In our paper ‘Guarding Standards — Shaping the Agenda’ of April 1999, the European Council on Refugees & Exiles (ECRE) urged EU States not to communitarise the Dublin Convention without a full and fair evaluation of its implementation from the perspective of refugee protection, and also administrative efficiency. Therefore, ECRE would like to take this opportunity to thank the European Commission for providing the chance for Member States and civil society to reflect on the functioning of the Dublin Convention prior to developing the Community legislation that will eventually replace it. Specifically, we would like to thank the Commission for its staff working paper, ‘Revisiting the Dublin Convention’, which provides a balanced and frank appraisal of concerns and issues relating to the present implementation of the Dublin Convention as well as exploring options for improvement; and also for the opportunity afforded to non-governmental organisations to comment on the important issues raised by the paper.

Shortly following the entry into force of the Dublin Convention, ECRE issued a Position on the Implementation of the Dublin Convention in the light of lessons learned from the implementation of the Schengen Convention, December 1997. In the Position, we raised a number of grave concerns arising from our experience of the implementation of the Schengen Convention. These concerns related to almost every aspect of the Dublin Convention including: the aims; the criteria for determining state responsibility; the social and economic rights of those asylum seekers whose applications were being processed under the Dublin Convention; and procedures. It is regrettable to have to note that following more than two and a half years of implementation, our concerns have been justified and additional concerns have been raised. The Commission staff working paper states that "few if any Member States appear to regard the Dublin Convention as an unqualified success". ECRE regrets to add that non-governmental organisations and lawyers assisting asylum seekers consider that the Convention and its application are considerably flawed.

This ECRE paper will not re-state in detail our concerns regarding the implementation of the Dublin Convention as these are contained in our Position Paper. They are also, to a significant extent, referred to in the Commission paper and will be ably covered by the research currently being undertaken by the ECRE member agency the Danish Refugee Council within the framework of the Odysseus programme. Instead, we will seek to state the improvements that we look forward to seeing in the Commission’s proposal for a Community legal instrument replacing the Dublin Convention.

The Commission rightly points out, more than once, that "if a mechanism for allocating responsibility for asylum applicants is to operate effectively, it must be accompanied by common standards in procedural and substantive areas of asylum law." This is clearly not just a question of effectiveness but also a question of fundamental justice. Asylum laws, the interpretation of those laws, and asylum procedures vary so widely and significantly from one European Union State to another that the situation has been referred to as a "protection lottery".

Under the current application of the Dublin Convention, the situation is such that a refugee may be forcibly removed from an EU State which would have granted refugee status according to the generally accepted interpretation of the 1951 Convention, supported by UNHCR, and transferred to an EU State applying an improper interpretation and consequently denied refugee status. Similarly, a refugee whose application has been rejected by an EU State adopting a restrictive interpretation may not be able to claim asylum in another EU State which might otherwise have granted it according to the generally accepted interpretation. The ongoing implementation of the Dublin Convention in such a situation is manifestly unjust and renders States at risk of violating their obligations under the 1951 Geneva Convention and the European Convention on Human Rights.

As the Commission knows, ECRE has repeatedly expressed its concerns with regard to the schedule for implementation of the Amsterdam Treaty agreed by the Commission and Member States in the Vienna Action Plan which foresees the adoption of a mechanism for allocating responsibility for asylum applications before States have agreed on the recognition and content of refugee status under the 1951 Convention and on who should benefit from complementary protection. ECRE must stress again that a system for allocating responsibility for asylum applications cannot function fairly whilst such divergences continue to exist. Harmonisation of both substantive law and procedures must be a prerequisite for the fair implementation of Community legislation replacing the Dublin Convention. All ECRE’s comments in this paper are qualified by this general position.

ECRE urges the Commission to include provisions within the Proposal for Community legislation which ensures that States, as an absolute minimum, uphold their obligations under the 1951 Convention and European Convention on Human Rights. As a minimum, the asylum applicant must have a suspensive right to appeal against his or her removal to another EU State where s/he considers that transfer to that State would be in violation of Article 33 of the 1951 Convention or Article 3 of the European Convention on Human Rights. In T.I. v. U.K., the European Court of Human Rights clearly found that no EU State can automatically rely on arrangements agreed for allocation of responsibility, and that indirect removal does not affect the responsibility of each EU State to ensure that the applicant is not, as a result of its decision to transfer under attribution of responsibility arrangements, exposed to treatment contrary to Article 3 of the European Convention on Human Rights. The risk of removal contrary to Article 3 of the ECHR and Article 33 of the 1951 Convention must be limited by providing the asylum applicant with an effective legal remedy.

ECRE wholly concurs with the Commission that the solution to the problem of diverging laws, interpretations and procedures "cannot be to legislate to replace the Dublin Convention in such a way that Member States lose the discretion currently provided under Article 3(4) of the Dublin Convention to examine an application for asylum". Indeed, it should be quite the opposite. Article 3(4) should not only be maintained, but asylum seekers should have the right to request that a State assume responsibility under this Article.

ECRE agrees with the Commission that the Community legislation replacing the Dublin Convention should not apply to refugees recognised by a Member State but who then seek asylum in another Member State. Instead, we urge that the Community legislation based on Article 63(4) of the Amsterdam Treaty provide refugees recognised as such by a Member State and persons afforded complementary protection by a Member State with a right of freedom of movement within the European Union and the right to legally reside in other Member States in parity with EU nationals. This would be in line with the intention of EU Member States to pursue a more vigorous integration policy aimed at granting third country nationals rights and obligations comparable to those of EU citizens.

With regard to the current limitation of the Dublin Convention to applications for refugee status under the 1951 Geneva Convention, ECRE re-states its position as mentioned above: EU agreement on the recognition and content of refugee status under the 1951 Convention and on who should benefit from complementary protection should be a prerequisite to the implementation of a mechanism for allocating responsibility for asylum applications. Once the European Union has agreed on the beneficiaries of both refugee status and a complementary form of protection, it is logical that the Community legislation replacing the Dublin Convention be applicable to all applicants for protection. ECRE has previously stated that it believes that it is both in the interests of Member States and asylum applicants that the same asylum procedure, with the same minimum guarantees, is able to determine not just whether an applicant qualifies for protection under the 1951 Geneva Convention but also whether s/he may qualify for protection under another national or international legal provision.

The objective of Community legislation for allocating responsibility for asylum applications should be:

The Commission staff working paper suggests that Member States aim to deter the misuse of asylum procedures by preventing asylum applicants being able to choose in which Member State they seek asylum and that this may be considered an objective of the Dublin Convention.

The Commission’s paper states that Member States are concerned that if persons are free to choose the Member State in which they lodge an asylum application, there is increased scope for them to go to a particular state for economic reasons and to lodge an asylum application to ensure that they cannot be removed. ECRE believes that if asylum procedures are abused by economic migrants in this way, the most effective deterrent is a fair and efficient asylum procedure. Furthermore, the European Union should seriously re-consider its policy of ‘zero immigration’. An EU immigration policy may not only be in the economic interests of the Union, but may reduce clandestine entry and ease pressures on asylum systems.

The Commission also states that Member States are concerned that if asylum applicants were able to choose the Member State in which they claimed asylum, there might be a tendency for them to treat some Member States as transit countries rather than as countries of destination. ECRE would argue that choosing a particular State on the grounds that there is a better chance of a fair examination of the asylum application and proper application of international law, is not a misuse of the asylum procedure. Choosing a particular State because one has family, friends and community there, is not a misuse of the asylum procedure. Choosing a State because one speaks the language of that State, is not a misuse of the asylum procedure. These are legitimate factors which may, if there is a choice, influence an asylum seeker’s decision as to where to lodge an asylum application.

ECRE would encourage both the Commission and Member States to reflect further on the consequences of denying asylum seekers a choice as regards to where they lodge an asylum application. ECRE believes that there are a number of principled and pragmatic reasons why enabling the asylum seeker to choose the Member State in which s/he wishes to lodge an asylum application is in the interests of both asylum seekers and Member States:

1. it would lessen the administrative burden on States which would no longer have to investigate and assess evidence relating to the asylum applicant’s entry to the European Union;
2. it would reduce the incentive for the secondary movement of asylum seekers in line with the stated objective of the European Union;
3. it would reduce the incentives for asylum seekers to destroy documentation, and thereby facilitate the examination of asylum applications. In the case of a denial of protection, it would also facilitate return to the country of origin.
4. taking into account the legitimate needs of asylum seekers to be with their families, friends and communities would benefit their reception in the host State and facilitate their eventual integration if granted protection.

ECRE agrees with the Commission that the equitable distribution of asylum applicants between Member States should not be the objective of the Community legislation replacing the Dublin Convention. This should be addressed by progress towards a Common European Asylum System encompassing a uniform status, procedures, reception and integration. The adoption of the European Refugee Fund should also go some way towards compensating those States with greater numbers of asylum applicants and refugees as well as assisting those States that need to develop their reception and integration facilities.

ECRE wholly agrees that Community legislation must respect the principle of family unity and ensure the reunification of separated family members. The existing Dublin Convention fails to respect this principle insofar as reunification with a family member is only guaranteed where that family member is either a spouse or parent of an unmarried child under the age of 18 and that family member has refugee status under the 1951 Geneva Convention. Otherwise, reunification with other family members (e.g. siblings, parents of adults, adult children, other dependants), or family members with an asylum application pending or already holding a complementary form of protection is left to the discretion of States under Articles 3(4) and 9. Regrettably, it has been the experience of NGOs and lawyers assisting asylum seekers that most European Union States do not exercise their discretion to reunite families with the result that families remain separated throughout the European Union.

ECRE believes that the maintenance of such a limited right to family reunification is neither in the interests of asylum seekers and refugees, nor in the interests of States. If it is the aim of the European Union as stated in the Action Plan to limit ‘secondary movements’ by asylum seekers, then it is in the interests of the EU to facilitate family reunification. If it is the aim of the European Union to ensure efficiency in the examination of and decision-making on asylum applications, then it is in the interests of the EU to facilitate family reunification. And if it is the aim of the European Union to eventually facilitate the integration of those afforded protection status, then it is in the interests of the EU to facilitate early family reunification. Therefore, there are both principled and pragmatic reasons why the Community legislation must include binding provisions ensuring the reunification of asylum seekers and refugees of the same family.

ECRE would urge that the Commission Proposal for Community legislation contain a binding provision ensuring family unity which has precedence over any other criteria contained in the legislation. ECRE is of the opinion that the current definition of the concept of ‘family’ is far too narrowly defined. In light of the Member States’ commitment to co-operate with UNHCR, ECRE draws attention to Paragraph 185 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which calls for a broader concept of the family. Furthermore, in the light of the clearly documented trend towards ever lower recognition rates under the 1951 Geneva Convention, and the increase in the use of other complementary forms of protection (for example, humanitarian, ‘temporary’, de facto etc.), reunification with family members afforded such a complementary status should be guaranteed. Finally, the Community legislation should include a binding provision ensuring the reunification of family members applying for asylum in different Member States. This would be in line with the Vienna Action Plan which states that the Dublin Convention should be supplemented "by provisions enabling the responsibility for dealing with the members of the same family to be conferred upon one Member State where the application of the responsibility criteria would involve a number of States".

There are a number of principled reasons why allocation of responsibility should not be linked to responsibility for entry controls.

It encourages States to illegally refoule asylum seekers at their land and sea borders. It encourages EU States to impose visa requirements on States clearly experiencing civil wars and widespread abuses of human rights producing refugees and displaced persons. It also encourages EU States to export enforcement measures beyond the frontiers of the Union by sending so-called liaison officers overseas to enforce border controls extra-territorially, and further ‘privatising’ enforcement through the extended implementation of carriers’ sanctions whilst discouraging the implementation of compensatory measures to facilitate access to the territory. It is impossible to be precise about the number of refugees who are denied escape from persecution due to the stringent checks by transport companies, but clearly it represents an ever-increasing barrier. The result of such controls is that refugees are increasingly likely to have to resort to illegal means of entry with the consequent high risks to their lives and the costs of using traffickers.

Furthermore, linking allocation of responsibility for asylum applications with responsibility for entry controls will clearly have the ultimate result of shifting responsibility for asylum applications to those States with extended land and sea borders in the south and east — the principal migration entry points. These States - the accession States of central Europe and the southern European States — are the very States with the most under-developed asylum infra-structures in the European Union.

There are also pragmatic reasons why linking allocation of responsibility for asylum applications to responsibility for entry controls will ultimately be unworkable and, therefore, ineffective.

The Commission is right to highlight that, in a situation where illegal entry offers the only option for many asylum seekers to gain access to the territory and, thereby, access to an asylum procedure, EU States will continue to face problems caused by a lack of evidence proving which EU State was entered illegally: either because there actually is no evidence or the evidence has been destroyed or the evidence does not provide sufficient proof. It is clear that even if EU States were to agree on a more consistent and common approach to the assessment of indicative evidence, the problems caused by a complete lack of evidence would persist. The Commission is also right to note that the impact of the proposed Eurodac regulation is likely to be limited to the extent to which States are able and willing to apprehend and finger-print persons crossing their external borders irregularly. There remains a question whether those States with extended external borders see any incentive for investing significant human and financial resources in patrolling their land and sea borders in order to apprehend and finger-print illegal entrants.

The first two alternatives posed by the Commission, which are:

• A system which allocates responsibility for an asylum applicant to the last known transit country within the EU and
• A system based on an aspect of the applicant’s immigration history other than the Member State which was responsible for his/her entry to the European,

suffer some of the significant weaknesses of the present Dublin Convention. They rely on the existence of sufficient evidence and, therefore, protracted investigation and negotiation between States may still occur.

A system based on the applicant’s country of origin is the most radical approach. However, there may be some advantages, e.g. family reunification might be facilitated; and receiving states might have a greater interest in the human rights record of the country of origin, thereby providing an incentive for a pro-active human rights and conflict prevention policy. On the other hand, in addition to the concerns of the Commission which are significant, such a system would also pose other problems, e.g. the country of origin could more easily observe and exert pressure on its population in exile; and the concentration of all political opposition groups in one country could be problematic.

Of the four possible alternatives proposed by the Commission, ECRE would favour a system based on allocation of responsibility according to:

1. where the asylum applicant has a family member, provided s/he so agrees;
2. where the asylum application is lodged.

It is foreseeable that an asylum applicant may have a family member in more than one European Union State and, therefore, this criterion should be supplemented by guidelines addressing such a situation. It may also be foreseen that a situation could occur whereby an asylum applicant, having entered the European Union irregularly, is apprehended before reaching the State where s/he wishes to lodge an application for asylum. A provision along the lines of the current Article 9 of the Dublin Convention should, therefore, be retained so that another Member State may assume responsibility for an asylum application on humanitarian or cultural grounds. Readmission rules complemented by the Eurodac regulation would prevent multiple — either concurrent or consecutive — applications for asylum.

This option meets the Commission’s criteria of a system that is clear, workable and effective:

It is clear because there are only two criteria to be applied in the order in which they are presented.

It is workable because such a system would not be plagued with the overwhelming administrative burden of investigation and assessment of indicative evidence and consequent protracted negotiations. It would also remove an incentive to destroy documents which may be relevant to the identification of the asylum applicant.

It is effective because the identification of the responsible State would be swift and, therefore, the system would operate more quickly. It would undoubtedly require less human and financial resources to operate. The reunification of families would facilitate the examination of their asylum applications. Finally, it would tackle the problem of multiple applications and secondary movements.

However, ECRE would like to add two further important criteria: the system should also be fair and humane for asylum seekers. This model is both fair and humane in that it not only provides a guarantee of family reunification, it also recognises a principle set out in the UNHCR Executive Committee Conclusion No. 15 that "the intentions of the asylum seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account."

The current Dublin Convention, linking allocation of responsibility for examining an asylum application with responsibility for controlling entry to the territory, is not working. It is a system which is resource intensive, plagued by protracted negotiations which render it slow, and ultimately a very small proportion of asylum seekers are actually transferred. The reunification of asylum seekers with their families is not guaranteed and as a result asylum seekers remain separated from the families, friends and communities. With regards to the assessment of evidence, ECRE agrees with the Commission that the implementation of the Eurodac Regulation will only have a limited impact and doubts whether further guidelines on the assessment of indicative evidence will ever result in an efficient system. At the same time, it is a system that encourages States to deny asylum seekers access to the territory in contradiction with Member States own commitment as expressed in the Tampere Presidency Conclusions of October 1999.

A system based on ensuring family unity and where the asylum application is lodged not only, as mentioned above, meets the Commission’s criteria of a system which is clear, workable and effective. Importantly, it also meets the criteria of a system that is fair and humane for asylum seekers. In other words, it is in the interests of both Member States and asylum applicants. ECRE would urge the Commission and Member States to give this model their most serious consideration.

The Commission paper concludes by stating that this model would rely on harmonisation in other areas such as asylum procedures, reception conditions, interpretation of the refugee definition and complementary forms of protection to reduce any perceived incentives for asylum applicants to choose between Member States when lodging their application. As ECRE has said repeatedly, no system of allocation of responsibility for examining asylum applications can function fairly without such harmonisation of substantive law and procedures.