The Dublin Regulation: Is The Halt Nigh? Where Should Unaccompanied Children Utilise For Asylum?

Steve Peers*

Two recent developments have got raised argument equally regards the EU’s Dublin III Regulation, the laid of rules which determines inward which Member State asylum-seekers must brand their asylum application. First of all, a British judgment yesterday stated that the UK of Britain in addition to Northern Republic of Ireland was responsible for the asylum claims past times unaccompanied children inward French Republic (in especial the Calais ‘Jungle’), who have got a menage unit of measurement fellow member inward the UK. Secondly, a press report indicated that the Commission is planning to suggest a telephone substitution overhaul of the Dublin rules inward the close future. Both developments have got alarmed to a greater extent than or less commentators, but thrilled others. I volition examine the legal in addition to political context of each of them inward turn.

Unaccompanied minors

Many depict the Dublin III Regulation equally allocating responsibleness to the ‘first Member State’ which an asylum-seeker entered. This is truthful for most asylum-seekers; technically it’s the start Member State which they entered without authorisation which has responsibility, but this amounts to the same thing. However, in that location are exceptions. In particular, since the real start version of the Dublin rules (the Dublin Convention), in that location have got been special rules which apply where the asylum-seeker has a menage unit of measurement fellow member inward i Member State. These were expanded inward the Dublin II Regulation, alongside other things to add together special rules where the asylum-seeker is an unaccompanied minor. Those rules were altered a niggling farther inward the Dublin III Regulation.

What are the rules for unaccompanied children? The priority is to house them inward the same Member State equally a menage unit of measurement member. First of all, the Regulation gives responsibleness to a Member State where they have got a ‘family member’ (defined equally a parent, husband or child) or a ‘sibling’ who is ‘legally present’. Secondly, it gives responsibleness to a Member State where they have got a ‘relative’ (defined equally an adult aunt, uncle or grandparent) who is ‘legally present’. In this minute case, in that location are farther conditions: in that location must locomote an private evidence to cheque that the relative is able to select assist of the child, in addition to the allotment of responsibleness must locomote inward the best interests of the child.

In the absence of a menage unit of measurement fellow member or relative, an unaccompanied pocket-sized – dissimilar whatever other asylum-seeker – inward effect has a pick of which Member State to apply in. The CJEU has confirmed (in the illustration of MA) that this applies fifty-fifty later the kid has already applied inward i Member State. Influenza A virus subtype H5N1 subsequent proposal to confirm in addition to extend this dominion (which I discussed here) seems to locomote blocked for now. But this dominion was non at number inward yesterday’s judgment.

Despite the consternation it caused inward to a greater extent than or less quarters, that judgment is primarily straightforward. Once it’s clear that the asylum-seeker is a kid who has menage unit of measurement or relatives equally defined past times the European Union rules inward a especial Member State, the kid must locomote transferred to that Member State to apply for asylum there. Sometimes it’s difficult to evidence the historic menstruation of the kid or the link to menage unit of measurement or relatives, but it doesn’t seem similar that was the illustration hither (it’s difficult to locomote certain, since the total text of the judgment is non reported yet).

One of the asylum-seekers inward the illustration was non a child, but was dependent on a younger blood brother due to the effects of trauma suffered inward Syria. His province of affairs was covered past times a divide clause inward the Dublin III Regulation which says that ‘dependent persons’ should remain with a child, sibling or parent who tin select assist of them. This is a binding dominion (‘shall unremarkably give-up the ghost along or convey together’), equally established inward the CJEU judgment inward K in addition to confirmed inward the preamble to the Dublin III Regulation.  

Why was the judgment controversial? First of all, in that location is a especial legal point: the rules inward the Regulation entirely select effect for those who have got applied for asylum, next which the Member State where they have got applied is obliged to contact the responsible Member State in addition to conform for the transfer to that State. The judgment appears to circumvent that process, exactly requiring the UK of Britain in addition to Northern Republic of Ireland to acknowledge the 4 plaintiffs despite the absence of whatever activeness past times the French authorities. It appears from press reports that at to the lowest degree i of the applicants did have got to a greater extent than or less proof of having applied for asylum inward France, but it is non clear if all of them did. This volition in all probability locomote the footing of an appeal which the UK of Britain in addition to Northern Republic of Ireland authorities powerfulness brand – although the applicants volition locomote allowed into the UK of Britain in addition to Northern Republic of Ireland inward the meantime.

On the human face upward of it, this is a valid legal objection: the proper procedures were non followed. Having said that, the judgment is indisputably consistent with the noun intention of the drafters of the law: to ensure that children (and dependent persons) who apply for asylum are with people who tin aspect later them. Since all the plaintiffs are Syrian, in that location seems niggling dubiety that they intend to apply for asylum (and possibly had done already) – or that their application volition locomote successful (the refugee recognition charge per unit of measurement for Syrians beingness over 90%). 

More fundamentally, the plaintiffs alleged that the French authorities did non (or would not) physical care for their asylum applications. If this is true, the French authorities is inward breach of European Union law, in addition to it is arguable that its breach should non locomote allowed to stand upward inward the agency of applying the rules on asylum responsibility. But this delineate of declaration raises complex legal questions close how to evidence such error in addition to who has the burden of proving it – in addition to whether such a error justifies a procedural shortcut at all. It would locomote best if these issues are sent to the CJEU to clarify (it tin purpose an emergency physical care for to create upward one's heed on cases involving children). That would likewise arrive to a greater extent than obvious that these issues do non exactly delineate of piece of occupation organisation the UK of Britain in addition to Northern Republic of Ireland in addition to France: in that location may locomote unaccompanied children seeking asylum inward Hellenic Republic who seek to bring together menage unit of measurement or relatives inward Sweden, for instance.

Secondly, in that location are political objections on the grounds that UK of Britain in addition to Northern Republic of Ireland immigration constabulary has been infringed. It should locomote noted that the UK of Britain in addition to Northern Republic of Ireland chose to opt inward to the Dublin III Regulation – patch it opted out of almost every other European Union immigration in addition to asylum constabulary of the concluding twelve years. The attraction for the UK of Britain in addition to Northern Republic of Ireland was the possibility that to a greater extent than or less asylum-seekers could locomote sent dorsum to other Member U.S. of A. – which they are. But the rules are reciprocal: sometimes they are fountain to hateful that the UK of Britain in addition to Northern Republic of Ireland has to select asylum-seekers from other Member States. In practice, most or all such cases volition involve menage unit of measurement members. And quite frankly, anyone who argues that in principle an unaccompanied kid who is seeking asylum from state of war or persecution should remain inward squalor inward Calais or Dunkirk, rather than bring together a menage unit of measurement fellow member legally inward the UK of Britain in addition to Northern Republic of Ireland who tin aspect later him or her, is devoid of basic humanity.

What is the impact of the ruling? It cannot touching on anyone who has non got menage unit of measurement members inward the UK, dependent acre to the atmospheric condition mentioned above. In to a greater extent than or less cases, it volition locomote difficult to evidence that the applicant is a child, or that the individual they seek to bring together is a menage unit of measurement member. The procedural aspects withal postulate to locomote clarified. But for anyone else, equally I discussed concluding summer, the French authorities quite rightly remains responsible for dealing with their asylum applications in addition to providing humane living conditions, or for returning those who have got non applied for asylum or whose applications have got failed to their province of origin.

Plans to improve the Regulation

The key characteristic inward the reported plans to improve the Regulation is the intention to supervene upon the ‘first country’ dominion with a laid of criteria allocating responsibleness to Member U.S. of A. based on to a greater extent than or less form of ‘fair shares’ principle. Presumably to a greater extent than or less rules allocating responsibleness based on menage unit of measurement members volition remain, possibly with amendments. No farther details are known, in addition to it should non locomote forgotten that the Commission proposal would have got to locomote agreed past times both the European Parliament in addition to the Council. But I volition focus on ii key issues: the feasibility of the novel system, in addition to the impact on the UK.

First, the feasibility has to locomote assessed inward calorie-free of the EU’s existing rules on ‘relocation’ of to a greater extent than or less asylum-seekers who reached Hellenic Republic or Italy. Two measures were adopted inward September, in addition to I discussed them inward especial at the time. Four months on, in that location are meaning problems applying these rules inward practice, equally the Commission’s regular reports hollo for (see likewise the UNHCR’s assessment). Influenza A virus subtype H5N1 tiny fraction of the asylum-seekers have got been relocated, due to the tiresome evolution of ‘hotspots’ for registering applications inward Hellenic Republic in addition to Italy, equally good equally the reluctance of most Member U.S. of A. to have asylum-seekers. Some Member U.S. of A. have got flat-out refused to apply the system, in addition to Slovakia in addition to Republic of Hungary have got challenged its legality (see the analysis of Slovakia’s challenge past times Zuzana Vikarska here). The ‘hotspots’ are arguably non properly considering the asylum applications of many asylum-seekers who are non due for relocation (see analysis past times Frances Webber here). While the Commission has proposed already to improve the Dublin III Regulation to brand emergency relocation rules permanent, the Member U.S. of A. are objecting to this (see the leaked tape of discussions here).

Overall, then, the relocation arrangement is obviously non working. It is thence difficult to run across why the Commission could imagine that it could somehow operate if it became the general rule, rather than the exception equally at introduce (the relocation Decisions entirely apply to 160,000 asylum-seekers over ii years, a little minority of the numbers that powerfulness locomote expected over that time).

Secondly, the UK, equally already noted, has an opt-out from European Union immigration in addition to asylum law. This opt-out applies likewise to amendments to legislation that the UK of Britain in addition to Northern Republic of Ireland already takes business office in. Indeed, the UK of Britain in addition to Northern Republic of Ireland has opted out of most of the ‘second phase’ of European Union asylum legislation, fifty-fifty though it opted inward to all the ‘first phase’ measures. So it is flagrantly non truthful to say that the UK of Britain in addition to Northern Republic of Ireland could locomote ‘forced to select to a greater extent than refugees’ nether whatever novel proposal. It could exactly opt out.

However, that opt out could have got consequences. The Protocol on the UK of Britain in addition to Northern Republic of Ireland opt out says that if the opt out from an amendment to an existing constabulary inward which the UK of Britain in addition to Northern Republic of Ireland participates makes the existing constabulary ‘inoperable for other Member U.S. of A. or the Union’, that existing constabulary tin locomote revoked equally regards the UK. This is a high threshold, in addition to this clause has never been invoked to date. The UK of Britain in addition to Northern Republic of Ireland was able to opt out of the relocation decisions, in addition to of the recent proposal to improve Dublin III to add together a permanent emergency system, without triggering this clause (as I discussed here). However, a consummate overhaul of the Dublin system, replacing the marrow rules on the allotment of asylum responsibility, is probable to trigger it.

In that case, the UK of Britain in addition to Northern Republic of Ireland would human face upward a choice: (a) opt inward to the novel rules, in addition to human face upward to a greater extent than asylum-seekers equally a result, or (b) opt out of the novel rules, in addition to human face upward to a greater extent than asylum-seekers because the existing Dublin rules would locomote terminated for the UK. For those (like the UK of Britain in addition to Northern Republic of Ireland government) who would non similar to run across to a greater extent than asylum-seekers, neither alternative is appealing. But it is probable that in that location would locomote a far smaller increment inward asylum-seekers if the UK of Britain in addition to Northern Republic of Ireland opts out. Recent statistics collated past times Open Europe suggest that the UK of Britain in addition to Northern Republic of Ireland entirely returns close 700 asylum-seekers a twelvemonth to other Member U.S. of A. pursuant to the electrical flow Dublin Regulation inward recent years; in addition to yesterday’s ruling may hateful that this may have got to locomote offset against flows inward the other direction. On the other hand, i guess inward The Independent suggests that a ‘fair shares’ dominion could hateful that the UK of Britain in addition to Northern Republic of Ireland is responsible for 85,000 asylum-seekers a year.

Finally, what would locomote the impact of ‘Brexit’ on asylum-seeker numbers? Since the electrical flow Dublin rules are internal European Union legislation (they ceased to select the shape of a ‘Convention’ dorsum inward 2003), the UK of Britain in addition to Northern Republic of Ireland would no longer locomote covered past times them equally from Brexit Day. The European Union could sign a ‘Dublin’ treaty with the UK, but I rather dubiety it would do so, for the reasons I discussed here). So Brexit would increase the numbers of asylum-seekers inward the UK, assuming that the electrical flow Dublin rules are in addition to so withal inward force, in addition to withal outcome inward a internet removal of asylum-seekers from the UK. If in that location are novel Dublin rules, in addition to the UK of Britain in addition to Northern Republic of Ireland has opted out of them, in addition to so Brexit would have got no effect. Brexit would entirely reduce the number of asylum-seekers if the Dublin rules are withal inward forcefulness in addition to have got resulted inward a internet inflow of asylum-seekers to the UK.  In whatever event, Brexit would hateful that unaccompanied children seeking asylum are left lone inward other Member U.S. of A. rather than joining parents or other menage unit of measurement members who are legally inward the UK of Britain in addition to Northern Republic of Ireland in addition to able to aspect later them.

Barnard & Peers: chapter 26

JHA4: chapter I.5

Photo: children inward the Calais ‘jungle’

Photo credit: DailyMail.co.uk

 *Disclosure: I have got done to a greater extent than or less operate equally a sub-contractor for a contractor advising on the evaluation of the Dublin III Regulation in addition to the impact assessment on its replacement. However, patch I am fountain to confidentiality equally regards that work, I was paid for my independent advice in addition to remain gratis to limited my views on the electrical flow or futurity Dublin system. 

Share this post