Dismantling the Dublin System: M.S.S. v Belgium and Greece

Abstract

The establishment of a mechanism to determine the country responsible for an asylum application lodged in one of the Member States by a third-country national has been a priority of the EU since before asylum policy was communautarized. Pursuing the ambition of setting up a Single Market as a borderless area, a group of Member States started the Schengen cooperation already in the 1980s.1 Persuaded of the fact that the abolition of internal frontier formalities among themselves would facilitate travel and entail a loss of control over the movement of third-country nationals within the Union, a series of ‘complementary measures’ was adopted ‘to safeguard internal security and prevent illegal immigration’.2 One of these measures was introduced by Chapter VII of the Schengen Convention. With a view to avoiding abuse through ‘asylum shopping’,3 articles 28 to 38 of the Schengen Convention laid down common rules to identify responsibility for processing asylum applications so that ‘regardless of the Contracting Party with which an alien lodge[d] an application for asylum, only one Contracting Party [would] be responsible for processing that application’.4 The arrangement was supposed to work as a deterrent of applications motivated by differences in reception conditions or procedural standards targeted at those Member States perceived to grant the most favourable treatment to asylum seekers. The aspiration was that Chapter VII, through the elimination of the possibility to choose the country of asylum, would provide a levelled playing field fostering the even distribution of applicants across Schengen jurisdictions, on the assumption that all State Parties accorded similar levels of protection. Since 1997 the Schengen Convention was superseded within the EU realm by the so-called ‘Dublin Convention’,5 from which the current ‘Dublin Regulation’ takes the name.6 The Dublin Convention