A blog post by Andrew Sammarco, Senior Associate
The primary function of the Dublin Regulation (Dublin III) is determining member state responsibility for processing asylum applications of refugees entering the European Union and associated states who are also Dublin III member states.[1] Dublin III, problematically, is being interpreted in a narrow, textualist way which puts it fundamentally at odds with the Common European Asylum System (CEAS) and, by extension, the 1951 Geneva Convention.
These connections can be made by first exploring the relevant sections of Dublin III, the Geneva Convention, and other related pieces of EU law in relation to the CEAS.[2] The CEAS is based on the full and inclusive application of the Geneva Convention, which bridges the gap to Dublin III.[3] From there, the facts of important CJEU cases (Court of Justice of the European Union) are examined closely. The Jafari case and A.S. v. Slovenia are the best examples of Dublin III’s faulty interpretations within the court as the judgements fail to even consider the migration crisis occurring along the Western Balkan Route that gave rise to the underlying circumstances of these cases.[4] Advocate General Eleanor Sharpston issued an opinion on these cases, highlighting the shortcomings of Dublin III and the state of general inapplicability of Dublin III to the migration crisis surrounding these cases.[5] She then suggests an alternate mindset of interpretation: sharing responsibility rather than assigning responsibility.[6]
The ramifications of these case judgements must be explored, alongside the merits of sharing responsibility as a potential resolution and the benefits it could bring about. Potential resolutions, some going as far as to suggest replacement of Dublin III, have already been proposed by the European Commission.[7] These potential resolutions must be viewed with the Western Balkan migration crisis closely in the rear-view, and the newly occurring Ukrainian crisis at the forefront. The Ukrainian crisis, brought about by the Russian invasion of Ukraine, is the worst migration crisis the world faces since World War II. This is a crucial point where the past must be learned from in order to prevent the troubles of the Western Balkan migration crisis from reoccurring. This requires necessary changes to Dublin III.
[1] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, preamble, June 26, 2013, (EU) No 604/2013, https://eur-lex.europa.eu/eli/reg/2013/604/oj.
[2] Id.; The 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection convention, art. 31(1), July 28, 1951, 189 UNTS 137.
[3] Case C‑490/16 A.S. v. Republic of Slovenia and Case C‑646/16 Jafari, ECLI:EU:C:2017:443 (June 8, 2017) [hereinafter Sharpston Opinion].
[4] Id.; Darko Bandic & David Rising, Austria deports Afghan sisters, children based on EU ruling, AP News, (Mar. 15, 2018), https://apnews.com/article/6a942f4a6d8b4a1288b129de9fec3591; https://www.mdpi.com/2076-0760/10/5/154/pdf.
[5] See Sharpston Opinion, supra note 3.
[6] Sharpston Opinion, supra note 3, at ¶ 189.
[7] Elena Chachko & Katerina Linos, Refugee Responsibility Sharing or Responsibility Dumping?, Cal. L. Rev., June 2021, at 139-140.