Germany more humanely agreed to process the asylum claims of those who reached its borders. What would happen to a refugee who – having made his way through Central Europe, defied the armed guards at Calais and reached Britain – applied for asylum in our country? Although we might expect that, as in Germany, their claim would be processed here, this would not be the approach taken by the Home Office. When dealing with asylum seekers from outside the EU, Home Office officials are still insisting that the Dublin III regulation – which requires migrants’ asylum claims to be processed in the first EU country they arrive in – is enforced.

Background

This EU law has evolved out of the Dublin Convention 1990, part of the package of measures that went with the Schengen Convention, which removed internal borders for most states within the then European Community. The aim of the original Dublin Convention was to prevent asylum seekers going in for “asylum shopping” around EU member states by making multiple asylum claims in different places and searching for the state that had the most accessible procedures or favourable conditions for their plight. The UK only signed up to the Convention in 1997. In 2003, it was replaced by the Dublin II Regulation, which was joined by all EU member states (except Denmark, who signed up to it via a bi-lateral agreement; the non-EU states Norway, Iceland and Luxembourg also signed up to the regulation in due course). Dublin II essentially clarified the criteria for determining which state was responsible for processing which claims under the Dublin Convention. It was accompanied by the EURODAC Regulation, which established a database for recording the fingerprints of asylum applicants.

What Dublin II also did was to introduce a hierarchy of criteria for determining which member state should be responsible for an asylum claim. It prioritised family unity and the welfare of unaccompanied minors. So if an asylum seeker has a family member who has asylum status in an EU member state or has a current application for asylum in that member state, then the asylum seeker will have his claim dealt with in that member state. Similarly if an unaccompanied minor has family in another member state, then his claim will be transferred to that member state accordingly, providing it is in his best interests. In cases where asylum seekers have been granted a residence permit or a visa in a member state, they will in turn have their claims processed in that member state unless they have family members elsewhere. Asylum seekers who enter the EU illegally will have their asylum claims dealt with by the first member state they arrived in (unless they have family members with asylum status or claims in another member state). Finally, those asylum seekers to whom none of the above criteria apply will have their claim dealt with in the member state where they first made their asylum claim.

Dublin III

The main criticism of the Dublin II regulation was that it created a system that enabled the richer Northern member states to transfer their asylum processing responsibilities to poorer Southern and Eastern states, which lack the necessary resources and infrastructure to deal with excessive asylum claims. It also raised concerns about its ability to protect vulnerable claimants. So, in 2013, the Dublin III Regulation was brought in.

Dublin III introduced the need for tight timescales within which the member state requesting the transfer must make that request. It introduced the need to consider the best interests of children, as well as domestic remedies in the event of a breach of the regulations. It also re-set the test for detention so that it can only be used if there is a serious risk an asylum claimant will abscond. However research suggests that detention is used in 40 per cent of cases. And in the UK, most asylum claimants who are subject to Dublin regulation transfers are held in detention before being moved, regardless of the new test.

Article 3 in the courts

The Dublin regulations recognise that it is the responsibility of the member state transferring an asylum seeker to another member state to ensure that asylum seekers’ human rights are fully adhered to at their destination. And this is proving to be a highly contentious area in the courts.

Many of the key decisions have involved alleged breaches of Article 3 (prohibition of inhuman or degrading treatments) of the European Convention of Human Rights. However, domestic courts are reluctant to find that fellow member states would allow an asylum seeker to be subjected to inhuman or degrading treatment. In our domestic courts, there is an evidential presumption that member states will comply with their ECHR obligations in relation to asylum claimants. However, in EM and Eritrea and Others (2014 UKSC 12), Lord Kerr found that courts were under an obligation to consider whether there was a real risk of the minimum level of severity of Article 3 being breached, and that in order to decide this, a full evidential exploration of such a risk needed to be made.

In MSS v Belgium and Greece (2011), the European Court of Human Rights found that Belgium had violated Article 3 in assuming that the applicant (an Afghan national) would be treated in conformity to Convention standards on being returned to Greece, and failing to verify how the Greek Authorities applied their legislation in practice. In Tarakhel v Switzerland (2014), the ECHR held that there would be a violation of Article 3 if the Swiss authorities were to send an Afghan family back to Italy under the Dublin regulation without first obtaining individual guarantees that included detailed information from the Italian authorities that the family would be kept together and that they would be accommodated in a manner adapted to the age of the children. However in the recent case of AS v Switzerland (2015), the ECHR found that if a Syrian national of Kurdish origin were returned to Italy, there would be no violation of Article 3.

That the ECHR should make such a ruling seems particular concerning, in light of the body of growing evidence that Italy’s infrastructure is overwhelmed by the sheer number of migrants arriving there, as well as by people trafficking. As Janet Daley pointed out in a recent article in the Daily Telegraph: “....here we are – with a flourishing network of mobsters, smugglers and armed gangs trafficking, not drugs, alcohol or weapons, but human beings. The mayor of Palermo, Leoluca Orlando, once said to have broken the grip of the Cosa Nostra in his city, suggests that the crisis has allowed a renewed mafia presence to establish itself in Southern Italy, which is now running the illegal migration racket with its usual techniques of threats, bribery and violence.”

The MSS case has put an end to Dublin returns to Greece, but the home office continues to request Dublin regulation returns to all other nations, including Italy, Hungary and Bulgaria. As can be seen from the news, Hungary has responded to its refugee crisis with the use of tear gas, the construction of a barbed wire fence on its border with Serbia, and anti-immigrant far right-rhetoric from President Orban. Hungary attempted to suspend Dublin III in June 2015, but soon reinstated it due to pressure from Brussels. In January 2014, the UNHCR requested that all Dublin returns to Bulgaria be suspended due to there being a real risk of an asylum claimant suffering from inhuman or degrading treatment by virtue of the state’s asylum procedures and reception conditions, along with the excessive and unlawful use of detention. (Although the UNHCR have reviewed their position on all Dublin transfers, they still raise significant concerns about unaccompanied minors and vulnerable asylum claimants, as well as about the reception conditions there).

Dublin system under fire

Before the escalation of the refugee crisis this year, criticisms were being levelled at the Dublin system in that, in spite of the hierarchy of criteria, there was evidence it was routinely disrupting family unity, that it was failing to protect vulnerable individuals or unaccompanied minors and that many asylum claimants were both unnecessarily and unlawfully detained. It is expensive due to the costs of travel as well as detention. There is also the criticism that the wealthy Northern European states use the Dublin system to transfer the burden of asylum claims to the Eastern and Southern European States, whose economies, infrastructures and cultures are least able or suited to maintain Convention complaint asylum procedures.

In the wake of the Syrian refugee crisis this year, Germany has now suspended all Dublin regulation transfers for Syrians. Commentators such as Peter Sutherland, the UN special representative for international migration, has stated that the Dublin system is dead. Recently, more than 300 retired judges and legal professionals, including Lord Phillips (former UK Supreme Court head) and Sir Nicolas Bratza (former President of the ECHR) signed an open letter in The Times and the Guardian, requesting that the Government do more to assist with the refugee crisis, including a suspension of the Dublin system. Yet the United Kingdom continues to adhere to the Dublin system to the letter. Perhaps that’s not surprising given the current Government’s rhetoric on how high immigration makes a cohesive society impossible. As much as this little England approach to pulling up the drawbridge across the channel may appeal to the Tory defectors to UKIP, it is hard for most of us to ignore there is a refugee crisis going on, and hard for us to forget the image of a drowned Syrian child in a Turkish policeman’s arms. What is needed is a cohesive asylum strategy between member states that is underpinned by a collective responsibility and ensures that asylum claimants’ Convention rights are properly adhered to. The Dublin system, which insists on continual transferring of responsibility, will only sever relationships between member states, with the ultimate victims being the asylum claimants themselves.

Contributor Chris McWatters