The 1951 UN Refugee Convention and its Additional Protocol offer the central international protection mechanism for refugees. Accordingly, the key principle of the Convention is the principle of non-refoulement which obligates states not to return a refugee to the territory from which she was fleeing persecution or is at risk of torture or violence. Likewise, the Qualification Directive (EC) 83/2004 of the EU incorporates key principles of the Refugee Convention into EU law and recognises that this Convention is the key document for refugee protection. There is also the Dublin Regulation (EU) 604/2013 which establishes the criteria by which an EU member state is responsible for handling the asylum application of a person seeking international protection. Continuously, it sets out effective rules and procedures by which a member state is obliged to adhere to when examining asylum claims; one of which is the finger-print registration of asylum seekers who arrive into the EU. Furthermore, one of the main rules established by the Dublin regulation is that an asylum seeker can only seek asylum at her first point of entry into Europe and this state is obliged to fairly examine her claim for asylum. In other words, if a person who is fleeing persecution wants to arrive to in Italy (for example, because she has family there) but, due to uncontrollable circumstances, reaches Cyprus first, an asylum process needs to occur in Cyprus, as the first point of entry.
The first problem with this policy is that most times people fleeing persecution travel by land or sea and while they might have various countries of destination, southern European countries are usually their first point of entry into the EU. Due to this, there is a continuous influx of refugees into southern European states and a low number of refugees in northern European states. For example, according to the UNHCR, Greece had 169,641 refugee arrivals by sea as of October 2016, while Estonia has less than 10 registered refugees therefore, this has become a serious problem for southern EU countries. Take Greece for instance, where due to this regulation, various human rights violations of refugees have occurred. For example, the living conditions of refugees in Greece are horrendous and there is little access to proper medical care. Also, they are subjected to xenophobic attacks and exploited by drug dealers, human traffickers and sexual predators. It was reported by the Guardian that children as young as seven have been sexually assaulted at the refugee camps in Greece. As a result of this, there have been various steps taken by the EU to solve this problem. One response has been to offer financial assistance to Turkey in order to keep refugees out of European borders, a deal that has been described by Amnesty International as ‘a knife in the heart of international refugee protection system’. Therefore, the effectiveness of these steps will be determined by the extent of their success in the future.
Another loophole in the Dublin Regulation is that during the process of determining the country responsible for a claim under the Regulation, the asylum seeker could be placed in detention before she is sent back to the country which was her first point of entry. This is a problem which has been regularly challenged by the UNHCR and ECRI because firstly, asylum seekers should be protected from and not sent back to countries where the protection of their rights and wellbeing is not guaranteed and secondly, detention of asylum seekers should be a last and not a first resort. Furthermore, in the case of MSS v. Belgium and Greece [GC], Application No. 30696/09 the ECtHR found a violation of Article 3 of the ECHR and Article 3 in conjunction with Article 13 by Greece because of the conditions of detention of the applicant and the deficiencies in the asylum procedure followed by Greece in the applicant’s case. More importantly, a violation of Article 3 was also found by Belgium for returning the applicant back to Greece with knowledge of these deficiencies even though Belgium was simply acting in accordance with the Dublin Regulation. Nevertheless, this is a decision of a court of the Council of Europe therefore, it is not clear as to whether there will be a cooperation between the EU and the Council in regards to tackling the current refugee crisis in Europe.
Despite the limitations of the Dublin III Regulation, there are certain measures which the EU could implement in other to tackle these problems. Firstly, the Qualification Directive (EC) 83/2004 should be developed into an EU Regulation. This is because the Directive sets out provisions of the rights of asylum seekers, examples of which are the protection from refoulement, access to healthcare, access to education, access to integration facilities, social welfare, access to employment, access to accommodation and even specific provisions in regards to children and vulnerable persons. Therefore, if this is developed into a regulation, there will be a unification of laws regarding the protection of refugees within the EU as all member states will be legally bound by this regulation. Likewise, it will ensure a minimum standard of protection of refugees and asylum seekers within the EU rather than leaving it up to the member states to decide on how international protection might be administered to refugees and asylum seekers in their countries. Another solution could be an amendment of the provision which requires asylum seekers to apply for asylum only in the state of their first point of entry into the EU. Likewise, the EU should implement a policy which could allow for a reasonable distribution of refugees within the EU member states; this will relieve southern European member states from being overwhelmed with a large number of refugees. In addition, the population, financial, social and economic position of each member state should be taken into account when deciding on how many refugees should be distributed to each state. Nevertheless, whichever mechanism the EU seeks to implement, there should be a solidarity based approach adopted by the EU to manage the current refugee crisis with the foundation of any policy or law being a human rights based approach. This will ensure an equitable and humane treatment of the refugees arriving in Europe.
Written by Oluwatodimu Akolade Bankole