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Writer's pictureAntonia Boorman
Apr 11, 20209 min read

How the Dublin Regulation hurts Asylum Seekers

Updated: Dec 20, 2020

EVALUATION OF THE DUBLIN III REGULATION (REGULATION 604/2013)

 

The Dublin III Regulation


The Dublin III Regulation (Regulation No 604/2013) is a legal policy developed by the European Union in 2013 applying to all 27 member states (Citizens Information, 2020). The Dublin III Regulation details that when asylum seekers* enter the EU, it is the responsibility of the first country entered to process the claims for asylum (European Parliament, 2013). Its purpose is to determine and allocate responsibility for asylum seekers’ applications to one sole country within the EU, based upon the premises that EU member states have a similar quality of life, followed the same common law and have similar wealth / resources to process asylum claims and resettle refugees (UNHCR, 2001). By regulating that only one country is responsible for the processing of asylum claims, this reduces duplicate claims that had previously created a backlog in the allocation system (European Parliament, 2003), and minimises the risk of “bureaucratic ping pong between two member states” (Robinson, 2016, para. 5) who both want to avoid processing the claims, which come with processing and resettlement costs.

The Dublin III Regulation takes immediate family ties into account but otherwise mandates that asylum seekers must apply in the first EU country of arrival (Robinson, 2016). This is implemented through EURODAC, a database obtaining fingerprinting on entry to the EU that identifies the first country of entry that is accessible by all member states (AsylEasy, 2016). When applying for asylum, if an asylum seekers’ fingerprint has been registered elsewhere, then they will be sent back to that country to apply for asylum there.


Unfortunately, the intention to allocate responsibility to one sole country has backfired as due to this regulation the geographically proximate countries, such as Italy and Greece, are now responsible for the bulk of processing asylum claims, causing an increase of strain and pressure on these national governments to process claims and provide for refugees (UNHCR, 2015). For example, in 2015, 850,000 people entered Greece and over 200,000 in Italy (Robinson, 2016), which due to the Dublin III Regulation, Italy and Greece and solely responsible for dealing with the financial consequences of this. This creates a backlog which the regulation aimed to avoid, and while waiting for asylum approval, which can take years, asylum seekers often must wait in camps, are often separated from family and are unable to access services such as education and employment (UNHCR, 2015).


Non-border countries have also experienced an increase in the cost of transporting asylum seekers back to the country of entry (BBC, 2016). The regulation has resulted in the closing of borders (BBC, 2016), rise in far-right nationalistic sentiments (BBC, 2016) and the increased the incentive to enter the EU illegally through smugglers, in order not to be fingerprinted, which increases cost and decreases safety for asylum seekers as they are now at a higher risk of being trafficked (UNODC, 2020). This identifies that the Dublin III Regulation as a system for allocating asylum seekers is ineffective. Therefore, in 2019 it was confirmed by the EU that reform of the system was necessary (European Parliament, 2019).



Complexity Evaluation


The features of a complex system include interconnectedness, sensitivity to conditions, adaptiveness, nonlinear and dynamic behaviour, dispersed control and perpetual novelty (Fost & Genone, 2016). Due to the novelty of the refugee influx situation, the sensitivity to change and adaptiveness of the issue as different regulations are introduced and reformed, and the multiple interacting agents involved (the member states, the European parliament, and the asylum seekers), the system of allocating asylum seekers can be described as complex. Complex systems are dynamic, sensitive to their environments and evolving based upon any interventions (Fost & Genone, 2016). The Dublin III Regulation is an example of an intervention within the complex system surrounding the allocation of asylum seekers.


Complex systems, though nonlinear and dynamic, tend to follow patterns that can be predicted and influenced. By mapping the effects of the intervention of the Dublin III Regulation in the system using complexity tools, it can be understood and reformed in a more effective thought-out way preventing unintended consequences from the policy change, such as the current overcrowding and strain on national resources that the regulation is causing currently.


The interconnectedness of the agents influences the system of allocation. For example, the regulations that are created by the EU Parliament are influenced by the needs and wants of the member states, as well as their predicted compliance with the proposed policy, which has direct effects on the decision making of asylum seekers ie. whether to choose to be smuggled, which could have the negative consequence of being trafficked, or to comply with the regulation which could result in living in camps with dire conditions or having to wait years, without being able to work or use health services, for their refugee status is processed (Oliver, 2015). The interconnectedness of the agents and the sensitivity to influence each other is what makes this system dynamic.


The dynamic nature influences the adaptiveness of the system. Specifically, the increase of asylum seekers can increase the strain of resources as the cost of processing and resettlement rises. This influences the need for policy reform of the Dublin III Regulation as the needs and wants of the member states have now also altered. Changes by agents in the system will have ripple effects throughout the system. For example, due to Article17(1) of the Dublin III Regulation, member states are granted sovereignty over their borders meaning they can choose to open them and take responsibility to process claims and resettle refugees (European Parliament, 2013). This was apparent when Germany, an EU member state, decided to not implement the Dublin III Regulation and instead open its borders to asylum seekers (Robinson, 2016). Unsurprisingly, this caused an influx of asylum seekers into Germany which put a strain on the German government, which supposedly led to an increase in far-right nationalist movements (Robinson, 2016). This affected the other member countries, who seeing the strain on Germany’s governmental resources that the influx of asylum seekers contributed to, disincentivized other member countries to open their borders going so far that the same rise in far-right nationalist movements arose ie. Brexit was based upon a wanting to close borders to asylum seekers (Outhwaite, 2018).


This is one of many situations that can arise based upon a change in the system through an intervention such as the Dublin III Regulation, or an action done by one of the involved interconnected agents. This illustrates the perpetual novelty of the system. Although not every scenario can be mapped and predicted, the most common can be using a phase space diagram. A phase space is a complexity tool that creates a diagrammatic illustration of the possible states of a system and the variables that influence the system (Fost & Genone, 2016). For the allocation of asylum seekers in the EU, there can be multiple variables such as the number of asylum seekers, the EU member countries’ wealth and resources to process claims and resettle refugees, and geographical proximity to the border of the EU. Each of these variables acts as a dimension to the phase space, with the trajectory through the space representing the evolution of the system over time. Due to the somewhat predictability of the system, this trajectory tends to be within a confined subset in the phase space (Fost & Genone, 2016). The subset which the trajectory tends towards is known as the attractor. Seen as the “paths of least resistance”, attractors are that state that the system eventually evolves into without intervention (Fost & Genone, 2016). The system is complex and dynamic, constantly changing and adapting to its environment, yet when attractors tend to end up being where they would have ended up eventually, this state is called the basin of attractors (Fost & Genone, 2016). For the EU asylum allocation case, the phase space, attractors and basin of attraction are defined below both for the EU and asylum seekers.


For example, asylum seekers seek refuge in countries that would be able to provide for them, which encourages an influx to the EU, and since EU member countries supposedly have a similar standard of living, asylum seekers would meet their requirements in the first EU country entered and stay there. This would be the path of least resistance. However, since the Dublin III Regulation means that the first country in which asylum seekers are recorded entering is where they must seek asylum if an asylum seeker wants to settle in a different country than the border countries, then the path of least resistance would be illegal smuggling through the EU to not be fingerprinted.



Reform using Complexity Tools


Since the refugee crisis of 2016, the system has reached a critical point due to the significant increase in the volume of asylum seekers and the raised pressure on border countries, such as Italy and Greece, where reform of the regulation is crucial. In a complex system when a system reaches a critical point they begin a transition from one phase space to another, where a new basin of attraction is developed (Fost & Genone, 2016). This is known as a Regime Shift (Fost & Genone, 2016). Here, this would be where reform of the Dublin III Regulation is created and implemented, changing the attractors and the dynamics of the system.


The EU Parliament is the central authority in the EU. As a social institution, created to represent society and provide for its citizens, it has already established a path of least resistance, which is represented through laws, as in theory abiding by laws creates a state of equilibrium which helps to maintain order. Due to the adaptive nature of a complex system, the EU cannot entirely predict where asylum seekers will enter legally, yet can assume that it will be a border country and can assume that if the laws truly reflect the best interests of asylum seekers then asylum seekers will abide by the law, as it is the path of least resistance. The Dublin III Regulation currently is ineffective so, for many, it doesn’t act as the attractor.


Reforming the Dublin III Regulation based upon this can help to spread responsibility and distribute the associated costs for EU member countries, and reform the asylum seekers’ basin of attraction by becoming the easiest option to follow. This can also be explained through a process called Bifurcation, which details when a critical point is reached and two paths are made (Systems Innovation, 2016). In the EU allocation of asylum seekers' case, the critical point has been reached with the paths consisting of making a reform (the desired path) and not reforming the regulation (the counterfactual). One of the paths must be followed, whether intervention is done or not, and either path will create a new phase space, meaning that this also creates a regime shift. Considering that the EU confirmed the need for reform in 2019 (European Parliament, 2019), it seems likely that this is the path taken. The critical point has led to the decision of the European Parliament and decided the system’s fate, when this occurs it is called Symmetry Breaking (Systems Innovation, 2016).


To Conclude...


The Dublin III Regulation has been identified by the EU Parliament to be unsuitable and ineffective at achieving its purpose of reducing the backlog of asylum claims (European Parliament, 2019). Within this blog, I have identified how the system of allocating asylum claims is a complex issue, requiring a systems-thinking approach. By using a phase space analysis when approaching the reform, the European Parliament would be able to make a more effective reform of the Dublin III Regulation.


 

Footnotes

*It is important to distinguish between a refugee and an asylum seeker. A Refugee is a person who flees conflict, climate or persecution (Habitat for Humanity, 2016), while Asylum Seekers are people who claim refugee status, but this claim has not been evaluated or confirmed (Habitat for Humanity, 2016). Not every asylum seeker will become a refugee as some claims are denied, but every refugee will have been an asylum seeker previously (Habitat for Humanity, 2016). Refugees are protected by international law under the 1951 Refugee Convention (UNHCR, 1951), which is why it is crucial to obtain refugee status.



 

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