On the future of EU asylum and free movement rules

Since the beginning of the so-called "migrant crisis" over six months ago, an increasing number of commentators, and occasionally some politicians, too, have questioned the ongoing relevance and viability of the Dublin and Schengen regimes.

So, should they be suspended or abolished?

In a way, the Dublin regulation is already being suspended occasionally and selectively. For example, on 21 August 2015, Germany's Federal Office for Migration and Refugees (BAMF) announced that it was suspending the regulation for all Syrian nationals.

The European Commission immediately voiced support for this initiative, qualifying it as an “act of European solidarity”, and its recognition of the fact that member states at the external borders cannot be left in isolation to deal with the large numbers of asylum seekers.

While, officially, Germany is currently the only member state applying such a selective suspension of the Dublin regulation, other member states, such as the Czech republic, have in effect also suspended its application.

Hungary announced on 23 June 2015 that it was suspending the Dublin regulation. However, in that particular case it was a question of not taking back asylum seekers which had first entered Hungary and then continued their journey to other neighbouring member states.

Hungary said at the time that it was overburdened, although officially it has since revised its position.

Implicit suspensions

There have also been implicit suspensions of Dublin by some member states in the past, when asylum seekers were not returned to Greece, where the asylum and detention system was considered as not meeting minimum EU standards.

There is little doubt that an overhaul of the Dublin regulation is increasingly needed, in view of the current migrant crisis which, according to all qualified observers, is only going to move up a gear in the coming months.

In a way, the Dublin regulation was flawed from the start, since, by imposing the same obligations on all member states, it was assuming that all of them were experiencing similar pressure at their borders, and enjoying similar resources and infrastructure, and similar asylum procedures and standards, in line with existing international conventions.

It has now become clear that this was never to be the case, not least because the majority of the EU’s external borders are in those member states that enjoy the least optimal resources and capacity to deal with significant migration and refugee inflows, and who additionally have been hit the hardest by the 2008 financial crisis, as in the case of Greece.

While political consensus on this is unlikely to occur in the foreseeable future, there is little doubt that policy rationale, if not common sense, would submit that the Dublin regulation should be suspended temporarily for asylum flows originating from those countries (Greece, Hungary, Italy and Spain) that are currently not in an optimal position to cope with the magnitude of the issue.

The regulation could then only be reinstated once effective harmonisation of asylum procedures, capacity (reception centres etc.) and financial and human resources is achieved.

An alternative, interim response to the constraints currently being experienced by these member states in implementing the Dublin regulation would be to set a ceiling - an annual quota - on the number of asylum seekers that should be returned to the countries of first asylum.

Shelving Schengen

Suspending the Schengen rules would gradually put at risk one of the most fundamental principles of the European Union - the free movement of people.

Suspending Schengen would further provide a clear acknowledgement of the member states’ failure to establish an efficient immigration control system inside their national borders, and/or a clear acknowledgement of their lack of trust in their fellow member states’ ability to establish and run such a system.

However, as in the case of Dublin, there is certainly room for revisiting some of the Schengen rules or their implementation. First of all, it should be stressed that the Schengen mechanism already allows member states to re-establish intra-EU border controls under certain circumstances, for example in cases of terrorist threats.

This option has been used occasionally in the past. However, as in the case of Dublin, it cannot be assumed that all Schengen member states are currently in a similar position to police their borders, conduct adequate risk analysis and process the so-called “Dublin alerts” efficiently.

There is therefore a need for further technical and financial assistance to help achieve uniformity in the member states’ capacity to implement Schengen adequately, particularly as regards the EU’s external borders.

Assistance in this area is currently channelled mostly through the so-called External Borders Fund, which is administered by the European Commission, and by specific FRONTEX programmes.

However, it is widely acknowledged that the level of funding of both instruments has not kept pace with the magnitude of the recent and still-unfolding migrant crisis, and that a much more substantial financial effort will need to be made in the coming weeks and months.

Solon Ardittis is Director of Eurasylum Ltd, a European research and consulting firm specialising solely in issues of immigration and asylum policy on behalf of public authorities and EU institutions. He is also Joint Managing Editor of "Migration Policy Practice", a bi-monthly journal directed at senior policy-makers worldwide