V.  The Dublin System and the Failure of International Burden Sharing

At the Tampere European Council in 1999, the EU committed itself to establishing a Common European Asylum System (CEAS) that would harmonize refugee standards and asylum procedures throughout the EU.  Nearly 10 years later, despite multiple EC asylum directives, the reality is that wide disparities exist throughout the EU in the treatment of asylum seekers.  Far from a harmonized system, the EU is faced with a situation where Sweden would have a 91 percent approval rate for Iraqi refugees in the same year (2006) that Greece had an Iraqi asylum approval rate of zero.  Clearly the EU asylum system is not harmonized.  Nor is the refugee burden being shared equitably when those same two countries-Sweden and Greece-host three-fifths of all Iraqi asylum seekers in the EU.

Ostensibly to prevent "asylum shopping" and "refugees in orbit," the Dublin II regulation [15] sets out which member state is responsible for examining an asylum claim.  It normally will be the country of first arrival and applies to all EU member states, as well as Norway, Iceland, and Switzerland. [16]

Based on the assumption that all participating states have the same standards and procedures for determining refugee status, the Dublin system highlights how much lower Greece's asylum standards and procedures are in comparison to other European states.  Among its flaws, the Dublin system ignores the legitimate interest asylum seekers have in choosing where to apply for asylum and unfairly allocates the burden of processing asylum claims to the states on the EU's external frontiers.

Because of the dual failure of the Dublin system, two European countries, Sweden (because of its relative generosity) and Greece (because of its geographical location), have shouldered a disproportionate share of the Iraqi refugee burden-62 percent of all asylum applications lodged in the EU in 2007, to be exact.[17] Left nearly alone to bear the burden, both Sweden and Greece have reacted in ways that are as unfortunate as they are predictable. 

Sweden's reaction was to become much less willing to recognize Iraqis as refugees and less generous in offering asylum. It went from granting 91 percent of Iraqi refugee claims in 2006 to 25 percent in the first trimester of 2008.[18]  In the first half of 2008, only about 4,000 Iraqis lodged asylum claims in Sweden,[19] less than half the number who applied during the first six months of the previous year.

Greece has taken the approach of using noxious detention conditions, procedural obstacles to lodging claims, and illegal summary removals and abusive police and Coast Guard conduct to deter asylum seekers from entering Greece or, if they do succeed in entering, to dissuade them from staying or from seeking asylum there.

A more equitable and better managed approach by the EU as a whole might have put less of a burden on Sweden and Greece and resulted in better protection for Iraqi refugees.  But whatever the EU's failures in equitable burden sharing within the EU or the wider world, this does not obviate Greece's own responsibility to treat all human beings-migrants included-humanely and its obligation not to return refugees and asylum seekers to persecution or anyone to the real risk of inhuman and degrading treatment or worse.

Transfers to Greece under Dublin II

Iraqis and other non-EU nationals who enter the EU irregularly through Greece and then move further into the Union face the possibility of forced return to Greece under the Dublin system. [20]  

The state of destination can transfer an asylum seeker to the state of first entry, which the Dublin system regards as "responsible" for examining the claim for asylum.  The EURODAC fingerprint database makes such transfers possible. [21]   Member states fingerprint asylum seekers and then cross reference the fingerprint with the EURODAC system to determine whether the person previously entered another state. 

Transfer is not mandatory, however.  Article 3(2) of Dublin II, called the "sovereignty clause," permits a state to maintain responsibility for an asylum claim, even if under the regulation that individual could be transferred elsewhere. In April 2008, UNHCR called on European states to utilize this sovereignty clause and not return asylum seekers to Greece. [22]   UNHCR was heavily critical of the Greek asylum system.  It concluded that there was no meaningful assessment of an asylum seeker's claim in Greece, saying that asylum seekers in that country "often lack the most basic entitlements, such as interpreters and legal aid, to ensure that their claims receive adequate scrutiny from the asylum authorities." [23]    

UNHCR raised concerns about the so-called "interrupted" procedure.  Under Greek asylum law at that time, [24] where an asylum seeker had commenced a claim but did not continue with it-for example, by leaving Greece for another European country-Greece could regard the claim as "interrupted" and close it without further review.  Dublin returnees were unable, therefore, to renew their asylum claims after being transferred back to Greece.  Thus Greece completely subverted the supposed purpose of the Dublin system:  The Dublin system returned asylum seekers to Greece on the assumption that Greece was responsible for examining their claims, but Greece refused to examine their claims because they had left Greece to seek asylum in another European country.

On February 7, 2008 Norway preceded the UNHCR announcement by suspending all Dublin system transfers of asylum seekers to Greece.[25]  In March, a Swedish court stopped the transfer of a disabled Iraqi man to Greece,[26] and in May the Swedish Migration Board suspended returns of unaccompanied children to Greece, citing the Greek practice of detaining them for three weeks upon return.[27]  Also, in March 2008, the European Commission (EC) initiated an infringement procedure against Greece for breaching Article 3 (1) of the Dublin II regulation because it was continuing to prevent access to asylum procedures for persons transferred by other Dublin members to Greece.[28] In late April, Finland announced that it would suspend transferring migrants to Greece unless it received written assurances from Greece that they would be fairly processed.[29] 

Stung by the public rebuke and faced with an infringement proceeding before the European Court of Justice, Greece enacted a new refugee law on July 11, 2008 that allows asylum seekers transferred under the Dublin system to reopen their cases. [30]

The number of actual transfers of third-country nationals to Greece under the Dublin II regulation is modest.  In 2007, member states transferred only 747 persons to Greece under Dublin II. [31]   Member states made 3,306 requests for transfers during the year, of which Greece accepted 2,097 and rejected 380, but actual returns lagged far behind.  A similar pattern of few actual transfers relative to the number of requests and acceptances has been a consistent pattern since Dublin II went into effect, although the number of transfers to Greece has steadily grown from 350 in 2005 to 501 in 2006 and 747 in 2007. [32]   This growth pattern appears to be continuing in 2008 with 272 transfers in the first trimester of the year. [33]

The EU's Failure to Relieve the Iraqi Refugee Burden in the Middle East 

The burden of hosting Iraqi refugees has not only not been equitably or fairly shared within the EU; the EU has also failed to share the refugee burden with the wider international community.  UNHCR estimated in August 2008 that about 1.8 million Iraqi refugees were living in the Middle East.[34]  For the whole of the European Union, the number of Iraqi asylum seekers in 2007 was 38,286 and 19,375 in 2006.[35]  Although Iraqis were the largest nationality group seeking asylum in the EU in both those years, their numbers pale in comparison to the number of Iraqi refugees hosted by Syria (more than one million) and Jordan (about a half million).

Europe has done little to relieve the pressure on Iraq's neighbors or to share the burden by creating a legal mechanism to identify and protect Iraqi refugees.[36]  Although UNHCR had recommended 40,000 Iraqi refugees for third-country resettlement through August 2008, only 15,000 had departed the region, 10,000 of whom were resettled in the United States.[37]  As of August 2008, only seven EU countries had agreed to resettle any Iraqi refugees for an EU total of 1,752 since the beginning of the war in April 2003, and the EU's largest[38] and most successful[39] country, Germany, had not agreed to take a single one.[40]  In contrast, Syria was admitting an average of 2,000 Iraqi refugees a day through much of 2006 and 2007. 

Given the paucity of resettlement to the European Union, the only option for most Iraqis who want to seek asylum in Europe is to embark on a dangerous and illegal journey that exposes them both to the predations of traffickers and the abuses of law-enforcement officials.  A refugee seeking protection in the EU has little option but to cast off on a rubber dinghy or unseaworthy boat into the uncertainty of the Aegean Sea or to wade and swim across the Evros River.

Faced with a refugee crisis of the magnitude of the Iraqi emergency (with an estimated 2.8 million internally displaced persons and 1.8 million refugees),[41] the European Council could have recognized the existence of a mass influx through its "temporary protection" directive of 2001 or developed a long-overdue refugee resettlement mechanism to provide a legal mechanism to identify and protect refugees who need to be removed from the region.[42]  But it did not.  Instead, the EU exacerbated the lack of international solidarity and burden sharing by using the Dublin system to shift its own internal burden to Greece as the entry-point to the EU for most Iraqis and not even to share the responsibility of hosting its own relatively small number of Iraqi asylum seekers equitably among its members.