On the 15th of June 1990 the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (as the European Union was called in the past), better known as The Dublin Convention or Regulation, was approved.
This document was a fully-fledged international treaty, signed by those Member States that were already part of the European Communities at that time (initially Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxemburg, The Netherlands, Portugal, Spain and United Kingdom; after Austria and Sweden had followed and lastly Finland) and by some States – such as Island, Lichtenstein, Norway and Switzerland – that, even not being part of the European Communities, had signed bilateral treaties with them stating that the fundamental principles of the Dublin Convention would be extended even to their territories.
The main aims of this international treaty had been, and they still are: avoiding the so-called asylum shopping – i.e. the submission of several asylum requests in several Member States by the same migrant -; avoiding that migrants would be forced to move from one State to another while waiting to be authorized to submit their request, without really being able to access to any benefit since the alarming frequency of their movements.
Furthermore, there is a significant difference among the first drafting of the Dublin Regulation and the one which is currently being used. This difference relies on the identity of the beneficiaries of this “system”. In 1990 indeed, the adoption of the Convention was aimed to regulate the migration from Eastern Europe. The number of migrants at that time, even if huge, was not at all equal to the number of people coming in Europe today.
Highlighting the difference among beneficiaries is fundamental in order to better understand why, in the first drafting, was included a principle which nowadays we consider unfair: the Country of first arrival principle.
This principle states that the Country in which the migrant firstly lands is the only one in charge of the examination of his/her asylum request, bearing all its costs and – consequently – even the reception costs. This also means that if a migrant illegally crosses the border of that Country in order to reach another State, if found, he/she has to be sent back to the Country of first arrival.
Without going into depth of what the migration crisis of the Eastern Europe had been, it is important to remember that often entire families of many of the inhabitants of the Soviet Countries lived immediately after the border with their Home State. This means that there was not such a problem like the “equity in the redistribution of quotas” as today.
Modifications to the system
Stating from 1999 a first modification of the so-called “Dublin system” – i.e. the one disciplined by the Dublin Regulation – occurred.
With the entry into force of the Amsterdam Treaty indeed, the jurisdiction over the right of asylum had been modified (until that moment the Member States were the ones exclusively in charge of it). This discipline had been ratified in 2003 with the approval of the document better known as Dublin II Regulation. The main modification to the previous system was that jurisdiction over the right of asylum was now to be given to the European Union.
It is safe to say that, practically speaking, this modification did not have any effect since it was not (and it still is not) a matter of exclusive jurisdiction.
The Country of first arrival indeed was not modified, even if it started producing negative effects.
In the 2013 then, the Regulation had been modified again and the Dublin III Regulation was approved. This new text introduces some palliative measures aimed to improve some procedures of the reception system.
The terms to reunite with families had been broaden, the possibility of raise a claim against a transfer order had been enlarged and more defenses for under-ages people had been introduced.
Lastly, the Eurodac database (European Dactyloscopy) had been instituted. This is a storage that contains the fingerprints of either the asylum seekers or of the people who had been stopped while they were trying to illegally cross the external border of the European Union. This database is important because, comparing this data, it is possible to understand whether the asylum seeker has already submitted his/her request in another State – contributing to fight against asylum shopping.
Please, take into consideration that it has not till the 2015 that a real changing on the matter has intervened. In that period indeed, a real and harsh refugees’ crisis had happened and this has brought the Germany on one hand, to suspend the Dublin mechanism and the Countries of the Visegrad Geroup (Poland, Czech Republic, Slovakia and Hungary) on the other, to close their borders as what it seems to be a definitive measure.
It was now clearer than ever that a real and profound reform of the European right to asylum was strongly needed.
The new proposal of reform
After months of proposals, amendments, debates, more or less harsh diplomatic confrontations, in November 2017 the European Parliament has approved a quite broad proposal of reform which, for reasons we are going to analyze, had never been approved anyway.
This proposal established a complete overcoming of the Dublin’s criteria and finally it would have substituted the Country of first arrival principle with an automatic and permanent mechanism of asylum seekers’ relocation through a quotas system.
All the European Member States were supposed to engage in this new mechanism, so that it would have been possible to relieve the Countries of first arrival (Italy, Greece and, even if in a slight portion, Spain) of the burden of assisting all these people, on the basis of a principle of solidarity which is among the fundamental cornerstones of the European Union.
Moreover, another criteria should have been introduce: taking into consideration the nature of the asylum seeker’s relationships with the State to which he/she would have preferred to submit his/her application – i.e. if his/her family members live there. This would have provided much more stability and security to the migrant and it would have better supported his/her integration within the social context of the Country.
Given the several harsh criticisms to the new discipline – which had been expressed even before its effective adoption – a compromise had been proposed: the migrants’ distribution system would have been on a voluntary basis, giving to the unwilling Countries the possibility to pay a certain amount of money for each migrant in lieu of his/her reception (it would have been roughly around 30 thousands euros for each refugee). This system was meant to act as a deterrent to the adoption of xenophobic policies and, in general, of absolute closure which were and still are spreading within the European Countries.
This mechanism was never approved and today the first Dublin system which, besides some tiny modifications, is still the same as the one adopted in the 1990 – as we have seen, a decade which could not be neither slightly compared to the current one – is still applied.
Criticisms to the new reform
First of all, we are going to analyze why the above-mentioned reform has never been approved.
Fundamental to its defeat has been the unanimity principle, required for the approval of decisions by the European Council. According to this principle indeed, it is possible for the Member States vetoing on matter which are prickly for them in the attempt to safeguard a so-defined national interest or, much more likely as in this case, the interest of a certain political party.
And this is exactly what had happened during the examination of the new proposal of reform to Dublin III in front of the European Council.
Baltic Countries, the Visegrad Group, Italy, France, Germany and The Netherlands had opposed to the adoption of the new reform. But, if for Germany, France and The Netherland the refusal was based on purely formal reasons (or for reasons which could have been overcome through a serious debate), Baltic Countries, the Visegrad Group and Italy had declared themselves fully against the system of migrants’ redistribution based on quotas.
While the positions of Baltic Countries and the Visegrad Group were mostly predictable – since at that time those Countries were ruled by highly nationalistic and xenophobic parties – it is difficult to understand why Italy would have voted against a system that, practically speaking, would have reduced its liability for the reception of thousands of migrants.
Accountable for this choice are the two parliamentary groups which were ruling at that time, Lega Nord and Movimento Cinque Stelle.
On one side, the whole Lega Nord refrains from the voting by digging behind his leader and former Minister of the Interior’s words. The former Minister (Matteo Salvini) indeed had declared that, in the occurrence of the ad hoc meeting of the European Ministers of the Interior, “the Italian government would say no to the reform of the Dublin Regulation and to the new asylum procedures” and then he did not show up to the meeting itself. In this way, Salvini had lost an as precious as unique opportunity to effectively stand for the Italian national interests concerning this fundamental topic.
Surely, Salvini’s choice had been influenced by his close relations with the Visegrad Group Countries while attempting to unite, together with Marie Le Pen, all the populistic forces at the European level.
Even more astonishing is the position on the reform of the Movimento Cinque Stelle which had, at first, actively joined the working group and then, following the tightening of the positions on migration at a national level – subsequent to ruling together with Lega Nord -, had voted against the text because “it would worsen the current situation”, without providing any reason though.
Criticisms to the Dublin System
The so-called Dublin System has been criticized by several experts and institutions.
Among the others, those of the European Council for the Refugees and Exiles (ECRE) and the High Committee of the United Nations for the Refugees (UNHCR) deserves to be quoted. For those agencies indeed, the current system does not guarantee equal, efficient and effective protection because: it often hinders the possibility for migrants to benefit from the legal rights stated in there; it prevents the individual welfare, infinitely lengthening the times for the examination of the applications and it provides for an inequal distribution of the asylum requests among the Member States – as we have seen, the still in force Country of first arrival principle indeed, places the burden almost entirely on Italy, Spain and Greece.
Furthermore, the pression upon those territories which border with the European Union – where the refugees stop in order to later getting into Europe – is improved and they often are not able to offer an adequate support to the migrants.
Current Situation
At the European Council which took place on the 28th and the 29th of June 2019, even for appeasing the criticism following the failed adoption of the Dublin Regulation, the Italian Prime Minister Conte has introduced the European Strategy for Migration. This is a 10-points program which aims to overcome the Country of first arrival principle and to establish quotas of redistribution of the asylum requests among the Member States.
The Countries of the Visegrad Group, strong of the former Italian Minister of the Interior’s support (which had put the Italian government in a very uncomfortable diplomatic position), have obtained that this redistribution would take place on a voluntary basis – consequently vanishing the effectiveness of the proposal itself.
Moreover, we currently could neither rely on a new and strong action of the European institutions since the European Commission had already declared that it has abandoned the idea of changing the rule of the European right of asylum.
Therefore, the match now would be played on the diplomatic field – which in its turn is influenced by the commercial and economic one.
