20 Dec 2019

When mobility is not a choice

Problematising asylum seekers’ secondary movements and their criminalisation in the EU

Sergio Carrera / Marco Stefan / Roberto Cortinovis / Ngo Chun Luk

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The notion of ‘secondary movements’ is commonly used to describe the mobility of third country nationals for the purpose of seeking international protection in an EU member state other than the one of first irregular entry according to the EU Dublin Regulation. Secondary movements are often identified as a major insecurity factor undermining the sustainability of the Schengen regime and the functioning of the EU Dublin system. Consequently, EU policies have focused on their ‘criminalisation’, as testified by the range of sanctions included in the 2016 CEAS reform package, and on a ‘policing’ approach, which has materialised in the expanded access to data stored in the EURODAC database by police authorities, and its future interconnection with other EU databases under the 2019 EU Interoperability Regulations.

This Paper shows that the EU notion of secondary movements is flawed and must be reconsidered in any upcoming reform of the CEAS. The concept overlooks the fact that asylum seekers’ mobility may be non-voluntary and thus cannot be understood as a matter of ‘free choice’ or in terms of ‘preferences’ about the member state of destination. Such an understanding is based on the wrong assumption that asylum seekers’ decisions to move to a different EU country are illegitimate, as all EU member states are assumed to be ‘safe’ for people in need of international protection.

A key lesson learned from more than twenty years of implementation of the EU Dublin system is that the ‘presumption of safety’ between EU member states has been a powerful source of protective failures due to dysfunctions of asylum systems in member states to which asylum seekers have been transferred according to Dublin criteria. This circumstance has forced asylum seekers, subsidiary protection beneficiaries and refugees into situations of destitution, social exclusion, extreme poverty, and institutional discrimination.

The current overriding policy focus on the ‘symptoms’ of onward movements and the emphasis on the fact that asylum seekers should not be allowed to ‘choose’ their member state of destination has prevented a proper debate on the actual drivers and protection-related motivations that may lead protection seekers to move elsewhere inside the EU. Defining onward movements of asylum seekers as ‘choices’ or ‘preferences’ disregards the constraints and obstacles that asylum seekers face when trying to access adequate and durable protection in the EU.

Intra-EU mobility of asylum seekers should be de-securitised and de-criminalised. Due consideration should be paid to individuals’ legitimate and humanitarian-related reasons for seeking protection in a member state different from that of first irregular entry, and protecting their privacy as owners of their data held in EU information systems. The Paper puts forward two main recommendations: first, the introduction of an individual humanitarian clause amending Article 17.2 of the EU Dublin Regulation. This clause would provide asylum seekers with a right to request directly to any EU member state an exception to the application of the Dublin Regulation based on humanitarian grounds. Second, an effective complaint mechanism enabling access to justice to asylum seekers and migrants whose privacy and other fundamental rights might be affected by unlawful access and storage of their data in EU interoperable databases.