There has reportedly been a sharp increase in migrants attempting to cross the English Channel in small boats this year. This has raised questions about what mechanisms are in place to enable the UK to return migrants to other EU countries for consideration of their asylum claims. Those mechanisms are set out in the Dublin III Regulation.
This Insight explains the Dublin III Regulation, how it is used by the UK, and what may happen post-Brexit.
We use the UN Migration Agency (IOM) definition of a migrant.
What is Dublin III?
The Dublin III Regulation is EU legislation. It establishes the criteria and mechanisms for determining which Member State is responsible for examining an asylum claim made in the EU. It allows Dublin Member States to send requests to other Member States to “take charge of” or “take back” asylum applications (subject to time limits).
The Regulation was intended to ensure quick access to asylum procedures and reduce double handling of asylum claims by different States. It was adopted in June 2013, and subject to transitional provisions, was implemented from 1 January 2014 (Regulation (EU) No.604/2013). It is the third iteration of the legislation since 1990 (originally it was known as the Dublin Convention).
How does it work?
The Dublin III Regulation identifies the Member State responsible for determining an asylum application using a hierarchy of criteria. These include: family unity, possession of residence documents or visas, irregular entry or stay, and visa-waived entry. UK Government guidance on the Dublin III Regulation highlights that family unity is a primary consideration:
The provisions on family unity and the best interests of the child are primary considerations which may result in the State responsible for examining the asylum claim being the State where an asylum claimant’s family members or relatives, as defined in the Dublin III Regulation, are legally present or resident (depending on the circumstances of the case).
The European Parliament notes that in practice, however, the most frequently applied criteria is irregular entry. The application of that criteria means that the Member State through which the asylum-seeker first entered the EU is responsible for examining their asylum claim. Although this is the most frequently applied criteria, there are limits to the extent irregular entry can be used as a reason for transfer. For instance, a Member State will be responsible for a claim submitted by a person who has been living there for at least five consecutive months (known as tolerated illegal presence). This is true even when that person first gained entry into the EU by an irregular crossing of a border in another Member State.
How is an asylum seeker’s first point of entry determined?
Asylum applicant’s fingerprints are run through an EU database to determine which EU countries a person registered in.
The Eurodac Regulation (Regulation (EU) No.603/2013) states:
It is also necessary to require the Member States promptly to take and transmit the fingerprint data of every applicant for international protection and of every third-country national or stateless person who is apprehended in connection with the irregular crossing of an external border of a Member State, if they are at least 14 years of age.
The fingerprints are held in the Eurodac database which allows for Member States to determine if an asylum seeker has registered in another Member State and would thus be eligible for transfer. The database was established in 2003 in relation to the Dublin system and its scope has since widened; the current regulation allows for Europol to access the data in specific circumstances.
Fingerprints can be stored for up to two years and by the end of 2018, there were 5.3 million fingerprint datasets stored in the Eurodac central system; 97% were fingerprints of registered asylum seekers, whilst 3% were fingerprints taken in relation to irregular border crossing.
How many incoming and outgoing transfers are there under Dublin III?
According to Home Office figures, between 2015 and 2018, 7,365 incoming requests were made to transfer people into the UK under the Dublin regulation, from which 2,365 people were transferred to the UK (some requests may still be pending).
This means that the UK accepted around 33% of requests. During the same period, the UK made 18,953 outgoing requests to transfer people to other Member States, from which 1,395 people were transferred abroad. This amounts to around 7% of outgoing requests by the UK resulting in a transfer.
In 2018, the UK received a total of 37,453 asylum applications, and made 5,510 outgoing transfer requests under Dublin III. Of these 5,510 requests, 209 migrants were transferred out of the UK under Dublin III, whilst 1,215 came in, making the UK a net recipient in 2018.
Germany and France received the most asylum applications in 2018 (185,853 and 139,330). They are also the main users of the Dublin system. As can be seen below, Germany had the highest numbers of outgoing and incoming transfer requests. The figures for other Dublin Member States can be seen in the table below:
What will happen post-Brexit?
In a no-deal scenario the UK will no longer participate in Dublin III. The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 will come into force on exit day and revoke the Dublin Arrangements, although existing family reunion applications will be processed. If the Withdrawal Agreement is ratified the UK would remain in Dublin III during the implementation period.
Along the lines of the policy proposals of the May Government’ Immigration White Paper, Immigration Minister, Brandon Lewis said:
We want a close future partnership to tackle the shared challenges on asylum and illegal migration. Section 17 of the European Union (Withdrawal) Act 2018 commits the Government to seek to negotiate an agreement with the EU which allows for unaccompanied asylum-seeking children in the EU to join family members lawfully present in the UK, where it is in their best interests. This commitment stands whether we leave the EU with or without a deal. Effecting transfers relies on an agreement being in place and we endeavour to negotiate such an agreement as soon as possible.
It will still be possible for a UK asylum application to be considered inadmissible if the applicant first travelled through another EU country. This will be done through changes to the UK’s immigration rules which ‘ensure[s] continuity of approach, by widening the scope of other third country Rules to deal with these cases.’
The European Commission has committed to reforming the Dublin Regulation. Whilst the UK Government decided not to opt in, proposals were put forward for a Dublin IV regulation in 2016. These have proved contentious. Under the plans, a ‘corrective allocation mechanism’ would be introduced. This means asylum seekers would be automatically reallocated to another Member State if a country faced a disproportionate number of applications. A Member State would have the option to temporarily opt out but would have to make a “solidarity contribution’ of €250,000 per applicant, according to the European Commission.
- The UK’s refugee family reunion rules: striking the right balance?, House of Commons Library.
- Migrants crossing the English Channel, House of Commons Library.
About the authors: Melissa Macdonald is an assistant research analyst, and Hannah Wilkins is a senior researcher at the House of Commons Library. They specialise in immigration and asylum research.