The law of the 'Jungle'

Commentary

With the future of the Dublin system up for grabs, families are still being divided by mistrustful governments 

"This judgment highlights that there are safe, legal routes to reconnect families using the Dublin III regulations, and we hope will allow other families to be reunited." This statement from George Gabriel of Citizens UK may be one of the most positive ones uttered about the Dublin regulation in months. In the same week that it became clear that the European Commission has plans to scrap parts of the regulation, lawyers for the British NGO won a case for a group of young Syrians stuck in the Calais 'Jungle' camp based on Dublin. Cameron's recent intervention on the subject of the 'Jungle' has renewed interest in the UK about the cross-border migration co-operation between Britain and France, with some questioning whether it would continue in the event of a British leave vote.                                                                   

Debating the finer points of this EU regulation, which decides which member state is responsible for processing an asylum claim, may seem to be a theoretical exercise at a time when the regulation has effectively been abandoned by many countries in other parts of Europe. Frontier countries like Italy and Greece are currently failing to register large numbers of arrivals and allowing them to move through to other countries and Germany waived its right to return refugees to entry point countries last August. However, the lawsuit before the Upper Tribunal of the British Immigration and Asylum Chamber is a good showcase of the weaknesses at the heart of the Dublin regulations and the urgent need to rethink this legislation, rather than work around it.

The group of Syrians represented in the litigation consists of three 16-year olds, and the adult brother of one of them who suffers from a mental illness. They had been living for months in the Calais 'Jungle', the makeshift refugee camp near the crossing into the UK where thousands live in grim conditions. From there, they were trying to get to their brothers who are already legally settled in the United Kingdom as recognised refugees. The case put to the Immigration and Asylum Tribunal was that a decision by the Home Office to turn down their request to apply for asylum in the United Kingdom breached their right to a family life under article 8 of the European Convention on Human Rights, and that, according to the Dublin Regulation, the country should take over these asylum cases from France.

The Dublin system was put in place to prevent 'asylum shopping', where asylum seekers have asylum requests pending in several member states. Its main principle is that only one member state is responsible for examining an asylum application, usually the first country of entry into the EU. Family considerations were always key in this system. Once an asylum application is lodged in the country, that country can ask another country to take over the case, and the first responsibility is for the member state where family members of the applicant already have asylum, or where an application for asylum is under examination. In the case of the Syrian boys, the French government would transfer the responsibility for the application after the connection with the family members in the United Kingdom had been confirmed.

However, the immigration court determined that this was highly unlikely to happen. Only a small percentage of orders for transfer to other EU countries were realized in recent years, and unaccompanied foreign minors are in practice not transferred. This problem is not limited to France. Other research from the Migration Policy Institute show that in 2013, before the peak of the migration crisis, only 16,000 of 76,000 transfer requests by states were actually carried out. The think tank also found that transfers based on family criteria, relevant especially for many minors trying to reunite with family, are rare in reality: in 2013, only 1.8 percent of  'take-care requests' were based on these criteria, and only 584 individuals were transferred on this ground.  

And this is just one of many areas where the Dublin system has failed. From its establishment in 1990, the Dublin regulation has been under severe criticism. The system puts an unequal burden on frontier countries to process asylum requests, and given the wildly varying levels of success rates for asylum applications per country, does not give a fair chance to all refugees. There have been proposals to completely overhaul the system in the past, but the European Commission decided to stick to the status quo in both 2003 and 2013.

Events during the refugee crisis have shown that apart from practicalities, the theoretical foundation of the regulation is also misguided. This foundation, as examined in several cases before the European Court of Human Rights, is mutual trust between member states that they are safe destinations for asylum seekers. It supposes that within the European Union, protection standards are sufficiently harmonised. But there is neither trust, nor are their comparable regimes of protection.

French support for refugees is limited and as in many countries with overburdened asylum systems, asylum seekers have to wait at least 18 months for a final decision on their applications. Officially, they are supposed to get accommodation during this time, but in practice there are only beds available for about half of those waiting, leaving many in improvised accommodation such as the tents of the Calais Jungle. The testimonies heard in court on the situation in the Calais camp illustrated the consequences of this. As the court summed up; ‘the conditions prevailing in this desolate part of the earth are about as deplorable as any citizen of the developed nations could imagine.”

On the 20 January, the Immigration and Asylum Tribunal ordered that the four Syrians were allowed to join their family in the UK with immediate effect while awaiting the results of their asylum claims. The court accepted that a written claim to asylum in France was enough evidence that the minors had sought safety there, and that the British government did not have to wait for the French government to act with a transfer request. A day later, the boys were welcomed at King's Cross St Pancras by their family, as a small crowd gathered outside the station to celebrate the victory. The Home Office is expected to appeal.

The situation in Calais has been widely reported by the media. In the past few weeks, David Cameron was called upon by charities to admit at least 3,000 children from camps at the French coast, less than 200 kilometres from London. He responded by announcing a decision to take in more unaccompanied children from camps in the Middle East, and creating a £10,000 fund to support such children living in Europe. In the meantime, Citizens UK are sending a legal team to Calais to prepare cases for other Syrian refugees who could come to Britain under the Dublin regulation. They expect to be working on up to 200 such cases, and ask for volunteers, lawyers and interpreters to register on the Safe Passage website to help with the roll-out. Their plans may have to change again: in March the European Commission will present plans for reform of the regulation. The 'first country of entry' regulation will most likely be scrapped there, but what will come in its place is not clear yet. The United Kingdom, which has deported over 12,000 asylum seekers under Dublin rules to other countries in Europe since 2003, is still a staunch supporter of the regulation.

Any changes to the regulation should focus on an equal burden on member states and a fair chance for asylum seekers. Most of all, they should be workable, to allow states to take the first steps towards the elusive ‘mutual trust’. Leaving a stunted regulation in place would only continue the current situation, where countries take unilateral decisions to work around the system, countless refugees remain in limbo, and courts have to intervene to protect basic rights. 

The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.

Read more on: Refugee Crisis, Internal responses to the refugee crisis, European Power

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