

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This content is taken from University of Basel online course
Switzerland in Europe: Money, Migration and Other Difficult Matters
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