Table of Contents: I. The current scenario. Dublin and Schengen in crisis? – II. The initiatives of the European institutions. A censurable delay. The need for solidarity between Member States. – III. The first derogation of the “Dublin system”. The controversial mechanism of replacement and the institutionalisation of exceptions. – IV. The criticality and inadequacy of the current system. The prospects for reform. What rights for the migrant? – V. Some final considerations.
Abstract: The huge surge in migration into the European Union, particularly over the last two years, has revealed the inadequacy of the current legal framework. The Dublin III Regulation, which establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, now appears outdated. The initiatives devised by the European Commission to alleviate the burdens on the countries most exposed, activating for the first time the emergency mechanism under Art. 78, para. 3, TFEU, have proven to be largely ineffective and have faced stiff opposition from various Member States on both political and legal grounds. The resettlement programme introduced to ensure safe and legal access into the European Union has also failed to achieve the desired results. The debate has now turned to how to overcome the limitations of the current system. The European Agenda on Migration presented in May 2015 proposed the establishment of a single asylum decision process, to guarantee equal treatment of asylum seekers throughout Europe, and a mechanism for mutual recognition of positive asylum decisions. The European Commission now seems set to develop a relocation mechanism based on a distribution key. The new system must nonetheless ensure a fairer sharing of responsibility while guaranteeing effective solidarity between Member States and respect for the fundamental rights of people.
Keywords: international protection – Dublin Regulation – re-location – resettlement – solidarity – fundamental rights.
* Professor of European Union Law, University of Milan, firstname.lastname@example.org. The Author wishes to thank Dr. Alessia Di Pascale for her valuable comments and assistance in drafting the paper.