EU Dublin Asylum System Faces Uncertain Future after Ruling in Afghan Family’s Case

In contesting their transfer from Switzerland to Italy on human-rights grounds, an Afghan family seeking asylum in Europe may have fundamentally weakened the European Union’s Dublin system for assigning responsibility to Member States for processing individual asylum applications. The ripple effects already are being felt as some Member States adjust their transfer practices.

The Tarakhel family, an Afghan couple and their five children (a sixth was later born in Switzerland), challenged their transfer from Switzerland back to Italy, the country where they first landed by boat in 2011. The parents, who had resided in Iran for 15 years before seeking asylum in Europe, had expressed fears that if returned to Italy they would be placed in separate reception centers (women and children are sometimes housed separately from men) where violence and poor sanitary conditions would put their young children at risk.

The November 2014 ruling by the Grand Chamber of the European Court of Human Rights’ (ECtHR) in Tarakhel v. Switzerland is the latest in a series of cases that could shake the foundation of the European Union’s Dublin Regulation, which was adopted in 2003 as the first element of the new Common European Asylum System (CEAS) and recast in 2013.

In its decision, the court set out an unprecedented requirement that sending-state authorities—in this case, Switzerland—obtain an individual guarantee from the receiving Member State that an applicant's basic rights and needs would be met, particularly in situations where doubts had been raised about the receiving Member State's ability to provide adequate living conditions for asylum seekers. Having received Italian guarantees that the family would not be separated and would live in conditions suitable for the children, Swiss authorities have since transferred the Tarakhels back to Italy.

"The ruling shows that [the] Dublin Regulation is not working at all anymore," said Franziska Maria "Ska" Keller, a German Member of the European Parliament. "It is time to replace it with a reasonable system" instead of "holding [on] to a system that discharges on the southern countries of the EU all responsibility for refugees," she added.

This article first examines the asylum context in Europe before assessing the impact of the Tarakhel ruling and reevaluating the Dublin Regulation’s value as a tool for allocating responsibility for processing asylum claims across EU Member States.

Casting Doubt on the Dublin Regulation

In recent years, EU Member States have been under increasing pressure as flows of asylum seekers and economic migrants have set off without visas for European countries, often on barely seaworthy vessels, in hopes of reaching Europe’s shores. The 28 EU Member States have seen near-record levels of asylum claims, with 626,000 applications in 2014. And tension between Northern and Southern countries over burden sharing in the humanitarian protection realm has been exacerbated—especially in light of highly publicized drownings of migrants and asylum seekers in the Mediterranean Sea (at least 3,500 recorded deaths in 2014, and nearly 400 in the first two months of 2015).

Against this backdrop, and with few policy solutions within easy grasp, EU policymakers are working to address the migration and asylum challenges facing the region. Most notably, the European Commission has announced it will release a new European Agenda on Migration this spring that will lay out a comprehensive approach to migration and asylum flows into the European Union. Within this broader agenda, the Tarakhel case and other recent legal judgments have cast doubt on the viability of Dublin, a key element of the CEAS. Rulings by ECtHR and the Court of Justice of the European Union (CJEU) have in particular questioned the implementation of the current system enacted in the Dublin Regulation.

By requiring in Tarakhel v. Switzerland an individual guarantee that asylum applicants' rights will be respected after transfer, ECtHR has further reduced the scope for states to apply the Dublin Regulation in automatic fashion. The decision increases the onus on European countries to scrutinize the particular circumstances of vulnerable asylum seekers, and potentially take protective measures, before transferring them to a country where they may be at risk of inadequate treatment. The level of additional scrutiny, time investment, and cost that obtaining individual guarantees will require raises further doubts about the practicality of Europe’s system for allocating protection responsibilities, particularly given the strain already placed by the steep increase in new arrivals and asylum claims.

Dublin: A Fair Allocation of Responsibility, or Undermining Rights in Practice?

The national asylum systems of the EU Member States exist in a unique and challenging context. Although each national government maintains its own asylum laws and procedures, the lack of internal borders between Member States means that applicants for protection can easily travel between EU countries. This freedom of movement also introduces the possibility that asylum seekers could submit a claim in more than one Member State; in some cases applicants may file multiple claims in an effort to identify the system with the highest acceptance rates or reception standards (a practice referred to as "asylum shopping"). Member States may also find it difficult to agree on responsibility to examine an applicant's case when claims have been filed in more than one country, causing applicants to be shuffled from one country's asylum system to another (known as asylum seekers “in orbit") and delaying access to protection.

In an effort to address both phenomena—and ensure fair and efficient processing of protection claims—the European Union adopted several legal instruments aimed at creating common standards of operation for all Member State asylum systems. Collectively, these regulations and directives are known as the CEAS. The Dublin Regulation, seen by states as a core piece of the CEAS, establishes a hierarchy of criteria that determines which EU Member State (Iceland, Liechtenstein, Norway, and Switzerland are also included as Dublin members) is responsible for an asylum claim. If authorities determine responsibility lies elsewhere, the applicant could be transferred to another Member State to have his or her claim assessed. Although the regulation gives more weight to family connections and visa histories, the most frequently applied criterion requires asylum applicants who enter the European Union illegally to submit their claim in the first Member State in which they arrive—often a border state such as Italy, Greece, or Hungary.

Advocacy organizations and human-rights groups have long raised concerns about the risks the Dublin system creates for asylum seekers. Dublin procedures and transfers can create delays in processing claims, often separating asylum applicants from family and postponing their ability to work legally or access key social services. Application of the regulation has also created incentives for asylum seekers wishing to avoid being transferred back to an undesirable destination to attempt to circumvent the system entirely. There have been numerous reports of asylum seekers in Italy, for example, evading authorities or damaging their fingerprints in an effort to avoid having their biometric data registered in the Italian system.

Dublin has also been criticized for encouraging the return of asylum applicants to Member States that have struggled to meet protection standards. Despite directives setting common EU standards for asylum determinations, processing, and reception, countries such as Greece, Bulgaria, and Italy have struggled to meet the needs of asylum applicants within their borders. Challenging economic conditions in these countries have also made life difficult for those who are granted protection. As the number of asylum seekers reaching Europe's borders has increased—at least 170,000 people arrived in Italy by sea in 2014, four times the number in 2013—border countries have complained that the Dublin Regulation as written could force them to shoulder an unfair share of responsibility for asylum claims.

Legal Guidelines

Recent rulings have given some of these concerns legal authority. In its 2011 decision in M.S.S. v. Belgium and Greece (M.S.S.), ECtHR found that the living conditions for asylum seekers in Greece amounted to inhuman and degrading treatment, and that shortcomings in the asylum procedure placed refugees at risk of being returned to a country where they could be persecuted (known as refoulement and illegal under international law). The decision was the first time Dublin transfers from across the European Union had effectively been suspended to a particular Member State. Returns to Greece have not resumed nearly five years after the decision. Later in 2011, CJEU also found a risk of inhuman and degrading treatment in Greece under EU law in joined cases of N.S. v. United Kingdom and M.E. v. Ireland (N.S. and M.E.). The court determined that transfers under Dublin are precluded wherever authorities “cannot be unaware” that there are “systemic deficiencies” in the asylum or reception system of a would-be receiving state. Notably, however, the court did not explicitly question Dublin's core principle that conditions in all Member States can be assumed to be equal in the absence of evidence to the contrary.

Together, the M.S.S. and N.S. and M.E. cases established the first clear legal guidelines under which Member States could be required to halt application of the Dublin Regulation. Reasoning from the N.S. and M.E. judgment was eventually incorporated into amendments to the regulation in 2013. Yet application of the judgment has so far been limited to Greece. While courts have halted Dublin transfers to other countries in cases where individuals are particularly vulnerable, the European courts have not been prepared to find that conditions in any other Member State amount to systemic deficiencies and warrant a general suspension of transfers.

Tarakhel: A Further Blow to the Dublin System

The Tarakhel case represents another chink in Dublin's armor. The decision has effectively raised the bar for Member States seeking to implement Dublin transfers to countries where evident gaps in the asylum system do not reach the level of systemic deficiencies.

The case considered the legality of the intended transfer of the Tarakhel family to Italy from Switzerland. The Tarakhels initially filed an asylum claim in Italy, where they first landed in Europe and the parents were fingerprinted before being taken to a reception center. Discouraged by the poor reception facilities for asylum applicants in Italy—which migrant-rights groups have criticized as overcrowded and at times violent, with insufficient privacy or sanitary conditions, and a large degree of criminal activity—the family chose to travel illegally to Austria and then to Switzerland, where they submitted further asylum claims. Under the Dublin rules, however, Italy had primary responsibility for determining the family's case, and Swiss authorities began procedures to return them to Italy. The Tarakhels challenged their transfer on the grounds that conditions for asylum seekers in Italy would violate their human rights, particularly due to their vulnerable situation as a family with small children.

The court found that the overall situation of asylum and reception arrangements in Italy were not so deficient as to halt all removals to that country (unlike in M.S.S.). It did, however, find that reliable information, including from the United Nations High Commissioner for Refugees (UNHCR) and other nongovernmental organizations (NGOs), raised “serious doubts as to the current capacities” of the Italian system. The court determined that asylum seekers were often left without accommodation, or held in overcrowded facilities, without privacy and potentially exposed to violence at the hands of other asylum seekers. Children were particularly vulnerable because of their dependency and specific needs.

As a result, the court concluded that the Tarakhel family's rights would be violated under Article 3 of the European Convention on Human Rights (which prohibits inhuman or degrading treatment) if Swiss authorities chose to transfer them back to Italy without first having obtained “individual guarantees” from Italian authorities that the family would be accommodated together and that conditions would be acceptable for young children.

The finding takes a step beyond the position of the court in M.S.S. in favor of individual treatment of asylum seekers, and further limits the possibility for states to apply Dublin automatically. While the Greek situation as described in M.S.S. was so extreme as to warrant a suspension of all transfers, ECtHR found that the Italian picture was more nuanced. The court took pains to describe information from Italy regarding steps taken to build its reception capacity, with an increase in the number of accommodation places from 3,000 in 2011 to 9,630 in 2014 and plans to expand further, as well as additional efforts to ensure that families with children would receive care in municipal facilities. However, the court expressed doubt about the availability of suitable accommodation and other arrangements, “in the absence of detailed and reliable information” about how the Tarakhels would be treated on return. To address this information gap, the court determined that the Swiss authorities should have sought specific guarantees from Italy regarding the planned treatment of the family. Most importantly, it found that transferring Member States must individually scrutinize the specific situation of vulnerable asylum applicants if available knowledge suggests there are potential gaps in the would-be receiving state’s system.

The Tarakhel decision has the potential to undermine the efficiency of Dublin in cases where individual guarantees could be required. The need to obtain a guarantee will likely make transfers to certain Member States more difficult (and more resource intensive) to implement. Guarantees may also be difficult to obtain in situations where a receiving country's capacity is severely strained.

Ripple Effect

The effects of the Tarakhel case can already be seen just five months after it was handed down. In the Netherlands, authorities have already implemented new procedures for transfers to Italy requiring individual guarantees that reception standards will be met, and allowing for claims to be processed in the Netherlands if obtaining a guarantee takes an unreasonable amount of time. German authorities implemented a similar procedure for families to be transferred to Italy; and the decision has also been used successfully to challenge transfers in national courts in Switzerland, Germany, and Belgium.

Looking ahead, it will be interesting to see how the ECtHR decision in Tarakhel might affect the thinking of CJEU in potential future cases relating to transfers under Dublin. In the Tarakhel decision, ECtHR has emphasized that European states have obligations that go further than refraining from transfer where there is a clearly established risk of inhuman treatment. It remains to be seen if CJEU is also prepared to step beyond its N.S. and M.E. conclusion. If it were to follow ECtHR’s logic, it could find that Member States must exercise even greater caution wherever vulnerable people are at risk in states with flawed asylum systems, even where these do not reach the level of systemic deficiencies. Such a decision would further increase the pressure on EU states to ensure that all Member States are in full compliance with their legal obligations.

The court's decision has reiterated that arrangements among states, such as Dublin, cannot be applied unquestioningly when they may expose vulnerable asylum seekers to fundamental rights violations. With all of the challenges to its effective implementation, the judgment reinforces the argument that the Dublin Regulation is distracting the European Union from the central priority of ensuring that well-functioning asylum systems operate in all Member States.

Reevaluating Dublin’s Place in the CEAS Toolbox

The Tarakhel decision has further reduced the scope for states to apply Dublin in an automatic, unquestioning way. The judgment means that Dublin’s value to states as a tool for allocating responsibility based on the regulation’s narrow criteria—and without regard for individual circumstances—has diminished still further.

The additional complexity that the judgment brings to Dublin’s application—particularly in the case of vulnerable asylum seekers—raises the question of whether Dublin, in its current form and based on its current criteria, should continue to be regarded as a “cornerstone” of the CEAS. Fewer than 4 percent of asylum applications filed in the European Union are actually transferred under Dublin procedures, and the system suffers from chronic inefficiencies such as low transfer rates, delays, and continually high rates of secondary movement among asylum seekers. Attempting to maintain the controversial Dublin system might therefore be seen as a distraction from the central task of building and sustaining effectively functioning asylum systems at the national level—or finding a more efficient mechanism for assigning responsibility for asylum claims.

EU policy leaders and Member State officials have already begun exploring possibilities for mechanisms to distribute refugees resettled through a collective EU program among Member States (for example, Austria's "Save Lives" proposal). Such tools could, in the future, be adapted for distributing responsibility for asylum claims. Other suggestions have informally proposed exploring options to share Member States' asylum processing or reception capacities at times when one Member State may find itself under particular pressure. It is still unclear, however, which if any of these ideas will receive sufficient support to move forward.

Some Member States have expressed concerns that moving away from Dublin could undermine efforts to establish a CEAS by rewarding some Member States’ failure to meet their obligations to operate fully functioning systems. In August 2014, for example, the Interior Minister of Bavaria accused Italian authorities of deliberately shirking their responsibilities under the CEAS by neglecting to fingerprint asylum applicants, many of whom may have then traveled onward to submit claims in Germany. The Tarakhel judgment may, however, have the opposite effect; the decision has drawn significant attention to Italy’s gaps, in a way that is likely to lead to greater pressure on that country to address these, and to ensure the smoother functioning of Dublin for all categories of asylum seekers, including those with vulnerabilities. The Italian government’s painstaking submissions before the court about its efforts to address gaps appear to suggest that the case has served to focus priorities upon improving Italy’s treatment of asylum seekers.

As Member States move into the next phase of CEAS development, the Tarakhel case serves to highlight the opportunities—as well as a strong imperative based on states’ interests—to consider reassessment of Dublin, while investing in further efforts to strengthen national asylum systems across the European Union. The number of asylum applicants arriving at EU borders is unlikely to decrease in the near future, and so far, preliminary Eurostat figures for 2015 show asylum applications are on track to be higher than in 2014. Ensuring that all Member States' asylum systems have the capacity to assess claims swiftly and provide for those who do receive protection will be key to meeting the growing challenge.

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