A recent European Court of Justice judgement highlights the need to reform the Common European Asylum System just as decisionmakers struggle to overcome divisions in the European Parliament and Council. Changes to the so-called Dublin Regulation, which defines which member state is responsible for examining an asylum claim, are particularly difficult to find agreement on.

The Shiri case

In the court case, Majid Shiri, an Iranian asylum-seeker who first entered the EU in Bulgaria then travelled onward to Austria and lodged an asylum application there. The Austrian authorities refused his application, as Bulgaria was responsible for his asylum claim according to the Dublin Regulation. The Bulgarian authorities accepted Austria’s request to transfer Shiri back to Bulgaria, but failed to do so within the 6-month timeframe foreseen by Dublin. Although Bulgaria agreed to take Shiri back after the deadline expired, Shiri appealed, stating that Austria had now become responsible for his asylum claim. The Court agreed, clearly ruling that responsibility for examining an asylum seekers’ application is automatically transferred to the state that he or she is already in following the expiry of the transfer period, irrespective of when the transfer decision was adopted.

The Commission’s reform proposal

This judgement is sure to irritate many member states seeking to avoid responsibility for asylum claims, and may cause governments to push even harder for a complete overhaul of Dublin rules. Current negotiations are focused on the European Commission’s reform proposal published last year, in which member state responsibility for asylum seekers would remain stable, with no expiry dates. This modification is highly controversial, as it would mean that an asylum seeker’s first country of entry in the EU would remain responsible for his or her asylum application indefinitely, even if that person left the country for an extended period of time.

North vs. south, east vs. west

The Commission’s reform proposal is meant to close a loophole through which an asylum-seeker could technically circumvent Dublin rules by absconding for at least 18 months in another member state. However, it would likely strain the asylum systems of member states on the EU’s external border like Bulgaria, Greece and Italy if it is not counterbalanced by other means. A clear split is therefore visible between southern European member states that want to retain time limits, and northern European ones that would rather see them disappear.

The only way to avoid overloading frontline states would be a refugee relocation mechanism, which exposes even stronger divisions between new and old member states. Western European member states are generally amenable to the idea, while eastern European member states are strongly opposed. Eastern European resistance to relocation has provoked some exasperated calls for financial penalties or even the reduction of structural funds for countries that refuse to accept relocated refugees. However, such an approach only exacerbates tensions and would hardly lead to a compromise acceptable to all. Instead, financial incentives for accepting refugees are being discussed at the negotiating table.  

What kind of solidarity?

The big question facing the EU on asylum reform is precisely how much and what kind of solidarity member states should be required to offer. After the Visegrad countries (Poland, Slovakia, Czech Republic and Hungary) floated the concept of ‘flexible solidarity’ last year, essentially a watered-down relocation scheme with opt-outs, current negotiations are being conducted under the ‘effective solidarity’ label. A fully proportional relocation mechanism is unlikely to be decided, and that may not even be the best outcome. As the relatively low number of relocated refugees under a two-year temporary relocation mechanism launched in 2015 demonstrates, member states will drag their feet in implementing a scheme they do not like. Likewise, refugees will use their feet and simply leave countries where they do not feel welcome.

The only solution: compromise

A compromise solution is urgently needed in order for member states to cope with a level of irregular arrivals that does not appear set to decrease substantially in the future. The current Dublin system was not designed to handle such large numbers; it was agreed at a time when receiving over a million refugees in one year was unimaginable. As a result, asylum rules are not sustainable in their current form. The administrative burden of dealing with Dublin transfers has gone out of hand, with only a fraction of requests actually being carried out every year.

The European Court of Justice’s judgement in the Shiri case confirms the original logic of Dublin, namely to motivate member states to maintain speedy and efficient asylum procedures. Yet this approach cannot work at a time of record arrivals and simultaneous budget cuts in crisis-stricken member states. The ongoing Dublin reform process must take these realities into account. The final result of negotiations will need to strike a delicate balance between greatly varying member state interests, capacities and perspectives. That is no easy task, but equally difficult negotiations have been conducted successfully in Brussels before.

Contact: Marco Funk is a Policy Officer for Justice and Home Affairs at the Friedrich-Ebert-Stiftung EU Office in Brussels.