'Dublin: too much politics, not enough law-making?' by Tom Freely

In elections across the EU, migration policy dominates the agenda and suggested responses to migration have been attributed to political parties’ electoral success or failure. At the centre of these highly political discussions is an EU legislative framework known as the CEAS (Common European Asylum System) and at the centre of that is the Dublin regulation.

The “Dublin” Regulation or to call it by its real name “the Regulation 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” does what it says on the tin, it decides which EU member state is responsible for examining an asylum application made in the EU. The Dublin regulation and its Dublin Convention predecessor were put in place to compliment the EU’s borderless Schengen area. In theory, if there are no intra-EU borders, asylum applicants arriving in the EU could decide themselves where to apply for asylum and if an asylum application fails in one member state they could apply again in another member state – the Dublin system was meant to prevent this by making the member state of arrival responsible for an application by default and if an asylum seeker tried to apply for asylum in another member state they would be returned (in theory) to the member state of arrival.

The Dublin system pitched southern member states against northern member states since the southern member states were generally the member states of arrival so were expected to process the bulk of asylum applications. In reality, arrivals were not being registered properly at the southern borders and asylum applicants were making their own way north to make their first country of arrival asylum application. The Dublin system was broken and asylum seekers had almost a free choice about where to apply for asylum, which mitigated the resentment of the southern member states that they had to do all the asylum application processing.

The unprecedented numbers of arrivals in 2015 revealed how broken the EU common asylum system and Dublin really was and it became very clear that the current regulatory framework was not up to the job. The European Commission put temporary measures in place to try to remedy the situation and in parallel they proposed new, overhauled texts on all of the legislation making up the CEAS including a new Dublin proposal. The start of the Juncker Commission was characterised by its lack of new legislative proposals and a concerted effort to withdraw obsolete, unused and outdated legislation but the raft of migration related legislation meant the EU’s law making machine was back in business.

The Commission’s new Dublin text included a responsibility sharing mechanism to relocate asylum applicants from the member state of arrival to other EU member states once a threshold was reached. The EU Council Presidencies from the Netherlands, Estonia, Malta and Bulgaria all tried to get a council position agreed upon and the European Parliament (EP) did the same under the leadership of the Rapporteur, Liberal MEP Cecilia Wikström. There was consensus that the current Dublin rules were not working but the tricky task of adopting a new law that changed those rules proved to be a difficult one.

Within the EU ordinary legislative procedure, the European Parliament is caricatured as being ‘unrealistic’ and too focused on politics compared with the ‘sensible’ civil servants who do the bulk of the negotiating on behalf of the Council. In the case of the reform of the Dublin regulation, the European Parliament’s expertise when it comes to dealing with politics proved indispensable. After a record number of meetings, an agreement was adopted by a large majority of the Parliament’s plenary on a revised Dublin proposal and a mandate to negotiate with the Council. The EP position brings together the need for a common European system as a consequence of borderless Schengen with the need to share the responsibility between member states. In Council, however, work progressed at the technical, expert level but there is still no final Council text agreed so negotiations with the EP cannot start and the EU law-making machine has ground to a halt. It appears the sensible civil servants of the Council are unable to overcome the political hurdles that pitch north against south.

What happens next? The number of asylum seekers arriving in the EU has fallen but the much-needed revised legal framework for a common European asylum system is still not in place. The EP has made it clear that it is ready to negotiate with the Council but with less than a year to the European elections it looks unlikely that Council will agree on a text that would allow them to negotiate with the EP. It appears that, right now, Dublin is proving too political for the law making process.

By Tom Feeley, ALDE Group, Political Advisor to the LIBE Committee