Steve Peers*

Recent events have sparked debate concerning the EU’s Dublin III Regulation, which dictates where asylum seekers must apply for asylum within the EU. A British court ruled that the UK is responsible for the asylum claims of unaccompanied children in France, particularly those in Calais, if they have family in the UK. Additionally, a press release suggested the Commission may soon propose significant changes to the Dublin rules. These developments have drawn both praise and criticism. This piece will examine the legal and political implications of each.

Unaccompanied minors

The Dublin III Regulation is often described as assigning responsibility to the first EU country an asylum seeker enters. This is generally true, with the technicality being it’s the first country they enter without authorization. However, exceptions exist, particularly for asylum seekers with family members in specific Member States. These exceptions have been present since the first iteration of the Dublin rules (the Dublin Convention) and were expanded in the Dublin II Regulation, including provisions for unaccompanied minors. The Dublin III Regulation further refined these rules.

The rules prioritize placing unaccompanied children with family members in another Member State. Firstly, responsibility falls on the Member State where a “family member” (parent, spouse, or child) or “sibling” is “legally present.” Secondly, responsibility lies with the Member State where a “relative” (adult aunt, uncle, or grandparent) is “legally present.” This second case has additional requirements: an individual assessment confirming the relative’s ability to care for the child and ensuring the placement serves the child’s best interests.

Unlike other asylum seekers, unaccompanied minors without family or relatives essentially choose where to apply. This right, confirmed by the CJEU in the MA case, applies even after a child has applied in another Member State. A proposal to solidify and expand this rule, previously discussed here, appears stalled. However, this specific rule wasn’t the focus of yesterday’s judgment.

Despite some strong reactions, the judgment is relatively straightforward. Once a child seeking asylum is confirmed to have family or relatives, as defined by EU rules, in a specific Member State, they must be transferred there to apply for asylum. While verifying age and family ties can be difficult, this doesn’t appear to have been a factor in this case (though the full judgment is unpublished).

One individual in the case, while not a child, depended on a younger brother due to trauma experienced in Syria. This situation fell under a separate Dublin III Regulation clause mandating that “dependent persons” remain with a caring child, sibling, or parent. This is a binding rule ("shall normally keep or bring together"), as established by the CJEU judgment in K, and reinforced by the Dublin III Regulation’s preamble.

The judgment’s controversial nature stems from several factors. Firstly, a legal technicality exists: the Regulation’s rules only apply after an asylum application. At that point, the receiving Member State must contact the responsible Member State to arrange the transfer. The judgment seems to bypass this, simply requiring the UK to admit the four plaintiffs without action from French authorities. Press reports suggest at least one applicant had proof of application in France, but this is unclear for all. This likely forms the basis for a potential UK government appeal – though the applicants can enter the UK meanwhile.

While legally valid, this objection disregards the lawmakers’ intent: ensuring children (and dependents) seeking asylum are with caregivers. As all plaintiffs are Syrian, their intent to apply for asylum (and potential prior application) is evident, as is their likely success (Syrian refugee recognition rates exceed 90%).

Furthermore, the plaintiffs claimed the French government failed (or would fail) to process their applications. If true, this constitutes a breach of EU law, and arguably shouldn’t prevent applying asylum responsibility rules. However, this raises complex legal questions about proving such fault, burden of proof, and justification for procedural shortcuts. CJEU clarification is recommended (using an expedited process for child-related cases), highlighting that this issue transcends the UK and France: unaccompanied children in Greece might seek to join family in Sweden, for example.

Secondly, political objections cite infringement on UK immigration law. Notably, the UK opted into the Dublin III Regulation while opting out of almost all other EU immigration and asylum laws in the past twelve years. The UK saw the potential benefit of transferring asylum seekers to other Member States – which happens. However, the rules are reciprocal: sometimes, the UK must accept asylum seekers from other Member States. In practice, this largely involves family members. Frankly, arguing that an unaccompanied child fleeing war or persecution should remain in squalor in Calais or Dunkirk instead of joining family legally in the UK is inhumane.

The ruling’s impact is limited. It doesn’t apply to those without family in the UK meeting the specified criteria. Proving age or family ties will be difficult in some cases, and procedural aspects remain unclear. However, for all others, as discussed last summer, the responsibility remains with the French government to process asylum applications, provide humane living conditions, or return those who haven’t applied or whose applications failed to their home countries.

Plans to amend the Regulation

The proposed Regulation amendments aim to replace the “first country” rule with criteria allocating responsibility based on a “fair shares” principle, likely retaining and potentially modifying some family-based allocation rules. Details are scarce, and the Commission’s proposal requires European Parliament and Council approval. This analysis will focus on two key issues: the system’s feasibility and the impact on the UK.

Firstly, feasibility must be considered in light of existing EU rules on relocating asylum seekers arriving in Greece or Italy. These measures, adopted in September and discussed in detail here, have encountered significant practical challenges after four months, as highlighted in the Commission’s regular reports (see also the UNHCR assessment). Relocation numbers are minimal due to slow “hotspot” development for registration in Greece and Italy, and Member State reluctance to receive asylum seekers. Some Member States outright refuse to participate, while Slovakia and Hungary challenge the system’s legality (see Zuzana Vikarska’s analysis of Slovakia’s challenge here). Arguably, “hotspots” aren’t properly assessing applications from those not eligible for relocation (see Frances Webber’s analysis here). While the Commission proposed amending Dublin III to make emergency relocation permanent, Member States oppose this (see the leaked discussion record here).

The relocation system is clearly failing, making it difficult to understand why the Commission believes it would work as a general rule rather than the current exception (the relocation decisions apply only to 160,000 asylum seekers over two years, a small fraction of anticipated numbers).

Secondly, the UK maintains its opt-out from EU immigration and asylum law, extending to amendments of laws it participates in. The UK opted out of most “second phase” asylum legislation after opting into the “first phase.” Claims that the UK could be “forced to accept more refugees” under new proposals are categorically false. The UK can opt out.

However, this opt-out has potential ramifications. The UK opt-out Protocol states that if opting out of an amendment renders an existing law “inoperable for other Member States or the Union,” it can be revoked for the UK. This is a high threshold, never invoked thus far. The UK opted out of the relocation decisions and the recent proposal to add a permanent emergency system to Dublin III without triggering this clause (as discussed here). However, a complete Dublin overhaul, replacing core asylum responsibility allocation rules, would likely trigger it.

The UK would then face a choice: (a) opt into the new rules, resulting in more asylum seekers, or (b) opt out and face more asylum seekers due to existing Dublin rules termination. Neither option is appealing for those wanting to limit asylum seeker numbers, like the UK government. However, opting out might lead to a smaller increase. Open Europe statistics suggest the UK only returns around 700 asylum seekers annually to other Member States under current Dublin rules; yesterday’s ruling might offset this with incoming flows. Conversely, The Independent estimates “fair shares” could make the UK responsible for 85,000 asylum seekers annually.

Lastly, what would “Brexit” mean for asylum seeker numbers? As current Dublin rules are internal EU law (no longer a “Convention” since 2003), they would cease to apply to the UK post-Brexit. While the EU could establish a new “Dublin” treaty with the UK, this is unlikely, as discussed here). Therefore, assuming current Dublin rules remain and result in net asylum seeker outflow from the UK, Brexit would increase UK asylum seeker numbers. If new Dublin rules exist and the UK opts out, Brexit would have no effect. Brexit would only reduce asylum seeker numbers if existing Dublin rules result in net inflow to the UK. Regardless, Brexit would mean unaccompanied children seeking asylum would remain separated from parents or family legally in the UK who could care for them.

Barnard & Peers: chapter 26

JHA4: chapter I.5

Photo: children in the Calais ‘jungle’

Photo credit: DailyMail.co.uk

*Disclosure: I have provided subcontracting work for a contractor advising on the evaluation of the Dublin III Regulation and the impact assessment of its replacement. While bound by confidentiality regarding that work, my independent advice was compensated, and I remain free to express my views on the current and future Dublin system.