How to fix the breaks in Europe’s asylum system


Picture of Klen Jäärats
Klen Jäärats

Director for EU Affairs at the Office of the Prime Minister of Estonia and 2015-2016 European Young Leader (EYL40)

Early in April, the European Commission published a Communication outlining its intention to substantially reform the Common European Asylum System (CEAS). As intended, it was followed up by substantial reform proposals for the “Dublin system” of allocating responsibility for asylum applications, and will end with a fully-harmonised European asylum system. From the outset, it’s fair to say that the problems in Schengen and Dublin go much deeper, and have been going on for far longer, than today’s crisis.

The latest ‘communitarisation’ of Schengen has also paradoxically led to its renationalisation, not making the re-establishment of internal border controls unimaginable, but much easier with 2013 reforms to the Schengen borders code. Temporary border controls now seem to be the new normal, which has generated a sizeable amount of mistrust and quasi-legal national responses. It has made finding collective solutions less likely, and only even possible in extreme circumstances. The geopolitics of immigration control also made the southward enlargement of Schengen into the Balkans all but impossible. The refugee crisis only reinforced these developments, mushrooming the beggar-thy-neighbour national strategies and hypocritical finger-pointing that have now become commonplace.

The new Communication and package of measures seem to rest on the admission that the current Dublin system’s poor implementation is driving the need for fundamental change. The real test of this reform will be whether the restored internal borders can be lifted or if EU member states, succumbing to popular fear, will risk the potential loss in trade of up to €224bn by 2025 plus extra costs related to the establishment and management of borders. The barbed-wired and semi-militarised closure of the Balkan route, the Valetta Summit and the EU-Turkey Agreement have together showed the desperate and very confusing nature of Europe’s response to the ongoing crisis. Europe has fallen into the fallacy of post hoc ergo propter hoc – after it, therefore because of it.

It is extremely important that member states are incentivised to meet high standards on behalf of everybody else – but they haven’t been

National disregard for the collective rules and responsibilities, and underinvestment have led to the questionable conclusion that the rules and system are themselves rotten and in need of a U-turn. All Schengen really needed for a truly borderless area was proper implementation at national and EU level, a decisive crisis framework and coherent external action. Europe’s inability to design a working system, to implement its own rules and manage a crisis has generated much doubt in its ability to deliver, now and for the future. The Syrian refugee crisis has as such become a Schengen crisis, and has also made clear that the Dublin system should have long been an inseparable part of the Schengen process. There needs to be a twin-track approach to protecting the external borders and refugees, to restore a trust and balance of obligations.

The Commission Communication states that ‘the Dublin system was not designed to ensure a sustainable sharing of responsibility for asylum applicants across the EU, a shortcoming that has been highlighted by the current crisis’. In other words, Dublin is nothing more than a rulebook to regulate responsibility for asylum applications and secondary movements in a borderless area. As there is no federal force responsible for the borders themselves, it is extremely important that member states are incentivised to shoulder their responsibilities and meet high standards on behalf of everybody else – but they haven’t been.

The responsibility of the first member state, established in the Dublin mechanism, is and must remain the cornerstone for the whole system. By understanding the challenges to Schengen and Dublin as essentially administrative, the most reasonable response would have been to allocate more resources towards patrolling, rescuing, processing, reception and so on. A riskier alternative was the redistribution of ‘administrative burden’ (asylum applications). Essentially, the Commission decided to fix the Schengen-Dublin nexus by opening up the border – everybody applying for asylum would be redistributed across the EU, whether or not in need of protection. By proposing a ‘corrective mechanism’ on top of a permanent crisis mechanism, it continued focusing on managing asylum applications rather than on solutions for protection needs and hosting refugees. This oversight led to hesitation and panicked political tension between and within member states, including fear of redistribution of illegal immigration.

To adapt Dublin with a bolt-on burden-sharing mechanism was a clear political choice, not the best option available

Furthermore, including all asylum-seekers into the burden-sharing algorithm, instead of only people needing protection, means spreading failures of national migration policies across the EU – a good example being the huge amount of asylum applicants from Balkan or ex-Soviet countries in some member states. Dublin was built on the assumption of efficient national asylum systems working to disincentivise unfounded requests at the border. In future, it should be part of Schengen evaluations and admission criteria. The proposed solution – being algorithmic and without participation by destination countries – also fails to build trust. Without the participation of all member states, it may become inefficient, ineffective and hugely expensive to administer by those states that cooperated. The Communication could have offered a change of course, but has instead proposed to make this controversial system permanent.

Elements of an efficient protection system such as registration and identity, medical and security screening were and are pertinent, especially for public trust and alleviating the perception of Europe’s total loss of control. But to adapt Dublin with a bolt-on burden-sharing mechanism was a clear political choice, not the best option available. The Treaty on the Functioning of the European Union itself points to other solutions and directions, including for in a crisis. It is difficult to understand why there was no attempt to use and/or fix the solidarity mechanism within the temporary protection directive (2001/55), an instrument intended specifically to address a mass influx of people in clear need of protection. I am sure that choosing this course would have been more acceptable for member states as a solution to the crisis and the need for solidarity.

Triggering temporary protection would also have allowed Syrian refugees to be treated as a distinct group protected by a collective effort. From the administrative point of view, the move would have separated Syrian war refugees from the overburdened asylum system. By offering immediate protection, it also would not have left a choice over the type of protection – refugee status, temporary, subsidiary, humanitarian – to the discretion of member states, generating yet another potential reason for secondary movements and asylum-shopping. It would have been practical, allowing more ownership by receiving member states through participation in the overall effort. Since the temporary protection system already had a solidarity framework built in, admittedly never tested in a real situation, Europe could have improved and operationalised that rather than focus on Dublin, an instrument never intended for such a purpose.

Since the temporary protection system already had a solidarity framework, Europe could have operationalised that rather than focus on Dublin

Both at EU and national levels, trust is generated through jointly-agreed standards and especially through implementation. It seems highly unlikely both legally and practically that a strategy to deter spontaneous arrivals coupled with the external processing of asylum requests will be acceptable to third countries or most member states. It is also unlikely that the algorithmic system proposed by the Commission will enjoy a sufficient amount of acceptance and offers enough ownership to make it work. It may be practical, therefore, to think of further solutions. One alternative focused on protection needs rather than administrative needs would be to separate refugee status determination to create an ‘EU refugee status’ that would be recognised all over the union, while asylum in the form of a residence would still be offered nationally. Only those in need of protection would then be subject to transfer to other member states after status determination, and after a limited period of time for national security screening, the receiving member state would issue the residence permit. A national residence permit would also make secondary movement far less likely. Furthermore, only the amount of recognised refugees would be taken into consideration when deciding upon a distribution key, not all asylum-seekers. On top of that, any financial assistance to member states should be performance-based and protection systems made subject to strict Schengen evaluation in case the administration of the system would not be handled by common institutions.

The whole sequence of building a more sustainable solution for the CEAS should follow the reverse logic of the Commission’s current proposal: first establish common standards for EU status and national residence, then follow through with procedures to ensure that the same rules are applicable everywhere, then build institutions, technical systems and equipment to deliver, and finally decide the framework for responsibility. Schengen will only function when there is no incentive or opportunity for beggar-thy-neighbour approaches.

Disclaimer: This article reflects the personal opinions of the author

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