Several news outlets are reporting this morning that the Dublin III Regulation is likely to be scrapped by the Commission in March. It may be that Peter Sutherland, the UN Special Representative on Migration, was right when he said last year that the Regulation was “dead”.

If it is dead – and that is not at all clear yet – what killed it?

The obvious answer is the sheer number of entrants over the past two years, which has made the Regulation virtually impossible to fully enforce and placed a political and economic strain on some of the countries in Europe least able to bear it. The decision of Angela Merkel to consider the asylum claims of the huge volume of Syrian refugees pouring into Germany effectively bypassed the Dublin Regulation entirely; a great many of those people could have been returned to one of the countries on Europe’s edge.

A second answer is that the Regulation has never been used properly by Members States, with Northern countries tending to disregard e.g. the family reunion provisions and return whoever they can to Southern countries, who did their best to avoid fingerprinting people in the first place. The whole point of Dublin III was to make the decision as to which refugee went where more sensible and fair, but as with Dublin II, its provisions are often ignored.

Whenever I have spoken to employees of the Commission at conferences they have either displayed utter bewilderment at the way the Regulation has been interpreted in Member States and the CJEU (“well obviously a systemic deficiency isn’t the only way to breach Article 3 ECHR” was a memorable quote in the dark days pre-EM(Eritrea) v SSHD [2014] UKSC 12) or an alarming naiveté. I was recently asked how quickly the Home Office informs those subject to the Regulation of their right to challenge the decision. In fact it is usually the Home Office position that there is no right of appeal against the allocation of state at all, despite the words of Article 27 which could not be clearer.

Similarly, Article 28 of the Dublin III Regulation requires that people should not be detained for the sole reason that they are subject to the Dublin procedure without an extra “significant risk of absconding”.

However, being subject to the Dublin procedure actually makes you more likely to be detained than if you are not – often for many months. This comes about because the Home Office will always deem anyone being subjected to the Regulation both an absconding risk and likely to be imminently removed, which means they are reflexively detained. If challenged, the reasoning is invariably that a person who enters unlawfully and has no family in the UK (i.e. is subject to Dublin return) is a significant risk of absconding. If that is right, then Article 28 is entirely meaningless. It is not difficult to see why the Commission might have lost patience with the attitude of Member States.

There are no details on what might replace the Regulation if it goes, but it appears that the principle of return to first country of entry will probably end. This will be of some relief to Italy and Greece, who had around 200,000 and 800,000 entrants respectively in 2015. It will also be a considerable relief to those who wanted to claim asylum in Europe, but did not necessarily want to be destitute on the streets of Rome. Challenges to the lawfulness of removal to Italy, Austria, Hungary, Bulgaria, Malta, France and Cyprus are ongoing.

What the end of Dublin means politically is difficult to say. While those who favour the United Kingdom leaving the European Union say that this will mean that refugees are more likely to seek out the United Kingdom, that overlooks the obvious point that whatever replaces the Dublin Regulation will mean fewer refugees in the United Kingdom than no deal at all.

It is now reasonably clear that the Dublin III Regulation has failed, whether that is because of its cynical application by Member States or because of the increase in entrants due to the catastrophe in North Africa. Whatever replaces it must be fair to Member States and fair to the people risking their lives to escape persecution.

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