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The Dublin Convention. A Contemporary Asylum System Within The European Union.

Sandgren, Pernilla (2001)
Department of Law
Abstract
The need of a European immigration policy within the EU appear to be evident. Until fairly recently, immigration and asylum policy was strictly the concern of every national state but since the mid-80s, a clear intensification of cooperation has taken place. The measures taken in this field the last 15 years have been concentrated on exclusion of foreigners. The Single European Act introduced an area without internal frontiers but created at the same time a fear of promoting a territory where illegal activities would be rampant, due to the lack of checks at internal borders. To compensate for the security risks, France, Germany and the Benelux countries instituted a common policy with respect to immigration, police and criminal justice,... (More)
The need of a European immigration policy within the EU appear to be evident. Until fairly recently, immigration and asylum policy was strictly the concern of every national state but since the mid-80s, a clear intensification of cooperation has taken place. The measures taken in this field the last 15 years have been concentrated on exclusion of foreigners. The Single European Act introduced an area without internal frontiers but created at the same time a fear of promoting a territory where illegal activities would be rampant, due to the lack of checks at internal borders. To compensate for the security risks, France, Germany and the Benelux countries instituted a common policy with respect to immigration, police and criminal justice, Schengen. In Maastricht, matters falling within the sphere of justice and home affairs were brought into the Treaty on the European Union. However, a majority of them they did not fall under Community competence. The regulation listing visa requirement for third country-nationals is an important exception but other adopted instruments are not legally binding and their impact of minor significance. Hopefully, these negative aspects will be diminished by the ToA. The Area of Freedom, Security and Justice brought with it a new title in the EC Treaty on free movements, asylum and immigration. Immigration policy has been transferred from the third to the first pillar and the Schengen aquis has partly been incorporated into the first pillar. This development will facilitate the adopting of binding measures, which will be completed five years after the entry into force, May 2004. The most prominent instrument which has taken a leading role in the current debate is the Dublin Convention. The purpose is to allocate the responsibility for asylum applications to one Member State and to prevent undesirable elements, such as 'refugee-in-orbit' situations and 'asylum-shopping'. Unfortunately, the instrument has not worked out as well as one hoped for. The Convention may certainly be seen as an effort to harmonise the existing approaches among the Member States but it took place without guaranteeing a common standpoint as to both substantive and procedural aspects. As a result, the harmonisation is limited. The 'safe country' concept is not as such legally incorporated in the DC but has nevertheless a heavy impact on the asylum policy within the EU. The shortage of a common position as to determine a country safe, is experienced as a serious scarcity as it may lead to a violation of the prohibition of refoulement. An aspect which, until very recently, has been unharmonised and therefore treated differently among the Member States is temporary protection, linked to access to status determination and social rights and the lack of a common refugee definition. The latter is troublesome, not only in respect of recognition rates but also regarding transfer from one country to another under the Dublin Convention, since the mutual trust in respective legislation is assumed. A Member State faced with deportation of an asylum seeker to another Member State because of the hierachical order pointing out the responsible state, may find the situation rather unfortunate if the interpretation made by the two states differ strikingly. In such a situation, the affected state can choose to act according to its conscience, stopping the deportation or act in the interest of the Community, i.e. prevent the beginning of a schism which may lead to disruption, by complying the transfer decision. Another aspect of the procedure which raises major concern can be found in the rarely granted suspensive effect a pending decision has. Consequently, an asylum seeker may find himself deported to a third country before the outcome of a case is announced. Finally, it remains to see whether the development after Amsterdam involves any improvement and convergence or not. At long last, the Community institutions have realized the necessity of a renewed asylum approach, shown in Tampere where the work towards a Common European Asylum System was established. (Less)
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author
Sandgren, Pernilla
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EG-rätt, Folkrätt
language
English
id
1561743
date added to LUP
2010-03-08 15:55:29
date last changed
2010-03-08 15:55:29
@misc{1561743,
  abstract     = {The need of a European immigration policy within the EU appear to be evident. Until fairly recently, immigration and asylum policy was strictly the concern of every national state but since the mid-80s, a clear intensification of cooperation has taken place. The measures taken in this field the last 15 years have been concentrated on exclusion of foreigners. The Single European Act introduced an area without internal frontiers but created at the same time a fear of promoting a territory where illegal activities would be rampant, due to the lack of checks at internal borders. To compensate for the security risks, France, Germany and the Benelux countries instituted a common policy with respect to immigration, police and criminal justice, Schengen. In Maastricht, matters falling within the sphere of justice and home affairs were brought into the Treaty on the European Union. However, a majority of them they did not fall under Community competence. The regulation listing visa requirement for third country-nationals is an important exception but other adopted instruments are not legally binding and their impact of minor significance. Hopefully, these negative aspects will be diminished by the ToA. The Area of Freedom, Security and Justice brought with it a new title in the EC Treaty on free movements, asylum and immigration. Immigration policy has been transferred from the third to the first pillar and the Schengen aquis has partly been incorporated into the first pillar. This development will facilitate the adopting of binding measures, which will be completed five years after the entry into force, May 2004. The most prominent instrument which has taken a leading role in the current debate is the Dublin Convention. The purpose is to allocate the responsibility for asylum applications to one Member State and to prevent undesirable elements, such as 'refugee-in-orbit' situations and 'asylum-shopping'. Unfortunately, the instrument has not worked out as well as one hoped for. The Convention may certainly be seen as an effort to harmonise the existing approaches among the Member States but it took place without guaranteeing a common standpoint as to both substantive and procedural aspects. As a result, the harmonisation is limited. The 'safe country' concept is not as such legally incorporated in the DC but has nevertheless a heavy impact on the asylum policy within the EU. The shortage of a common position as to determine a country safe, is experienced as a serious scarcity as it may lead to a violation of the prohibition of refoulement. An aspect which, until very recently, has been unharmonised and therefore treated differently among the Member States is temporary protection, linked to access to status determination and social rights and the lack of a common refugee definition. The latter is troublesome, not only in respect of recognition rates but also regarding transfer from one country to another under the Dublin Convention, since the mutual trust in respective legislation is assumed. A Member State faced with deportation of an asylum seeker to another Member State because of the hierachical order pointing out the responsible state, may find the situation rather unfortunate if the interpretation made by the two states differ strikingly. In such a situation, the affected state can choose to act according to its conscience, stopping the deportation or act in the interest of the Community, i.e. prevent the beginning of a schism which may lead to disruption, by complying the transfer decision. Another aspect of the procedure which raises major concern can be found in the rarely granted suspensive effect a pending decision has. Consequently, an asylum seeker may find himself deported to a third country before the outcome of a case is announced. Finally, it remains to see whether the development after Amsterdam involves any improvement and convergence or not. At long last, the Community institutions have realized the necessity of a renewed asylum approach, shown in Tampere where the work towards a Common European Asylum System was established.},
  author       = {Sandgren, Pernilla},
  keyword      = {EG-rätt,Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Dublin Convention. A Contemporary Asylum System Within The European Union.},
  year         = {2001},
}