Political debates
and popular discussions of mass migration and refugee flows are increasingly dominated
by a language of ‘crisis’ and the measures adopted at European Union (EU) level are conceived
with an emergency-driven mind-set. This has led to the rise of unorthodox
institutional and policy developments as a pragmatic rather than a legal
response to address the formidable challenges posed by the mass movement of
refugees that is witnessed in Europe. [1]
Schengen once seemed like a hermetic system: sealed, internally fluid and
unbreakable. [2]
But that was before the conflict in Syria sent a veritable flood of displaced
people in search of a safe harbour into Europe. [3]
In September 2015 the image
of the lifeless body of the Syrian three-year-old boy, Aylan Kurdi, washed
ashore on a Turkish beach galvanized public opinion into adopting a more humane
approach towards the plight of refugees and prompted the EU to take a more
decisive action. Following his death, and other equally shocking tragic events,
the Commission announced an emergency relocation scheme for 120,000
international protection seekers from Greece, Hungary and Italy [4] using a
mandatory distribution key [5] as well
as a permanent crisis relocation mechanism for all Member States on the basis
of Articles 78(3) and 80 TFEU, in actual fact a compulsory refugee quota
settlement system combined with a binding solidarity mechanism for all Member
States. Hungary and Slovakia have brought a legal action against the EU’s
emergency response mechanism before the Court of Justice of the EU thus
illustrating the political divide between Member States, particularly between
Eastern and Western European countries. [6]
The inability of national public
authorities and EU Institutions to manage effectively the unprecedented massive
influx of refugees to Europe are leading some to argue that what we are
witnessing here is not merely an identity crisis of the EU but rather an
existential one that is threatening the EU’s own raison d'être. [7]
From the persistent
securitization of measures focused on migration management and a politics of
numbers to the setting up of new border walls across Europe (with a concomitant
new border infrastructure that substantially expands enforcement, its
militarization and reliance on the use of detention), policies and measures on asylum
and migration have exposed the exclusionary logic at the heart of the Schengen
system. We are seeing an extension of extraterritorial exclusion, political
distancing, and arguably the deferral of moral responsibility with asylum-seekers
at the edges of the EU being funnelled to more dangerous and remote locations. [8]
This raises profound questions over the appropriateness, effectiveness and
desirability from a human rights perspective of these emergency responses. The
logic of emergency and pragmatism has encouraged reactionary measures that
focus on narrow geographies of immediate concern allowing for policies to trump
human rights. It has had pernicious consequences on displaced people’s human
rights not only by allowing the concurrence of refugee deterrence and inadequate
or poor reception conditions but also by justifying if not legitimizing what
Kalpouzos and Mann have forcefully defined as ‘banal crimes against humanity’. [9]
Indeed, denying people their human rights is challenging their very humanity
and it goes against the core of their human dignity, namely that every human possesses
an innate worth, just by being human which needs to be respected and protected.
Against this background,
the Commission has presented in the course of 2016 a package of reforms of the
Common European Asylum System (CEAS)[10]
to ensure a more efficient, fair and humane EU asylum policy, which is attempting
to go beyond an emergency driven mind-set. [11]
The reform envisages, among others: more harmonized rules on asylum procedures,
which should be simplified and shorter; greater convergence of recognition
rates; the use by the Member
States of standards and indicators on reception conditions developed by the European Asylum
Support Office (EASO); the drawing up of contingency plans by the Member States to ensure
reception capacity; common reinforced guarantees for asylum seekers with
special needs and the allocation of a guardian to unaccompanied minors. The
reform of the Dublin system is particularly important given its centrality in the
CEAS. It envisages
a corrective allocation mechanism to guarantee a better share of
responsibilities so that when an overwhelming number of asylum requests are
filed in just one Member State, the number of asylum seekers exceeding the
absorption capacity of that country will be distributed among all Member States
that are not confronted with excessive pressure. The ‘fairness mechanism’ based on
the solidarity principle will be triggered automatically where a Member State
has had a disproportionate number of asylum applications. To this end the EASO is to become a
fully-fledged EU agency for asylum to operate the reference key in order to
apply the fairness mechanism.[12] The proposed
reform has been subject to criticism [13]
insofar as it does not provide for a major change to what is clearly a fundamentally
flawed system for the allocation of responsibility of asylum applications
across the EU. With some exceptions such as the broader scope of the definition
of family members, asylum seekers would be exposed to stricter and unfair
rules. At the same time, the proposed regulation maintains if not worsens the
inequality in the distribution of responsibility between Member States: countries
of first entry would be required to conduct admissibility and merit-related assessments
before applying the new regulation. Moreover, the provisions concerning the end
of a Member State’s responsibility after a certain period of time has elapsed have
been removed under the proposed reform with again negative consequences for
countries of first entry and thus Southern-Mediterranean countries.
While the
Commission is attempting to strengthen the legal framework of the CEAS the
changes made do not seem to go far enough in safeguarding the fundamental
rights of international protection-seekers in times of crisis and emergency, as
the proposed reform does not constitute an overhaul of the current system in
place. The reality on the ground indicates that the sheer size of migratory
flows is such that the measures to be adopted to grapple with the complex and
constantly evolving situation of the current refugee crisis necessarily need to
include a combination of legal and policy tools and in this context of both conventional
and less orthodox instruments. This state of affairs confirms first of all that
a joint and collective effort is a
condition sine qua non at all levels of decision-making and implementation.
It also illustrates the fact that Member States retain a key role in the
implementation of asylum law and policy but still require the assistance of a
plurality of non-state actors. Hence, the purported failure of CEAS is not a
failure of the EU and its ideals alone but rather a failure of the Member
States and its people who are less and less incline to embrace solidarity
towards international protection seekers.
Dr Samantha Velluti, Reader in Law, University of Sussex
[1] By way of example, no
use has been made to date of the Temporary Protection Directive, see Council
Directive 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on
measures promoting a balance of efforts between Member States in receiving such
persons and bearing the consequences thereof, OJ 2001, L212/12. This Directive
was adopted precisely for establishing a legal framework for managing an
unexpected mass influx of individuals; for further discussion, see Advanced
Training Program on Humanitarian Action (ATHA), ‘Why is the Temporary
Protection Directive Missing from the European Refugee Crisis Debate?’, 7
October 2015, available at: <http://atha.se/blog/why-temporary-protection-directive-missing-european-refugee-crisis-debate>,
accessed on 20 October 2016.
[2] Michel
Herzfeld, ‘Welcome to Greece (but Not to Europe)’, available at:
<http://foreignpolicy.com/2016/02/25/welcome-to-greece-but-not-to-europe-schengen-racism/>,
accessed 19 October 2016.
[3] Ibid.
[4] This came
in addition to the Commission’s proposal to relocate 40,000 people in clear
need of international protection from Italy and Greece, thus bringing the total
number to be relocated to 160,000; see Council Decision (EU) 2015/1523 of 14
September 2015 establishing provisional measures in the area of international
protection for the benefit of Italy and Greece, OJ 2015, L239/146.
[5] European Commission, ‘Refugee Crisis: European
Commission takes decisive action - Questions and answers’, Press Release of 9
September 2015, available at: <http://europa.eu/rapid/press-release_MEMO-15-5597_en.htm>,
accessed 19 October 2016; this announcement was followed by the adoption by the
Council of Ministers of an EU Decision, see Council Decision (EU) 2015/1601 of
24 September 2015 establishing provisional measures in the
area of international protection for the benefit of Italy and Greece, OJ 2015,
L 248/80. Hungary decided not to be part of the mechanism. The EU
Decision was adopted within the Council with Qualified Majority Voting (QMV),
overruling Hungary, the Czech Republic, Slovakia and Romania, and with Finland
abstaining. On 2 October 2016 Hungary went on to hold a referendum on the EU
mandatory relocation scheme, which would have required Hungary to receive 1294
refugees. The Hungarian government was unable to reach the necessary quorum of
voters rendering the result null and void. Nevertheless, 98% of participants
sided with the Prime Minister Viktor Orbán to reject the admission of refugees
in Hungary.
[6] Case C-643/15, Slovak Republic v Council of the European
Union, of 2 December 2015, pending; Case C-647/15, Hungary v Council of the European Union, of 3 December 2015, pending.
[7] Alex
Barker, Andrew Byrne and Jeevan Vasagar, ‘EU refugee crisis: end of an ideal’, Financial Times, 4 September 2015.
[8] The EU-Turkey Joint Action Plan of 29 November
2015 (reinforced with the EU-Turkey Statement of 7 March 2016) is a case in
point. The Action Plan aims at: a) addressing the root causes leading to the
massive influx of Syrians, (b) supporting Syrians under temporary protection
and their host communities in Turkey (Part I) and (c) strengthening cooperation
to prevent irregular migration flows to the EU (Part II). The most salient
parts of the agreement are:
1) All new
irregular migrants crossing from Turkey to the Greek islands as of 20 March
2016 will be returned to Turkey;
2) For every
Syrian being returned to Turkey from the Greek islands, another Syrian will be
resettled to the EU;
3) Turkey
will take any necessary measures to prevent new sea or land routes for
irregular migration opening from Turkey to the EU;
4) Once
irregular crossings between Turkey and the EU are ending or have been
substantially reduced, a ‘Voluntary Humanitarian Admission Scheme’ will be
activated;
5) The EU
will, in close cooperation with Turkey, further speed up the disbursement of
the initially allocated €3 billion under the ‘Facility for Refugees in Turkey’.
Once these resources are about to be used in full, the EU will mobilise
additional funding for the Facility up to an additional €3 billion to the end
of 2018;
6) The EU
and Turkey will work to improve humanitarian conditions inside Syria.
The
agreement has been condemned, among others, by the United Nations Refugee
Agency (UNHCR), Human Rights Watch (HRW) and the European Council on Refugees
and Exiles (ECRE) for violating the 1951 Geneva Refugee Convention; for
academic commentary, see Henri Labayle and Philippe de Bruycker, ‘The EU-Turkey
Agreement on Migration and Asylum: False Pretences or a Fool’s Bargain?’, 1
April 2016, EU Immigration and Asylum Law and Policy, available at: <http://eumigrationlawblog.eu/the-eu-turkey-agreement-on-migration-and-asylum-false-pretences-or-a-fools-bargain/
>, accessed on 21 October 2016.
[9] Ioannis
Kalpouzos and Itamar Mann, ‘Banal Crimes against humanity: the case of asylum
seekers in Greece’ (2015) Melbourne
Journal of International Law 16(1): 1-28.
[10] European Commission, Communication from the
Commission to the European Parliament and the Council, Towards a reform of the Common European Asylum System and enhancing
legal avenues to Europe, COM(2016) 197 final.
[11] The package contains proposals for the ‘Dublin
IV Regulation’, see European Commission, Proposal for a Regulation of the
European Parliament and of the Council establishing the criteria and mechanisms
for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country
national or a stateless person (recast), COM(2016) 270 final; Proposal for a
Regulation of the European Parliament and of the Council on the establishment
of 'Eurodac' for the comparison of fingerprints for the effective application
of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for
determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country
national or a stateless person] , for identifying an illegally staying
third-country national or stateless person and on requests for the comparison
with Eurodac data by Member States' law enforcement authorities and Europol for
law enforcement purposes (recast), COM(2016) 272 final; Proposal for a
Directive of the European Parliament and of the Council laying down standards
for the reception of applicants for international protection (recast),
COM(2016) 465 final; Proposal for a Regulation of the European Parliament and
of the Council on on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection,
for a uniform status for refugees or for persons eligible for subsidiary
protection and for the content of the protection granted and amending Council
Directive 2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents, COM(2016) 466 final; Proposal for
a Regulation of the European Parliament and of the Council establishing a
common procedure for international protection in the Union and repealing
Directive 2013/32/EU, COM(2016) 467 final; Proposal for a
Regulation of the European Parliament and of the Council establishing
a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the
European Parliament and the Council, COM(2016) 468 final.
[12] The Agency will also be tasked with ensuring
greater convergence in the assessment of applications for international
protection across the Union, strengthening the practical cooperation and
information exchange between Member States and promoting Union law and
operational standards regarding asylum procedures, reception conditions and
protection needs; see European Commission Proposal for a Regulation of the
European Parliament and of the Council on the European Union Agency for Asylum
and repealing Regulation (EU) No 439/2010 COM(2016) 271 final.
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