Professor Steve Peers, Royal Holloway, University of London
Photo credit: Ggia, via Wikimedia Commons
(last updated 10 June 2024: changed text marked by an asterisk)
Shortly before Christmas 2023, the European Parliament and the Council finalized an agreement on five crucial components of EU asylum law. These components address asylum procedures, the ‘Dublin’ system for determining responsibility for asylum applications, the supporting ‘Eurodac’ database, migrant/asylum seeker screening, and crisis derogations. These laws joined previously approved legislation on refugee and subsidiary protection qualification, reception conditions for asylum seekers, and the resettlement of non-EU refugees, forming a comprehensive package of new or revised EU asylum laws. Formally adopted on May 14, 2024, the package was published in the EU Official Journal on May 22, 2024.
This blog post series, the sixth in a series based on an upcoming article, examines these new laws. This post focuses on the Regulation on Asylum and Migration Management (referred to here as the ‘revised Dublin Regulation’ or ‘2024 Dublin Regulation’ for brevity). Previous posts addressed the new qualification Regulation, the revised reception conditions Directive, the new Regulation on refugee resettlement, the revised Regulation on Eurodac, the Regulation on migrant screening, the Regulation on asylum procedures, and the crisis Regulation.
The 2024 package complements the 2021 Regulation revising the EU asylum agency’s powers, which was adopted earlier. (For a broader understanding of EU asylum law, refer to the relevant chapter in the latest edition of “EU Justice and Home Affairs Law”).
The 2024 Dublin Regulation: Context
Following an unsuccessful attempt to establish rules for asylum-seeker responsibility within the Council of Europe, a group of EU Member States agreed on such rules within the Schengen Convention in 1990, later extending them to all Member States via the Dublin Convention that same year. Integrated into the development of the Common European Asylum System (CEAS), the Dublin system saw the adoption of the ‘Dublin II Regulation’ in 2003 and the ‘Dublin III Regulation’ in 2013. During the ‘refugee crisis,’ two emergency decisions on asylum-seeker ‘relocation’ (transferring some from overburdened frontline states like Italy and Greece to other Member States) were implemented but expired in 2017. Case law pertaining to the Dublin II and III Regulations remains relevant to the 2024 Regulation, except where the latter introduces textual modifications.
While the UK and Ireland initially opted into the Dublin II and III Regulations, the UK’s exit from the EU (Brexit) ended its participation in the Dublin system. Although Ireland opted out of the 2024 Dublin Regulation, it has declared its intent to opt in post-adoption. Denmark, though opted out of the Regulation, participates in the Dublin system through a treaty with the EU. Similar treaties exist with Norway and Iceland, and subsequently Switzerland and Liechtenstein, paralleling their association with Schengen.
The process leading to the 2024 Regulation, initiated by a 2016 proposal, faced difficulties. Consequently, a new proposal was presented in 2020 as part of the relaunched EU Immigration and Asylum Pact.
Substance of the Regulation
The new Dublin rules, along with most new asylum laws (excluding the resettlement Regulation), will be implemented on July 1, 2026. However, certain provisions will take effect earlier. Notably, the Commission will deliver a ‘common implementation plan’ to the Council within three months of the Regulation’s entry into force (with plans to issue it in June), while Member States must produce national plans by December 12, 2024.
In addition to modifying the existing Dublin rules on asylum application responsibility and the transfer process for asylum-seekers, the 2024 Regulation introduces a framework for EU asylum and immigration management and a solidarity mechanism for sharing application burdens among Member States. This post will examine these aspects in turn, concluding with an overall assessment.
Criteria for Responsibility
The fundamental obligation of Member States to examine asylum applications remains. A single Member State will be deemed responsible based on the Dublin criteria. Absent a designated Member State, responsibility defaults to where the application was registered. The option of sending an applicant to a ‘safe third country’ as defined by procedural law, rather than applying Dublin rules, persists. A new provision assigns responsibility to the Member State conducting a security check if an asylum seeker fails it.
The exception to the Dublin rules, applicable in cases of severe human rights violations in the responsible state, is retained, with amendments. It now exclusively references Article 4 of the EU Charter on Fundamental Rights, omitting the reference to “systemic flaws in the asylum procedure and reception conditions.” Consideration must be given to clauses concerning dependent persons and the sovereignty clause. Additionally, all Member States can be considered before assigning responsibility to the state where the application was registered.
A new provision explicitly mandates that each asylum-seeker apply in their Member State of first entry. Although this reflects the common understanding of the Dublin rules, the previous iteration solely addressed Member States’ obligations, not asylum-seekers’. It also introduces derogations: asylum-seekers must apply in the Member State that issued their residence document or visa. In case of expiry, withdrawal, etc., they must apply in their Member State of presence. Asylum-seekers must cooperate by providing evidence relevant to Dublin rules, submit biometric data for the Eurodac database, remain in the Member State where they are obligated to apply, are deemed responsible, or have been relocated to, and comply with transfer decisions.
Consequences for non-compliance, outlined in another new clause, include the potential loss of certain reception conditions under the revised reception conditions Directive, provided the asylum-seeker was informed and a basic standard of living is maintained. However, exceptions exist if there are grounds to believe the asylum-seeker is a victim of human trafficking, as defined by EU law. A general obligation to consider individual circumstances, including the risk of fundamental rights violations, alongside the proportionality principle, also applies.
The order of criteria for responsibility remains, but with modifications to both the criteria and their sequence. Criteria related to unaccompanied minors are largely unchanged, although the default rule now refers to where the minor’s application was ‘first registered’ instead of ’lodged.’ The criterion assigning responsibility based on a family member having international protection has been broadened to include Member States where the family member has EU long-term residence. However, the criterion concerning family members awaiting a first-instance decision on their asylum claims remains unchanged.
The definition of ‘family member’ has been amended to encompass relationships predating entry into EU territory, expanding beyond families existing in the country of origin. This change aligns with similar modifications in the family reunion definition within the qualifications and reception conditions rules.
Holding a residence document or visa remains a criterion, with extended responsibility periods for expired residence documents (three years instead of two) and visas (18 months instead of six). A new criterion considers the Member State where an asylum-seeker obtained a diploma or qualification less than six years before their asylum application. Two existing criteria have been prioritized over irregular entry: entry based on a visa waiver and applications lodged within an airport’s international transit area.
The irregular entry criterion, now last on the list (barring the default registration location), has been modified. Responsibility now expires 20 months (instead of 12) after irregular border crossing. The ‘Sangatte clause,’ concerning responsibility for irregular stay, has been removed. New provisions address search and rescue cases (responsibility expiring after 12 months) and relocation. The special provisions on dependents and the ‘sovereignty clause,’ allowing Member States to accept or request responsibility outside the rules, are largely unchanged.
Procedural Rights
Asylum-seekers’ right to information at the outset of the Dublin process has been expanded. A new right to legal counselling has been introduced. Rules concerning the right to an interview have been adjusted, including details on questions, the requirement for recording, and the replacement of written summaries.
Amendments to the rights of minors clarify the role of child representatives, elaborate on the ‘best interests of the child,’ and mandate assessments before transferring unaccompanied minors.
Regarding post-transfer decision remedies, Member States must inform asylum-seekers of acceptance by another Member State, including the obligation to comply. While the right to an effective remedy against transfer remains, its scope is restricted compared to the Dublin III Regulation. It is now confined to specific issues (Article 4 of the Charter, new circumstances, family-related criteria), overturning prior case law that allowed broader appeal rights. Member States must provide at least one week, but no more than three, for appeals. The likelihood of suspensive effects for appeals has been diminished. However, the right to legal aid for appeals is retained.
Regarding detention, while detention solely based on being subject to a Dublin procedure remains prohibited, the threshold for detention has been lowered (‘risk of absconding’ replacing ‘significant risk’). A new ground for detention has been added (’national security or public order’). The general rule for ‘shortest possible’ detention duration, tied to administrative procedures and transfer completion, remains. Time limits for expedited transfer procedures in detention cases have been shortened. While detention conditions are still governed by the reception conditions Directive, specific procedural guarantees (written reasons for detention, swift judicial review) have been added to the 2024 Dublin Regulation, potentially causing confusion due to overlapping provisions.
Transfer Process
Amendments to Member State obligations extend the responsibility to take back asylum-seekers to include those admitted under EU or national resettlement schemes who irregularly move to other Member States. The obligation for the responsible Member State to consider the merits of applications from asylum-seekers moving to another Member State appears to be removed, with the procedures Regulation treating such cases as withdrawn. Revised rules on responsibility cessation extend the duration of Member States’ responsibility. Deadlines for take charge or take back requests and responses have been shortened. If accepted, the requesting state must issue a transfer decision within two weeks.
The transfer itself must still occur within six months of accepting the transfer request or a final appeal decision. However, the exception extending the deadline to 18 months in absconding cases has been extended to three years. This now also applies when asylum-seekers resist transfer, render themselves unfit, or fail to comply with medical requirements.
Migration Management and Solidarity Framework
New provisions on migration management establish a general obligation for the EU and its Member States to implement comprehensive migration management, with internal and external dimensions. A general obligation to ensure solidarity and responsibility sharing, supported by a ‘Migration Toolbox’ of EU policies, is included. Member States must develop national migration and asylum management strategies, which the Commission will use to formulate a non-binding, long-term EU Migration Management Strategy. The first strategy must be adopted within 18 months of the Regulation’s entry into force (likely late 2025 or early 2026), with subsequent strategies every five years.
The Commission will publish an annual report on asylum and migration, evaluating the situation over the preceding year, projecting future trends, examining preparedness, and assessing the need for solidarity measures. Reports are due each October 15, beginning in 2025. Alongside the report, the Commission will adopt an implementing decision identifying Member States facing migratory pressure, at risk of it, or experiencing a significant migratory situation. This identification is linked to the solidarity rules.
Simultaneously, the Commission must propose a Council implementing measure establishing a ‘Solidarity Pool’ to address the coming year’s migratory situation. This proposal will outline EU-wide annual solidarity needs, including at least 30,000 relocations and €600 million in financial contributions. It will suggest contributions from each Member State based on the Regulation’s annual key to facilitate pledging. The need for solidarity is assumed; the Commission can only propose otherwise in exceptional circumstances. Proposing relocation numbers between zero and 30,000 or contributions below €600 million seems implausible.
While these numbers can be exceeded, and the Commission can identify other forms of solidarity, maintaining the ratio between relocations and financial contributions is necessary. The Commission will consider quantitative and qualitative criteria, including arrival numbers, recognition rates, and return rates. Due to political sensitivities, the proposal remains confidential until Council adoption.
A ‘High Level Solidarity Forum’ of Member State representatives, chaired by the Council Presidency, will review the Commission’s proposals within 15 days, providing a platform for pledging. The Forum can reconvene if greater solidarity is deemed necessary. It is supported by a technical forum and an EU Solidarity Coordinator appointed by the Commission.
The Regulation outlines the Solidarity Pool’s composition: relocating asylum-seekers and, with consent, beneficiaries of international protection granted less than three years prior. It also includes financial contributions for asylum and migration, potentially to non-EU countries impacting EU migratory flows. Alternative measures focus on operational support, capacity building, services, staff, facilities, and technical equipment.
The Council decision establishing the annual Solidarity Pool, adopted by qualified majority, allows amending the proposed relocations and financial support. Member States have full discretion in choosing solidarity measures, including the option not to relocate. The final decision reflects Member States’ pledges.
The Regulation details how Member States identified as facing migratory pressure can utilize the Solidarity Pool. It also allows Member States not initially identified to apply, subject to Commission assessment and potential Council review of available Pool capacity.
Member States facing migratory pressure can request deductions from their pledged contributions, subject to Commission assessment and Council approval. Alternatively, relocation pledges can be offset by assuming responsibility for applications outside their purview. For example, Germany could pledge 5,000 relocations from Greece but effectively deduct this by not transferring those individuals and processing their applications despite Greece’s responsibility.
Assessment
The 2024 EU asylum system changes aim to enhance migration control by improving efficiency and restricting secondary movements. However, this objective clashes with the free movement of people within the EU. The revised Dublin rules are inherently contradictory, seeking to enforce the Dublin system while simultaneously mitigating its strain on certain Member States.
Efforts to ‘make Dublin work’ involve restricting appeal rights against transfer, conditionally withdrawing benefits and application rights due to secondary movements, introducing explicit compliance obligations, expanding detention grounds, extending responsibility periods, and shortening administrative deadlines. Restricting appeal rights and benefits directly impacts asylum-seekers’ rights.
The 2024 Dublin rules limit both the scope and practical effectiveness of appeals against transfers, potentially impacting the entire system. Fewer cases might reach the CJEU, and more asylum seekers might challenge transfers while pursuing applications in the receiving Member State due to limited suspensive effects. The expedited procedures in the procedures Regulation might even result in application decisions before transfer appeals are resolved.
The provisions ‘undoing the effects of Dublin’ are novel within the Regulation but resemble previous relocation decisions. While the voluntary approach to relocations might improve compliance compared to the poorly implemented mandatory quotas of the past, it fails to address the core issue of insufficient solidarity. The new Regulation merely shifts the dynamics, raising questions about whether Member States will pledge enough relocations and comply with their pledges.
Finally, regarding the UK’s potential participation in the revised Dublin rules, the analysis above debunks the claim that the Labour party aims to accept 100,000 asylum-seekers annually from the EU. Aside from the lack of EU interest in negotiations, the Labour party’s pursuit of a limited arrangement, and the voluntary nature of relocation, the UK’s share of the minimum 30,000 annual relocations cannot mathematically reach 100,000. This discrepancy highlights a need for greater numerical literacy, potentially supporting the Prime Minister’s proposal for mandatory mathematics education until age 18.