Dismantling Dublin, Restoring Borders: The Mobility of Asylum Seekers after the Refugee Crisis

#escapes2020 online – 26 giugno 2020
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Dismantling Dublin, Restoring Borders: The Mobility of Asylum Seekers after the Refugee Crisis

Irene Serangeli, PhD Student, School of International Studies, University of Trento

Twenty years ago, the British House of Lords was called to examine the legitimacy of the Dublin System1, which at that time was not part of the EU legal framework. In addressing the case the House of Lords had to face the objection, raised by the State Secretary, that introducing certain legal guarantees would conflict with the efficiency of the system itself. According to the State Secretary, it would be cumbersome and against the objective of speedily returning asylum seekers to analyse whether a signatory party of the then Dublin Convention actually provided the same level of protection that the United Kingdom would guarantee. Reaffirming the UK’s commitment towards the Geneva Convention and in particular towards the non-refoulement principle, the Court compelled the Secretary of State to ascertain that the country of destination – although part of whatever multilateral treaty – ensures a level of protection equal to that which the UK would guarantee. The House of Lords concluded that “the sky will not fall in” if, as a result, the Secretary of State will see the complexity of its assessments increase. The ruling, which foresees by 10 years those most famous of the European Court of Human Rights2 and the Court of Justice of the European Union3, is a first crack in the blind mutual trust founding the Dublin System.

A similar issue was raised last year before the Munich Administrative Court.4 The Court was called to address the case of an Afghan asylum seeker who, caught at the Austrian-German border, was first denied entry into the German territory and then returned to Greece on the same day. Once there, the applicant was not treated as an asylum seeker or as a Dublin returnee, but rather was considered as an irregular migrant. Consequently, he was detained in preparation for deportation to Afghanistan, without his asylum claim being examined by authorities in Greece or in Germany. The case cannot be counted as one of the innumerable violations committed on the borders by the officers patrolling them. Indeed, what happened was precisely the result of the implementation of the Administrative Agreement5 concluded between the German and Greek authorities in August 2018. This agreement provides for the readmission from Germany to Greece of any asylum seeker identified and whose entry was refused at the border between Germany and Austria.6 With the exception of unaccompanied minor, the only criterion is to be registered as an asylum seeker in Greece on the basis of an EURODAC entry dated after 1 July 2017. The procedure is quick and efficient. Not only must the return be initiated within 48 hours from apprehension, but also the Greek authorities have only six hours to raise objections; otherwise, the transfer is automatically confirmed. To properly appreciate the time-efficiency, it is important to note that, based on Eurostat data, in 2018 under the Dublin System 65% of the transfers are enforced within 6 months, 21% between 7 and 12 months and 14% between 13 and 18 months. Nevertheless, the Munich Administrative Court was not requested to judge the efficiency of the Administrative Agreement, but rather its fairness. Addressing the case, the Court had to confront the position of the Federal Directorate of Munich, according to whom, by returning asylum seekers to the Member State of first fingerprinting, the Administrative Agreement correctly implemented the Dublin System. The Court drastically rejected the theory of a “pre-Dublin procedure”. Indeed, the Court stated that the procedure provided by the Administrative Agreement results in a circumvention of the Dublin System, because it undermines not only its objectives but also the subjective procedural rights that the system provides to asylum seekers. Furthermore, the Court explained that the procedure cannot be interpreted as being in line with the refusal of entry provided by the Schengen Border Code and by paragraph 18 of the German Asylum Act, because accordingly “the only way to ensure that the applicant does not enter the territory is to ensure that he does not do so. Therefore […] return travel could only take place to Austria”. As a result, the Court ordered Germany to return the asylum applicant from Greece and to grant him provisional entry into Germany.

The two cases refer to different phases of the EU policy on migration and asylum. The Adan case refers to the situation in the 2000s, when the Common European Asylum System (CEAS) had still to be established. By that time, it was already clear that governing the mobility of asylum seekers, despite their small number, would be critical in a borderless Europe. It was precisely to this end that the States placed their aspirations in the Dublin System, which, on the assumption of a supposed legal homogeneity, was designed to ensure the speedy transfer of asylum seekers to the Member State responsible for examining their request. However, these aspirations were not supported by jurisprudence, which was more concerned with the fairness of the system, rather than with its efficiency. National and supranational rulings challenging the blind mutual trust were welcomed as the beginning of a dismantling process of the Dublin System in favour of a rights-oriented approach.7 However, it is fair to acknowledge that the numbers more than the principles were decisive in dismantling the system. In 2015, the so-called Refugee Crisis openly exposed the weaknesses of the Dublin System, which, paradoxically, was deemed excessively protective of asylum seekers. Confronted with the inefficiency of the system and with an endless CEAS reform process, Member States have forgone solidarity and have erected walls made of both barbed wire and legal provisions. This new scenario is characterized by a clear distinction between the territory of the country, where the CEAS and the Dublin System are applied, and the borders of the country, where a state of exception operates. The case addressed by the Munich Administrative Court exemplifies the final development of this new scenario. Indeed, these very exceptions are today dismantling the Dublin System and the idea itself of a common EU policy on asylum and migration, which is replaced by national or bilateral approaches. Moreover, this multitude of exceptions are seriously undermining the rights of asylum seekers, whose subjectivities remain trapped between restored national borders. Now as then, the Courts play an important role of reaffirming the non-refoulment principle which, albeit frustrated, remains fundamental in restraining national sovereignty and in ensuring the protection of asylum seekers.

1. House of Lords. 19 December 2000. Regina v. Secretary of State for the Home Department, Ex Parte Adan and Regina v. Secretary of State for the Home Department, Ex Parte Aitseguer.
2. ECHR, M.S.S. v. Belgium and Greece 2011.
3. CJEU, 2011, Joined Cases C-411/10 NS v Secretary of State for the Home Department and C-493/10 ME v Refugee Applications Commissioner & Minister for Justice, Equality and Law Reform.
4. Administrative Court of Munich, Summary Decision of the 8th August 2019 (M 18 E 19.32238), available at: https://www.proasyl.de/wp-content/uploads/Eilbeschluss-VG-M%C3%BCnchen_8.8.2019-2.pdf (consulted on the 31st of May 2020).
5. The text of the Agreement has not been officially published, though it has been leaked. See: Support Aegean, The Administrative Arrangement between Greece and Germany, 1 November 2018, available at: https://rsaegean.org/en/the-administrative-arrangement-between-greece-and-germany/ (consulted on the 31st May 2020). A similar agreement has also been signed between Germany and Spain.
6. As stated by Part III of the Administrative Agreement, in return for its cooperation, Greece obtains from Germany the effective respect and implementation of the family reunification provided by the Dublin Regulation.
7. Cathryne Costello. 2012. “Dublin-Case NS/ME: Finally, an End to Blind Trust across the EU?” Asiel & Migrantenrecht, no. 02: 83–92. Violeta Moreno-Lax. 2012. “Dismantling the Dublin System: M.S.S. v. Belgium and Greece” European Journal of Migration and Law 14: 1–31.

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Per citare questo articolo:
Serangeli, Irene. “Dismantling Dublin, Restoring Borders: The Mobility of Asylum Seekers after the Refugee Crisis”, in Escapes – Laboratorio di studi critici sulle migrazioni forzate VI Conferenza nazionale – edizione on line 26 giugno 2020, http://www.escapes.unimi.it/escapes/dismantling-dublin-restoring-borders/, consultato il GG/MM/AAAA

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