E.g., 10/20/2018
E.g., 10/20/2018

Borderline Irrelevant: Why Reforming the Dublin Regulation Misses the Point

Commentary
January 2018

Borderline Irrelevant: Why Reforming the Dublin Regulation Misses the Point

Gordon Welters/UNHCR

Policymakers across Europe are fixated on reform of the Dublin Regulation, the contentious rules that carve up responsibility for asylum claims between EU states. They see it not only as a long-term prophylactic against future fluctuations in irregular migration, but as a marker of the success or failure of solidarity in Europe overall.

Political realities alone make reform a tough task. European leaders agreed at a summit in December to complete asylum reform by the end of June. But two of the key negotiating countries—Germany and Italy—will be hamstrung by electoral politics for the next few months at least, building new coalition governments. And Hungary’s election results in April are likely to bolster Prime Minister Viktor Orban’s intransigence regarding refugees.

Successive EU presidencies have attempted to broker a common position with ever more technical solutions over the past two years, but have made little progress. After June, the European Parliament will be preparing for elections, and the European Commission will be entering the final phase of its mandate—meaning the window of opportunity will close.

Regardless, should EU policymakers be pinning their hopes on Dublin reform to solve so many ailments? There are plenty of reasons to believe that they might be asking too much of this contentious set of rules.

As previous iterations of the Dublin Regulation and other EU asylum rules have revealed, legislation alone is insufficient to manage flows. The asylum systems of several EU Member States remain chronically weak despite their paper commitments, as does cooperation between their governments. This suggests more robust methods to ensure stronger registration, reception, and adjudication processes would be more effective than legislative tinkering. This is, of course, assuming states can find the political will to uphold the principles of any reform in the first place; commitments made in the small hours in Brussels too frequently unravel at home.

Dublin is a function of the Schengen Agreement. In fact, Schengen has been the catalyst for most of the European Union’s immigration, borders, and asylum policy for several decades. Rather than doggedly working to salvage the Dublin Regulation—a core piece of a much bigger corpus of law—policymakers need to stop and consider why they regard it as so integral to European cooperation.

Doing this inevitably leads to harder, broader questions. Specifically, if Schengen were no longer in existence, what would be the rationale for continuing to build the Common European Asylum System? And, without Dublin, is a sustainable Schengen framework possible?

Schengen-Free Zone

If states cannot rebuild mutual trust to uphold the basic commitments they have made, it is hard to see Schengen persisting in its current form. In some regards, Schengen has never been more fragile. At the very minimum, the temporary border controls that have been erected within Schengen over the last two years will quietly become permanent, and other ad hoc additions may be put in place as border concerns increase elsewhere in the European Union. Over time, those countries that still enjoy strong mutual trust—notably in Northern Europe—may decide to reinvent the basis of their own cooperation, even outside the current boundaries of EU law. While this seems radical, quiet conversations of this type are already taking place.

Without Schengen, many of the asylum goals articulated by the Commission would become less relevant. For example, the Commission’s attempts to improve convergence between national asylum systems in terms of standards of protection, processes, and recognition rates would slip down the agenda. While this may have an impact on those countries that are still attempting to meet the existing standards set out in EU legislation, the reality remains that Schengen and Dublin have proved an insufficient incentive for countries to invest in convergence.

But equally, without Schengen, national asylum systems would be unlikely to collapse in most EU countries. European governments are committed to protecting those in need not only at EU level, but also at international level through the Geneva Convention. Those states that willingly adhere to international rules would almost certainly continue to do so; reluctant states would be likely to continue down the path that they are already noisily heading down.

What the European Union Should Really Be Doing

Rather than placing the emphasis on responsibility-sharing of asylum claims per se, the EU conversation needs to be reframed around several more pressing concerns:

  • The long-term value of Schengen for Europe. Repeatedly asking Visegrad states to uphold their asylum responsibilities has born little fruit thus far. Asking those same states to consider their interests in Schengen is essential. Greece has already been de facto excluded from many of the benefits of Schengen, and Romania and Bulgaria face an uphill struggle in convincing their fellow governments to double down on Schengen enlargement while its overall sustainability is in question. The value for these states is clear. It should be made clearer for others, emphasizing the importance of asylum as part of a grander bargain on mobility.
  • Building national asylum capacity. Finding ways to ensure that states meet their existing obligations, and build contingent capacity for future uncertainties in flow will be essential whether or not Dublin reform is realised. Without such capacity, responsibility sharing remains in name only.
  • Building stronger support for the Common European Asylum System. This involves bolstering support for those states that face larger numbers of arriving asylum seekers, and greater turbulence at their borders. The experience of hotspots (an initiative through which EU agencies and Member States offered Greece and Italy front-line operational assistance) needs urgent evaluation, alongside assessments of the fast-track procedures with which some EU Member States have been experimenting. Identifying all arrivals at the earliest opportunity, and finding ways to speed up access to protection status for those in need and return for those deemed not in need, will be key to the future credibility of any EU cooperation on asylum and immigration.

Rather than focus on how to divide responsibility for asylum claims, the European Union needs to look more broadly at what is at stake. Should Schengen erode, reshape, or collapse entirely, the impact on the daily lives of many EU citizens would be immediate. Newly arrived immigrants could become handy scapegoats. But assuming Dublin reform will be its saviour overestimates the power of this piece of legislation to solve problems that are more closely linked to politics and experience on the ground.

Dublin reform is both essential and irrelevant. Without agreement on Dublin, Schengen cannot survive, but Schengen cannot survive on Dublin alone. And neither can survive without trust.