The future of Europe passes through the Dublin system

“The crisis of today’s Europe is not a ‘Schengen crisis’ but a ‘Dublin crisis’”. An interview with Gianfranco Schiavone, Italian jurist and expert on migration issues

Gianfranco Schiavone, president of the Italian Consortium of Solidarity (ICS) and vice-president of the Association for Juridical Studies on Immigration (ASGI), recently returned from Skopje, where he attended the final conference of the Migralona project, promoted by the Central European Initiative (CEI), in collaboration with the Network of Associations of Local Authorities of South East Europe (NALAS). The Migralona project – consisting of a series of seminars held in six Western Balkans countries that are candidates or potential candidates for EU membership – aimed to contribute to better governance of migration flows along the Balkan route, in particular by familiarizing representatives of local authorities with the methodology and objectives of the Italian SPRAR programme (Protection system for asylum seekers and refugees). We interviewed Schiavone in Bologna, at the conclusion of the coordination meeting of EuropAsilo, the Italian network for promoting the right to asylum.

How did the Migralona project go?

I confess that I was a bit skeptical at the beginning, because during the first few meetings it became evident that our interlocuters were quite unfamiliar with the entire problematic. Then things changed. Sure, there is still a lot to be done. Many Western Balkan countries think that they don’t have much to do with migrations, or rather they still see themselves only as transit countries where nobody wants to stay. They have a hard time seeing that the situation is changing and that a certain number of refugees, at first very small, will start choosing the Western Balkans not as a transit zone but as a place where to settle.

I have also seen first-hand how difficult it is for them to understand that it is necessary to create a migrant reception system that is as different as possible from to the current one consisting of refugee camps which cause – as it has been, and still is happening in Italy – a range of negative phenomena such as social discomfort, ghettoisation, waste of public recources, concentration of power (and money) in the hands of a few, organized crime infiltration.

However, despite all the difficulties, awarness of this issue seems to be growing, as evidenced by conclusions of the project adopted during the final conference in Skopje. Institutional representatives of several Western Balkan countries have recognized the need to undertake new, experimental projects in the field of refugee reception and protection, which would involve local comunities, following an approach – in Italy called “diffused reception” – aimed to give asylum seekers the possibility to live in normal housing and social conditions and move freely.

What is the current situation regarding the Common European Asylum System?

The Common European Asylum System is a political and normative process under way in the European Union for a long time, aiming at the progressive harmonization of national legislations in the field of asylum (conditions under which international protection is granted, procedures for granting and withdrawing international protection, standards for the reception of asylum seekers), in order to achieve a common asylum system in all member states.

It is obviously not possible, and probably not even desirable, to achieve absolute uniformity, because every European country has different history, traditions, legal system and sensitivity with regard to forced migrations. History cannot be erased nor can anything be harmonized in a short period of time. However, if one of the main objectives of the European Union, as envisaged by the Lisbon Treaty, is the creation of a single area of freedom, security and justice, then the differences between national regulations in the field of asylum must be drastically reduced. Experience over the last decade shows that there is still a long way to go.

Differences are still so big that the same international protection claim that would almost certainly be accepted in one member state, would almost certainly be denied in some other state, which clearly shows that substantial harmonisation is far from being achieved.

Profound differences in criteria and procedures for recognizing the right to one of the two forms of international protection, i.e. asylum and subsidiary protection, accompanied by even bigger differences in the way refugee reception and integration systems are organised, are the major driving force behind the so-called “secondary movements”: asylum seekers go where they have better chances of having their claims approved, where they get better protection and have better opportunity of integration.

For example? In Germany, Sweden…?

It depends on the nationality of asylum seeker. Italy is currently affected by large inflows of asylum seekers of certain nationalities who go there because their applications are evaluated more favourably. It’s the case of Afghans, Pakistanis, Iraqis… Although Italy doesn’t offer adequate guarantees and has low standards of protection, the number of asylum seekers of the above-mentioned nationalities is very high because their claims most often get approved. These persons could apply for asylum in some other country, but they choose to do it in Italy.

I am not saying that here the situation is better or worse than elsewhere, but rather that the treatment largly depends upon the nationality of asylum seeker.

The weight of national preferences, which are also political preferences, as well as the weight of traditions and internal laws, that is, a whole range of legal and extra-legal factors, heavily influences differentiation that, strictly speaking, European directives should prevent or largely limit. And we are talking about differences in asylum approval rates ranging from 10% to 90%, a disparity which might lead to believe that there are no directives in this field. So, directives define criteria, which are then implemented in national law in very different ways.

So, local courts are those who make distinctions?

Not so much courts but rather the administrative authorities in charge of examining asylum applications. Courts get involved only in case of appeal against the rejection of application.

There still remain considerable differences in “procedures”, i.e. in the way applications are being examined: whether or not to use the criterion of “manifestly unfounded” application, “accelerated” procedure, “prioritised” procedure; as well as differences in the use of the concept of “third country” and that of “safe zone” within the country of origin.

It emerges that there is a multitude of juridical institutes which cause significant differences in the way member states assess asylum applications and, subsequently, large disparities in approval rates.

Some countries are very rigid when it comes to approving asylum claims…

In Latvia asylum claims are practically nonexistent. That’s a consequence of a perverse mechanism of low-balling: many countries take various measures in order to make themselves unattractive for asylum seekers, for example by adopting particularly rigid criteria for examining asylum applications. What emerges here is a malicious political intentionality.

This is the case with Slovenia, that rejects most asylum applications which in Italy would almost certainly be approved. There are massive rejections of applications from Syrians, Iraqis, Afghans who have a 100% approval rate in Italy. It’s a stratagem used by the state to make itself unattractive and it’s carried out on various fronts: applications are massively rejected; reception centers are closed-type and isolated, with very few integration programs; criterion of “safe zone” – location in the country of origin of asylum seeker which is considered safe enough for her/him to return to – is often used to create an alibi for refusing applications.

The latter criterion is not being applied in Italy. This legal concept, defined as opitional by the European directive, has not been incorporated in the Italian legislation, so the country of origin of asylum seeker is regarded as a whole, asylum is not being denied under the excuse of safe zone.

And yet, we are still talking about a common asylum system…

Today we are very far from having a common asylum system, because we never really wanted one. National egoisms prevailed, and then they took opposite directions.

The European Commission is tackling this issue, unlike national governments, that pay almost no attention to it. If it were otherwise, we would have a harmonious asylum system and we would be able to take all the steps forward that need to be taken, starting from the most glaring of all shortcomings, and that’s the Dublin Regulation – the last element that closes the circle of a failed European asylum system.

The current system is such that an asylum seeker does not enter the European Union but one specific state, and s/he enters, obviously, where s/he can, running away. And that country, according to the Dublin Regulation, is competent to examine her/his request.

The Dublin Regulation, unlike directives, doesn’t leave room for interpretation…

Let’s begin with the conclusion: the Dublin Regulation is a major obstacle to creating a common asylum system. How is it possibile to have a common asylum system based on the mechanism by which the responsability for examining asylum applications is attributed on the basis of a casual, geografic criterion, linked to the place of arrival of refugees?

The Dublin Regulation has not resulted in a single common asylum system, but in many national systems. If we had thought from the beginning that refugees were entering the EU and that it was necessary to put in place relocation mechanism, Latvia would have to accept a certain number of refugees, even if they all had first arrived in Sicily, so it would have less interest in undermining system integration and refusing applications, because in the end it would have to fulfill its quota and manage the situation.

Today, instead, the refugees that enter a certain state are considered to be the exclusive concern of that state. The others wash their hands of the matter.

Why do EU countries reject refugee quotas? Because the quota system, based on the principle that the place of arrival is irrelevant, implies that everyone must take their share of the responsibility. Distribution of refugees would be carried out on the basis of criteria upon which not everyone would necessarily agree, which can become the object of discussion, but which would be objective: population, GDP, number of refugees admitted, number of persons resettled, etc.

The reform of the Dublin Regulation is the key to change the current system. It is first necessary to reach a consensus on the idea of refugee protection as a shared responsability, then we can start talking about harmonizing and standardizing the system.

Countries like Hungary, which were confronted with a massive wave of refugees, should support the introduction of quotas, but that’s not the case…

A member state situated on the external border and along an “escape route” should push for reform which envisages the introduction of mandatory quotas. But that’s not always the case because unscrupulous political calculations often prevail. Hungary’s authoritarian neo-populism has built its political fortune on the image of a heroic nation constantly fighting to prevent refugees from entering Europe in order to preserve its history and identity. Let us recall Orban’s propaganda slogan: “We are saving Europe from Muslim invasion”. Although it would be logical that Hungary is among supporters of refugee relocation mechanism, assuming that position would be the worst scenario for Hungarian leadership because it would undermine its neo-populist political identity. It is no coincidence that Hungary scornfully refused to participate in the EU relocation program which originally envisaged relocations of refugees not only from Italy and Greece but also from Hungary.

Should the same apply to Italy, as a country where many refugees first arrive?

The Italian situation, as bad as it is, is not comparable to the Hungarian in terms of seriousness of the crisis of the rule of law. Nevertheless, our country bears great responsability for the current state of things: despite being one of the most influential countries in the EU, Italy has so far maintained an indecisive, and (I am afraid) ambivalent position on the revision of the Dublin III Regulation.

The reform of the Dublin system has never been a focus of Italian politics, not even when – as was the case during 2016 and part of 2017 – the inflow of asylum applicants to Italy increased to such an extent that all political forces deemed the situation unsustainable in the mid to long term.

The democratic battle aimed at protecting the right to asylum and, at the same time, at overcoming the egoism of member states, has been abandoned in favor of a desperate policy which has been, and still is trying in every possible way to block migrant flows to Europe. It’s easy to condemn Orban’s wall because it’s made of sheer brutality, but even though relations between Italy and Libya, and some other African transit countries, Niger in particular, are characterised by less evident brutality and violence, both Hungarian and Italian politics are guided by the same unscrupulous logic.

In making its choices, Italian lifeless centre-left encouraged and embraced a political-cultural approach which doesn’t even belong to the right wing politics but to the extreme right. Italian left, which for years has been incapable of producing its own political idea about international migrations, in the end cannibalized itself, offering a horrible spectacle. It is not a tactical nor strategic mistake: it’s about something much more serious and profound, which might have ominous long-term consequences.

The Association for Juridical Studies on Immigration, of which you are vice-president, participated in the elaboration of a proposal for the reform of the Dublin Regulation. Can you present us its key elements?

Our proposal – supported by almost all Italian organisations active in the field of asylum – is based on two pillars. The first one entails the abolition of the anachronistic principle by which responsability for examining an asylum application belongs to the country where asylum seeker first entered, and the introduction of quota mechanism which would apply at all times, not only in times of crisis.

The European Commission, in its proposal for the reform of the Dublin III Regulation, presented in May 2016, recognized the need to change the current system, but proposed to introduce quotas only as corrective mechanism which would be activated in case of crisis, or rather when a member state receives the number of asylum applications that exceeds 150% of its annual fair share, which is calculated on the basis of its population and GDP.

At first glance, the Commission’s proposal may seem to be a first step toward an acceptable reform, but by sticking to the criterion of first country of entry, it maintains the same wrong approach that caused serious distortions within the European asylum system.

After a profound debate and confrontation, which surprised even me (and which demonstrated that renewal of political thought in Europe is still possible), the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) adopted a bold reform proposal, that envisages the introduction of a permanent relocation mechanism.

The second pillar of our proposal is even more innovative beacuse it’s based on an approach that the Commission has always opposed, envisaging that the genuine links that an asylum seeker has with a particular member state should be the main criteria for determining the state responsible for examining his application.

The two principles described above are not separable and constitute a legal formula aimed at achieving balance between a mechanism of mandatory relocation quotas and the migratory project of asylum seeker, recognising the importance of pre-existing links. A quota-based relocation mechanism alone cannot produce real reform, because it is destined to be overturned by secondary movements of asylum seekers which will continue trying to reach and stay in a country to which they are linked. And they will succeed, unless we decide to transform Europe in some sort of enormous prison camp by putting hundreds of thousands of people in administrative detention.

So, your proposal was positively evaluated and adopted by the European Parliament?

As I said, in mid-October 2017 the LIBE Committee voted to adopt the text proposed by the rapporteur, Swedish MEP Cecilia Wikström, but significantly modified the original version thanks to continuous efforts of Italian MEP Elly Schlein. Shorty afterwards, a group of MEPs – most of whom from the Visegrad countries – tried, probably induced by their governments, to thwart the proposal by bringing it to the plenary session, a procedure which is not necessary in the phase preceding a direct confrontation between the European Parliament and the Council. But the proposal resisted and, with plenary approval, instead of being thwarted it got strengthened.

Negotiations between the Council, the Commission and the Parliament aimed to achieve a compromise were suspended almost immediatly because of pre-existing profound divergences, further sharpened after the approval of the reform proposal by the Parliament, which surprised the Commission and the Council with its innovative approach. No further steps are expected before the end of the Bulgarian presidency of the Council and the beginning of the next European semester when Austria will assume the presidency. The second half of 2018 will probably be a decisive period. In this context, the silence of Italian authorities is striking, they appear completely unprepared to deal with issues concerning the future of Europe and of Italy.

What will happen with the reform now?

The reform has to be co-decided by the Council and the Parliament. At the moment I can’t give any reasonable prediction, I can only say that the political situation in Europe, worsened after the Italian general election and Orban’s victory in Hungary, induces pessimism about the possibility that the proposal voted by the European Parliament may be adopted. It’s more likely that it will be reached a compromise excluding the most important components of the Parliament’s proposal, such as the criterion of genuine link with a particular member state.

Countries of first arrival, like Italy, Greece, Spain, Hungary should push for the reform…

In theory, they should, but as I explained with regards to Hungary, internal political factors may provoke different scenarios.

So, this question goes straight to the core of the European idea, making evident the conflict between supporters of strongly united Europe and sovereignists…

That’s right. Civil society perceives the Dublin reform as a boring, technical issue that should left to bureaucrats, without understanding its political significance.

The crises of today’s Europe, intended as a space of free movement, is not a ‘Schengen crisis’ but a ‘Dublin crisis’. The public opinion, media – not only Italian – and even intellectuals fail to understand that the reform of the Dublin III Regulation is not just about the right to asylum, it’s about the functioning of the European Union.

How to sensitize the public opinion on the importance of the reform?

The technicisms typical of this issue in public communication should be overcome by emphasizing its political and cultural dimensions, in order to create a wide movement across Europe which will defend the result achieved by the European Parliament, and even push for an improvement of the text adopted, being aware that not just the right to asylum but the future of Europe is at stake here.