Europe's Welcome Attempt to Harmonize Rules on Asylum Seekers
Europe's migration crisis has reinforced the importance of recent proposals by the European Commission to overhaul the so-called Dublin Rules for treatment of asylum seekers in the European Union (EU). The Dublin Rules were established among a subset of EU members in 1990. They took effect in 1997 and have been revised since then. They set the criteria and processes for deciding which EU member state is responsible for evaluating an asylum seeker and preventing such a person from choosing the country in which to submit an asylum application.
In most cases, the rules say an immigrant applies for asylum in the country he or she entered first, except when the applicant has a visa or residency permit for, or extended family in, another EU member country. As a result, most recent asylum seekers have had to apply for asylum in Greece or Italy.
Recent events have changed that assumption. Lately, most asylum seekers have applied in Germany, Hungary, Sweden, and other countries outside Southern Europe,1 in part because they have become better informed during the application process about which country has the most lenient asylum rules, economic prospects, and generous living conditions. Refugees are also drawn to countries where their fellow nationals already live.
The rules are flawed in many ways. They give asylum seekers an incentive to hide their desired destination country to force that country to take legal responsibility for them. Also, the rule requiring asylum seekers to transfer back to Greece has been suspended since 2011, when the European Court of Human Rights and the European Court of Justice declared that the Greek asylum system denied fundamental rights to applicants.
Thus asylum seekers have an incentive to go to specific member states, and there are no legal tools to prevent them from doing so. Clearly the original Dublin Rules were designed for a different situation of fewer asylum seekers, and they lack a distribution mechanism to prevent an individual member state from getting swamped by applications.
Yet, recent experience demonstrates the difficulty of compelling countries to accept large numbers of refugees or asylum seekers against their will. Only a few of the pledged 160,000 relocations of refugees from Italy and Greece have taken place, and only a few of the promised 20,000 refugees from outside the EU have been resettled. Facing these problems, the European Commission has proposed two minor changes to the current Dublin Rules.
The first would establish a "corrective fairness mechanism" to adjust the allocation of asylum seekers in the EU, offering some relief to frontline states in periods of acute pressure.
The second option would be more far-reaching and establish a new system for allocating asylum seekers in the EU based on a predetermined distribution key, replacing the existing Dublin Rules and hence generally relieving frontline states of their legal responsibilities under current rules to process the vast majority of asylum applications.
The Commission has further opened the possibility down the road of transferring national responsibilities for asylum seekers' appeals to a new EU-level agency. Such a proposal is in line with my suggestion in 2015 on a European mobility and migration union. I support this change while sharing the Commission's view that, while recent refugee inflows have declined, the proposal must be adopted over the long term.
The Commission's proposals are sure to be hotly debated in the months ahead. Several other more nitty-gritty details also deserve attention. One is a suggestion to let member states retain legal responsibilities for identifying, registering, and finger-printing all new asylum seekers, and for returning those found not needing protection, but with EU funds to pay for these functions. By implication, the EU funds paying for treatment of new asylum seekers in Greece would be made permanent, and they would cover the entire EU. Such a substantial financial commitment would require changes in the EU budget.
The Commission also suggests that the EU adopt a single common list of "safe countries" to facilitate the swift processing (or rejection) of asylum applications by nationals from countries on such a list. EU members should also harmonize rules on the maximum duration of asylum first instance and appeals procedures and treatment conditions of asylum seekers.
The Commission's intent is to "reduce incentives to move to Europe and to other Member States within Europe." It also proclaims that "while fully respecting fundamental rights and international norms, the Commission will carefully examine the need to adapt the level of rights in order to reduce both undue pull factors and secondary movements." The implication here is also clear—to make it more difficult to apply for asylum in Europe.
However callous these rules might seem, they are dictated by realpolitik. The simple political fact in Europe is that the only realistic opportunity the European Commission has ever to be granted the responsibility to harmonize asylum rules at the European level is if it can guarantee member states that the number of such accepted applications will decline dramatically from current levels. As such, whereas European integration in many other policy areas has meant a de facto liberalization as national protective measures were dismantled, integration of asylum and migration-related issues will demand the opposite net effect. Only if they feel satisfied that the overall level of accepted asylum seekers will drop, will European governments contemplate relinquishing these powers to the EU. Yes, these rules reflect a cynical attempt to seize control of the situation on the backs of some of the world's most vulnerable people. But Europe's system remains vastly more protective and generous for asylum seekers than systems in other comparable advanced economies. In 2015, the EU-28 granted asylum to 335,985 asylum seekers,2 whereas the latest available data for the United States show that in FY2014 it let in just 30,477 principal asylum applicants, as well as 39,498 dependents, to almost reach the aggregate fiscal year refugee admissions ceiling of 70,000, and Japan accepted a staggering 27 (though this was up almost 150 percent from 11 in 2014).
The Commission's proposals ought to be the focus of debate now. The question is whether to integrate immigration policies at the European level by (1) reducing the number of successful asylum applications in Europe by say 50 percent (towards the current US intake levels3) and (2) moving European asylum acceptances away from current acceptances of mostly "self-selected refugees arriving on Europe's borders" towards predictable and politically determined annual refugee intake quotas focused on refugees already registered by the UN.
Adopting the latter change would shift the characteristics of the EU refugee intake and would—in the (likely) absence of an effective external border deterrent—probably require changes to Europe's legal obligations under adopted UN refugee conventions.
Should Europe's current profile in asylum policy be dramatically altered in order to integrate its immigration policies? Are increased asylum restrictions the price to be paid for integration?
1. Eurostat data (migr_asyappctza) show that in 2015, 13,205 asylum applications were launched in Greece, 84,085 in Italy, but 476,510 in Germany, 177,135 in Hungary, 162,450 in Sweden, and 88,160 in Austria.
2. This number is the Eurostat sum of the number for total positive first instance decisions in 2015 of 307,620 (migr_asydcfsta) and the total number for positive final decisions in 2015 (migr_asydcfina) of 28,365. These Eurostat numbers do not include subsequent family reunifications.
3. The average number of total successful annual asylum applications between 2008-2015 in the EU-28 was 135, 989, or approximately twice the current aggregate (principal applicants and dependents) U.S. annual fiscal year ceiling of 70,000