So much for sanctuary: how an EU asylum rule 'results in death'

On Thursday, Austrian police opened the back of a truck abandoned on the side of a motorway to find the bodies of 71 migrants. They had suffocated after paying smugglers to transport them across the border from neighbouring Hungary. The bodies were so decomposed it took a day to determine the number of dead.

Some, perhaps all, were Syrian refugees, most likely trying to reach Germany. Despite having made it into the EU’s passport-free Schengen zone, they still felt the need to travel clandestinely to avoid being fingerprinted and registered for asylum in Hungary, which would have offered them few opportunities to work or integrate.

“This tragedy comes as a cruel reminder that the Dublin Regulation results in death,” commented Hungarian NGO Migszol in a blog posted shortly after the news broke. “What we need is a safe passage through our country, and for that, we need to fight the European legislation.”

Under the EU’s Dublin Regulation, asylum seekers registered and fingerprinted in one country, for example Hungary, can be returned there if they later try to register an asylum claim elsewhere, say in Germany or the UK. The rule was designed to determine which member state was responsible for processing an asylum claim and to deter people from registering multiple claims. In practice, northern EU states have used it to avoid processing claims for people already registered in another country - usually frontline states such as Italy, Greece and Hungary.

We see people who have burned the skin off their fingertips in an effort to avoid being fingerprinted

Even before the EU’s current struggles to formulate a more harmonized response to the record numbers of migrants arriving at its sea and land borders, the Dublin system was under pressure. Germany’s decision earlier this week to suspend “Dublin transfers” of Syrian asylum seekers to other member states has raised further questions about its future.

Critics point out the rule places an unfair burden on frontline states such as Greece and Italy, which are already struggling to cope with thousands of new arrivals and deters such states from fingerprinting and registering. Italy in particular has been accused of failing to fingerprint a significant portion of the 170,000 migrants who arrived there by boat in 2014.

For their part, asylum seekers intent on joining family members in Sweden or Holland, or on finding work in the UK, are extremely reluctant for their fingerprints to be loaded into Eurodac, an EU-wide fingerprint database.

Greg O’Ceallaigh, a London-based barrister who deals with Dublin removals of asylum seekers from the UK back to countries such as Italy, said that many asylum seekers were taking clandestine routes through Europe to evade detection until they reached a country where they had a family member or at least spoke the language.

“We see people who have burned the skin off their fingertips in an effort to avoid being fingerprinted,” he told IRIN.

Many of the criticisms of the Dublin system are not new. As well as placing additional pressure on frontline states, it forces refugees to stay in a country where they may have no family connections, cannot speak the language, and struggle to support themselves.

According to a 2013 report by the European Council on Refugees and Exiles (ECRE), the regulation has also often resulted in asylum seekers being detained for long periods, separated from their families and denied the opportunity to appeal transfer decisions. 

Such concerns have resulted in numerous court cases challenging Dublin transfers, including a 2011 European Court of Human Rights ruling that asylum seekers cannot be transferred to Greece, which is still respected by most member states, and three revisions of the original regulation which was drafted in 1990.

The most recent version – Dublin III - came into force in January 2014, and, on paper at least, it offers more protections to asylum seekers, said O’Ceallaigh. For example, when determining where a claim should be registered, presence of close family members in a country is given more weight and should in theory trump the first-country-of-arrival rule.

In reality, it rarely does, said Maria Hennessey, a legal officer with the Irish Refugee Council.

“I really think there needs to be a fundamental change,” she added.

The European Commission appears to agree. It welcomed Germany’s move as “an act of European solidarity” and has encouraged member states to accept 40,000 asylum seekers who would be relocated from Greece and Italy over two years.

So far, member states have reluctantly agreed to take in a total of 32,000. More than 100,000 migrants have arrived in Italy and Greece in July alone.

“I think it’s really admirable what Germany’s doing but everyone else needs to step up,” said O’Ceallaigh.

“There does need to be a more politically brave response to all of this; a proper pan-European asylum strategy.”