Dublin IV - Making transfers (im)possible) -- An analysis of human rights concerns in the envisioned Dublin IV Regulation
Abstract: This thesis aims to analyse the prohibitions of transfers of asylum seekers in the Dublin System, and how compatible the Commission’s Proposal for a Dublin IV Regulation is with human rights law. The Dublin System is meant to allocate responsibility between Member States regarding asylum applications. After the responsible Member State has been decided according to certain criteria, the asylum seeker is meant to be transferred to a receiving Member State. However, the Dublin III Regulation has been struggling with inefficiency, due to its lengthy procedures and lack of procedural guarantees and safeguards. The Dublin III Regulation has been criticised due its incompliance with human rights law. Transfers under the Dublin system were prohibited in several so called ‘Dublin cases’ by the European Court of Human Rights, as the living conditions and flawed asylum procedures in Greece and Italy violated Article 3 of the European Convention of Human Rights. The most notable cases are M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland, which requires Member States to conduct individual assessments and offer individualised guarantees to asylum seekers that their right to non-refoulement will not be violated. The requirements of individual assessments and guarantees in Dublin transfers is problematic for the EU, as the transfer system is based upon a presumption of that all EU Member States comply with human rights. Ergo, an individualised control should not be necessary. The reasoning is derived from the principle of mutual trust between EU Member States. The Court of Justice of the European Union has therefore been reluctant to prohibit Dublin transfers on human rights grounds. In the ruling N.S. and M.E, the Court limited the prohibition of transfers to cases where there are systemic flaws in the receiving Member State. The European Commission lodged a Proposal for a Dublin IV Regulation in December 2016, aiming to reform the Dublin System and increase its efficiency. The Proposal does not make the Dublin System coherent with human rights law, and has been criticised by the European Parliament, UNHCR, ECRE and the EESC. In three different issues, there is a continued risk for non-refoulement violations according to Article 3 and 13 of the ECHR. Firstly, the prohibition of transfers remains limited to systemic flaws in the receiving Member State’s asylum system. Secondly, the introduction of generalised inadmissibility checks based on safe country considerations risks similar violations. Thirdly, the withdrawal of procedural guarantees and safeguards for unaccompanied violates both the right to non-refoulement and the principle of the best interest of the child. The European Parliament subsequently amended the Commission’s Proposal. The Parliamentary amendment is, in contrast to the Commission’s Proposal, largely coherent with human rights law. It remains to be seen whether the Dublin IV Regulation will be passed, and if so in what version. This thesis reaches the conclusion that the Commission’s Proposal would make Dublin transfers impossible, as the proposal is incoherent with human rights law and risks continuous violations of Article 3 and 13 of the ECHR.
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