Changing the odds in Europe's asylum lottery

Desperate to escape the conflict in Syria, but reluctant to see out the war in a dusty refugee camp in Jordan, Emmad Saeed* and his family paid smugglers to take them to Europe. They hoped to reach relatives in Germany or Sweden but their smugglers guaranteed only that they would get to Europe, and the country their small boat washed up on was Greece.

Unfortunately for Saeed, Greece has one of the lowest refugee recognition rates in Europe and a practice of detaining asylum seekers for up to six months while their applications are being considered. Germany and Sweden have higher recognition rates but, until recently, asylum seekers who had already made an application in Greece ran the risk of being transferred back there if they attempted to make a second asylum application in another European Union (EU) member state.

No region in the world has succeeded in harmonizing its treatment of asylum seekers. Even those countries that have ratified the 1951 Refugee Convention interpret and implement it very differently. The result for asylum seekers is a lottery depending on where they make their application. In one country, they might be detained for months while their application is processed, only to have it rejected, while in another they might be recognized as a refugee and have the right to work or study while their claim is adjudicated.

Nowhere have these discrepancies been more debated than Europe, where EU member states agreed to the principle of a Common European Asylum System more than a decade ago and set a deadline to have such a system in place by 2012, but where standards of reception conditions and the granting of refugee status still vary significantly from one country to another.

Central to establishing a common asylum system was the EU’s adoption of the Dublin Regulation in 2003. With the aim of discouraging asylum seekers from filing multiple claims in different states, it established a hierarchy of criteria for determining which member state should be responsible for processing an asylum application. Although family unity and humanitarian concerns are among the criteria states should consider, in practice the “country of first entry” has been the one most widely used and has resulted in thousands of asylum seekers being transferred from countries like Germany and Sweden back to “frontline” states such as Greece, Italy and Poland.

A flawed system

Transfers to Greece have largely halted only as a result of two 2011 rulings by the EU Court of Justice, which found that asylum seekers returned to Greece could face inhuman or degrading treatment, largely because of the country’s notoriously poor detention conditions. Transfers to other countries with dubious records for detaining and processing asylum seekers such as Hungary, Italy and Malta continue.

The Dublin Regulation has been widely criticized for being based on a Common European Asylum System that does not yet exist beyond a set of minimum standards for reception conditions, asylum procedures and refugee determination that are difficult to enforce.

For example, while France rejected 84 percent of asylum applications in the second quarter of 2012, Germany only rejected 52 percent, according to EU statistics. During the same time period, Russian nationals stood a better chance of gaining refugee status in France than Belgium.

“The system is based on an assumption that’s not true - that all countries equally respect the rights of asylum seekers,” commented Ana Fontal of the European Council of Refugees and Exiles (ECRE), an alliance of refugee-assisting NGOs based in Brussels.

A report released by the Jesuit Refugee Service (JRS) in December 2011 argued that the Dublin system penalizes asylum seekers for seeking protection in Europe and encourages them to circumvent the system by making use of smugglers and traffickers to illegally enter countries where they will have a better chance of gaining asylum.

It also does nothing to ensure that the burden of dealing with asylum seekers is evenly distributed. Cecilia Malmstrom, the EU commissioner for home affairs, has pointed out that most asylum applications are made in a handful of member states and that a common asylum system should include mechanisms for rebalancing responsibility more evenly.

However, Emilie Wiinblad, a senior policy officer with the UN Refugee Agency (UNHCR) pointed out that the Dublin Regulation was not designed to ensure an equitable distribution of asylum seekers among states. She questioned whether any tool could achieve that and whether this was the most important goal. “From a legal perspective, the most important requirement is that those in need of protection can receive it. More equitable distribution of responsibility will rely on solidarity,” she told IRIN.

Amendments to the Dublin Regulation

In September of this year, the European Parliament’s Committee on Civil Liberties agreed on the text of a number of amendments to Dublin that are expected to go to a final vote in December or January. If approved, it will oblige member states to provide asylum seekers with more information about their rights and free legal assistance if they decide to appeal a transfer decision. It also sets out clearly defined grounds for when an asylum seeker can be detained, in what conditions and for how long, although it does not preclude the detention of unaccompanied minors.

In line with last year’s court rulings on Greece, the amended regulation would suspend the transfer of asylum seekers to countries where there are systematic flaws in the asylum procedure that could result in inhuman or degrading treatment. The text also includes provision for an early warning system aimed at identifying flaws and dysfunctions in a national asylum system before it reaches crisis point, although how this mechanism will work is unclear.

The criteria for determining which member state is responsible for processing an asylum seeker application remain largely unchanged although the definition for family reunification has been expanded slightly.

Sylvie Guilaume, an EU member of parliament and shadow rapporteur on the revision of Dublin, warned that the amended regulation would still leave “a lot of room for interpretation by member states” and that the new early warning system was unlikely to be up to the challenge of creating “an efficient responsibility-sharing regime that promotes solidarity among member states”.

“The system needs to change”

Fontal of ECRE also feels the changes do not go far enough. “We’re happy there are some improvements, but in the longer term the system needs to change,” she told IRIN.

The first step, she added, should involve strengthening asylum systems and reception conditions at a national level. Funding for such efforts is available through the European Refugee Fund while the European Asylum Support Office can provide assistance with training on refugee determination.

ECRE would like to see a system that gives more consideration to connections that asylum seekers may have with a particular country through family or community and that could improve their prospects for integration.

Wiinblad of UNHCR agreed that a system that places more emphasis on family links is needed, but pointed out that while asylum seekers have a right to seek protection under international law, they do not necessarily have the right to choose which country they would like to live in. “Refugees may be called upon to avail themselves of the protection that is available in a safe third country provided it meets the required standards,” she told IRIN.

*not his real name

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For more stories on migration, please visit our In-Depth Crossing into the Unknown