The 1990 Dublin Convention: A Comprehensive Assessment

Abstract

The 1990 Dublin Convention which entered into force on 1 September 1997, establishes a system determining the State responsible for examining the applications for asylum lodged in one of the Member States of the European Communities. This article will present a critical assessment of the operation of the Convention in light of State practice and case-law in Belgium, France, Germany, the Netherlands and the United Kingdom and provide some suggestions towards its improvement. The underpinning of the «Dublin system» is the principle of authorisation, under which the State which has «authorised» the entry of an asylum seeker on the territory of the Member State is responsible for examining his or her application. The Convention sets out objective criteria to determine the responsible State in accordance with that principle. Complex procedural rules have also been adopted to implement the Convention, including the draft EURODAC instrument which organises a centralised database of asylum seekers» fingerprints. Yet, various problems have appeared in the operation of the Convention. The scope of the Convention does not include applications for humanitarian protection, the conditions for family reunification are too strictly defined, and most importantly the difficulty of providing strong evidence of illegal entry into one of the Member States renders the Convention useless in many cases. The application of the «opt-out» clause, which creates a derogation to the criteria determining responsibility, is therefore quite common in humanitarian and family cases, but is also used by the authorities of the Member States to ensure the swift expulsion of asylum seekers. The very basis of the system, the principle of authorisation, should also be re-examined by the Commission which will present a proposal of Community instrument based on the Dublin instrument in the near future.

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