The big influx
of asylum seekers from third world country to the European Union created new
challenges for the European Member States in pre-Dublin era. Despite the
ratification of the 1951 Geneva Convention by all Member States, meaning that
Member States accepted the universal ‘refugee’ definition and the principles laid
down in the Convention (principle of non?refoulement and
the rights attached to refugee status),
but the way of application of these principles still varied strongly from one
Member State to another. In order to respond to the growing number of asylum-seekers,
Member States individually embarked on various restrictive measures1
such as an opt-out policy aimed at blocking access to their territory,
non-admission policies that shift responsibility for protection to other
countries, reforms to the procedures for processing asylum applications and
changes in the treatment of asylum-seekers during the application consideration
affected neighbouring countries, which, in turn, led to a “race to the most
restrictive policy with significant results in respect of the right to
asylum”2. International law on the rights of refugees
never gives an answer to the question of which state should be responsible for
providing international protection to the refugee3.
The lack of a mechanism for allocating responsibility in combination with the
different asylum regime led to secondary migration movements in Europe, as many
asylum seekers who entered European Member State, travelled to another Member
State, where their asylum application would be more successful. This situation
gives a rise to two phenomena such as asylum shopping and refugees in orbit.
refers to the practice by asylum seeker of applying for asylum in multiple
Member States or seeking to apply in a particular Member State after transiting
This may lead to lodging of several asylum applications by the same person in
different Member States. Refugees in orbit is a refugee who, although
not returned directly to a country where they may be persecuted, is denied
asylum or unable to find a State willing to examine their request, and are
shuttled from one country to another in a constant search for asylum5.
order to avoid multiple asylum application and situation, where one application
for asylum would fall within the jurisdiction of more than one State or none of
them, the EU introduced so called Dublin system6.
ECRE, ‘Report on the Application of the Dublin II Regulation in Europe’ (ECRE
& ELENA 2006), 6; Hatton and Williamson, 15-16
Marinho and Matti Heinonen, ‘Dublin After Schengen: Allocating Responsibility
For Examining Asylum Applications In Practice’ 1998 3 EIPASCOPE, 1
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered
into force 22 April 1954) 189 UNTS 137 (Geneva Convention)
And Migration Glossary (3rd edn, European Migration Network 2014).
6 Steve Peers, EU Justice And Home Affairs
Law (Pearson Education Limited 2000).