The Dublin System and Beyond: Which Way Out of the Stalemate?

The Common European Asylum System can be envisioned as a ‘progressive development’ of the international refugee regime at the regional level. However, the foundational raison d’être of its prime operational tool – the Dublin Regulation – is connected to the ‘exclusionary function’ of the common external borders of the Union. The inherent irrationality of Dublin cooperation has led to its recurrent deadlocks. Their impact on both asylum seekers’ rights and the principles guiding intra-EU cooperation has been tested before the European Court of Human Rights and the European Court of Justice on several occasions since the landmark rulings in the cases M.S.S. and N.S. The dialogue between the Courts offers precious guidance for a sustainable and effective reform of the Dublin system, but also calls on the EU legislator to do its part. On the contrary, the replacement of Dublin with greater externalisation, proposed by the European Council and the Commission since June 2018, seems unsuited for the purpose. This paper charters relevant case law and legislative status quo, in order to explore more legitimate and feasible alternatives to eventually escape from the Dublin stalemate.