On 23 September 2020, the European Commission adopted the New Pact on Migration and Asylum following consultations with the European Parliament, Member States and various stakeholders. The New Pact covers all the different elements needed for a comprehensive approach to migration. In particular, the New Pact recognises that no Member State should shoulder a disproportionate responsibility and that all Member States should contribute to solidarity on a constant basis.
Member State responsible for an asylum application - Dublin Regulation
Every single asylum application lodged within EU territory needs to be examined - each Member State must be able to determine if and when it is responsible for handling an asylum claim.
The objective of the Dublin III Regulation is to ensure quick access to the asylum procedures and the examination of an application on the merits by a single, clearly determined EU country. The Regulation establishes the Member State responsible for the examination of the asylum application.
The criteria for establishing responsibility are, in hierarchical order:
- family considerations,
- recent possession of visa or residence permit in a Member State and
- whether the applicant has entered EU irregularly, or regularly.
Main elements of the current Dublin Regulation
The Dublin III Regulation entered into force in July 2013. It contains sound procedures for the protection of asylum applicants and improves the system’s efficiency through:
- an early warning, preparedness and crisis management mechanism, geared to addressing the root dysfunctional causes of national asylum systems or problems stemming from particular pressures,
- a series of provisions on protection of applicants, such as compulsory personal interview, guarantees for minors (including a detailed description of the factors that should lay at the basis of assessing a child's best interests) and extended possibilities of reunifying them with their relatives,
- the possibility for appeals to suspend the execution of the transfer for the period when the appeal is pending, together with the guarantee of the right for a person to remain on the territory pending the decision of a court on the suspension of the transfer pending the appeal,
- an obligation to ensure legal assistance free of charge upon request,
- a single ground for detention in case of risk of absconding; strict limitation of the duration of detention,
- the possibility for asylum seekers that could in some cases be considered irregular migrants and returned under the Return Directive, to be treated under the Dublin procedure - thus giving these persons more protection than the Return Directive,
- an obligation to guarantee the right to appeal a transfer decision before a court or tribunal and
- greater legal clarity of procedures between Member States - e.g. exhaustive and clearer deadlines.
The entire Dublin procedure cannot last longer than 11 months to take charge of a person, or 9 months to take him/her back (except for absconding, or where the person is imprisoned).
Evaluation of the Dublin III Regulation
In June 2015, the Commission committed studies on the external evaluation on the implementation of the Dublin III Regulation and an evaluation report in view of the reform of the Dublin system as foreseen in the European Agenda on Migration:
Towards a reform of the CEAS: principle of solidarity and fair sharing of responsibility
The large-scale, uncontrolled arrival of migrants and asylum seekers in 2015 put a strain not only on many Member States’ asylum systems, but also on the Common European Asylum System as a whole. The volume and concentration of arrivals exposed in particular the weaknesses of the Dublin System, which establishes the Member State responsible for examining an asylum application based primarily on the first point of irregular entry.
Negotiating new asylum and migration rules
For these reasons, in 2016, the Commission proposed to revise and replace the current asylum instruments to better manage migration flows and offer adequate protection to those in need, in line with the approach set out in the European Agenda for Migration.
The European Parliament adopted its negotiation mandate on 16 November 2017, which included a proposal to replace the criterion of first entry and the default criterion of first application with an allocation system, where the applicant would be able to choose to be allocated to one of the four Member States with the fewest applications. On the side of the Council, after intense, yet unsuccessful negotiations the Member States were unable to agree on a common approach and the negotiations stalled. Based on the outcome of the discussions, as well as taking into consideration the new migratory situation in 2020, the Commission is proposing to replace the Dublin III Regulation with a new Regulation on Asylum and Migration Management.
Proposing a new Regulation on Asylum and Migration Management
The new proposal establishes a common framework that contributes to the comprehensive approach to migration management based on new forms of solidarity between all the Member States and through integrated-policy making in the field of asylum and migration management, including both their internal and external components.
- The Regulation is based on the principle of solidarity and fair sharing of responsibility. It recognises that, the challenges of migration management, ranging from ensuring a balance of efforts in dealing with asylum applications to ensuring a quick identification of those in need of international protection or effectively returning those who are not in need of protection, should not have to be dealt with by individual Member States alone, but by the EU as a whole.
- It introduces a solidarity mechanism for situations of migratory pressure, under which all Member States would have the obligation to contribute, while retaining the possibility to choose among different forms of solidarity. A solidarity mechanism to address the specificities of search and rescue operations is also proposed. This builds on voluntary contributions which may become mandatory if the voluntary contributions are insufficient.
- Different forms of solidarity are listed in the regulation: from relocation of asylum seekers from the country of first entry to taking over responsibility for returning individuals with no right to stay, or various forms of operational support.
- A new common framework is included for a more structured and common European approach to search and rescue, respecting the national competence.
- The regulation streamlines the rules with regard to the responsibility for examining an application for international protection. Among other elements, it protects asylum seekers’ best interests by providing stronger guarantees for unaccompanied minors, extending the definition of ‘family members’, and modifies the rules related to evidence to make the responsibility criteria for family reunification more effectively applicable. It also introduces an additional criterion for determining responsibility based on the possession of a diploma or qualification. Finally, it improves or removes elements that facilitate abuse of the system to determine the Member State responsible to deal with an asylum application and makes the system more effective.
- Puts in place a system of governance and preparedness, underpinned by national strategies of Member States, in order to ensure that sufficient capacities are in place to effectively manage and implement asylum and migration policies.
Proposing the Crisis and Force Majeure Regulation
Together with the Asylum and Migration Management Regulation, the New Pact on Migration and Asylum proposed a new instrument to complement the Common European Asylum System and make it more resilient to extraordinary situations.
The proposed Crisis and Force Majeure Regulation would ensure that Member States are able to address situations of crisis and force majeure in the field of asylum and migration within the EU.
In short, the proposed Regulation provides:
- a simplified procedure and shortened timeframes for triggering the compulsory solidarity mechanism foreseen for situations of pressure in the Regulation on Asylum and Migration Management,
- wider scope for relocation to include all applicants, beneficiaries of international protection, including those granted immediate protection, and irregular migrants,
- possibility for Member States in a situation of crisis to request derogations from the applicable rules as concerns borders, asylum and return and
- in a situation of crisis, the possibility for Member States to grant immediate protection to a clearly defined group of displaced third-country nationals who are subject to a high risk of indiscriminate violence due to an armed conflict and who are unable to return to their country of origin.