20 January 2016

The Financial Times splashed on its front page today that the European Commission intends to propose scrapping a rule that currently allows EU member states to deport asylum seekers to the country where they first entered the EU. The proposal would come as part of a broader review of the so-called ‘Dublin Regulation’. The story is resonating because of the impact that it could have on David Cameron’s EU renegotiation and the referendum campaign, in which the issue of immigration – be it the free movement of EU nationals or the wider migration/refugee crisis – is expected to feature prominently.

The ‘Dublin system’ has been long broken

While the UK has an opt-out from EU asylum policy, it decided to sign up to the Dublin Regulation. The rationale was that, by doing so, Britain would have the best of both worlds – broadly, that it would not be bound by common EU rules on asylum or non-EU migration, but would still be able to deport asylum seekers to the first country where they entered the EU.

However, the reality is that the Dublin system has not been working properly for a long time. According to Eurostat, in 2013 the UK submitted 1,766 ‘outgoing’ requests under Dublin – that is, it asked to return 1,766 asylum seekers to the EU member state of first entry. However, only 827 transfers were actually carried out that year – less than half. The gap was even larger in 2014, when the UK submitted 1,831 requests but ended up transferring only 252 people.

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This is due to several different reasons. First, transfers to Greece – one of the main points of entry to the EU – are de facto no longer possible after both the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ) highlighted deficiencies in the country’s asylum system and detention conditions. Second, returning an asylum seeker to the EU member state of first entry can be an expensive and time-consuming exercise. Third, asylum seekers sometimes manage to avoid deportation – for example by absconding or moving to another country.

But the broader point stays: while the UK would clearly like to have the Dublin system in place, the practical impact of scrapping it in terms of numbers is likely be limited.

With or without Dublin, the EU cannot ‘force’ the UK to take in more refugees

We are at very early stages of this process, since the Commission is not expected to put forward a concrete proposal in writing until March. Crucially, the key question will be how to replace the existing Dublin system. According to The Financial Times, one of the ideas under consideration is to establish a permanent relocation mechanism – under which asylum seekers would be redistributed among EU member states based on criteria such as population and GDP.

Should this be the case, the UK would have the right to opt out of the new scheme. Therefore, it is wrong to claim that scrapping Dublin would mean that the EU would be able to ‘force’ the UK to take in more refugees.

More broadly, it is far from obvious that the Commission’s proposal will be received well by all member states. Several countries – namely Italy, but also Austria and Germany – have called to get rid of or at least review the Dublin system. However, we have recently seen how problematic it can be for the Commission to push through and enforce mandatory refugee quotas. Any plan for a permanent redistribution mechanism would be even more difficult to sell. Furthermore, the discussions would likely be further complicated because the future of the passport-free Schengen area – of which the Dublin system is seen as a necessary complement – would also come into play.

What impact can this have on the EU referendum campaign?

Politically, this could of course become a headache for the UK Government if it ends up fighting a battle over keeping Dublin place in the run up to or during the referendum campaign. Supporters of Brexit will seize the opportunity to claim that the end of the Dublin system would see the UK lose further control of migration. This needs to be put into context. One could argue that scrapping Dublin could create a greater incentive for people to reach the UK illegally to claim asylum – as it would no longer be possible to deport them to the EU member state of first entry. But, as noted above, we are talking about relatively small numbers.

It is also not obvious why things would be radically different post-Brexit. Its geography and Schengen opt-out mean that the UK is already in a very different position compared to the rest of the EU, despite being a member. Outside, the UK would essentially be in a very similar situation, since the issue is broadly one of border control and preventing illegal migration from the Schengen area to the UK. In addition, as we explained in previous blog posts, Brexit may well give France a good excuse to scrap the 2003 Le Touquet Treaty – meaning that the Anglo-French border would be moved back from Calais to Kent, potentially making it easier for asylum seekers to reach British shores.