15 luglio 2019

Rethinking Solidarity in EU Migration Policy

di Henriët Baas

● Scenari internazionali


Even though present numbers of asylum applications lodged in the European Union are far below the peak levels of 2015, migration is a topic that still divides EU countries. The odyssey of the Sea-Watch 3, an NGO rescue boat stranded in the Mediterranean for 17 days before the vessel’s captain forced its way into the Italian port of Lampedusa, is the most recent example. The incapacity of designating a safe European port to disembark the rescued migrants on board and the inability to reach a common European agreement on their relocation demonstrate once more that the EU’s current migration approach is defective. Against this backdrop, it would be more than justified to ask ourselves if anything fundamental has changed since the alleged “refugee crisis” of four years ago.


According to the European Commission a 90% drop in the number of arrivals compared to 2015 indicates that some progress in tackling common migration issues has been made[1]. Yet this numerical fact, apart from resulting from somewhat dubious agreements with third states[2], is rather deceptive. Mainly since the Commission and EU Member States keep ignoring the elephant in the room: an indispensable overhaul of the Dublin system[3]. After various reform attempts being repeatedly blocked in the Council, the Juncker Commission officially threw in the towel last December. The 2019-2024 Strategic Agenda European leaders agreed on during last month’s European Council brings us back to square one as well by echoing the course of action the Commission and Member States have rather unsuccessfully committed to since the direct aftermath of the migratory crisis: the full control of external EU borders, an effective asylum policy and the proper functioning of Schengen[4]. By contrast, considering its significant functional flaws and problematic concept of solidarity for both Member States and asylum-seekers, a reform of the Dublin system should be among the priorities on the incoming Commission’s agenda.


Whats the matter with Dublin?


With a Common European Asylum System (CEAS) the EU may pride itself on a unique project of supranational cooperation in the highly sensitive area of migration. Since its establishment in the late 1990s the CEAS has advanced legislation on the recognition procedure of refugees as well as standards on their status and reception. As a result of the high degree of discretion that was left to Member States regarding the implementing of these standards, no real harmonisation has been achieved. Recognition rates for asylum-seekers with the same nationality still show significant variations across the EU[5]. This becomes particularly problematic in view of the cornerstone of the CEAS, the Dublin system. Over the past 20 years, Dublin - currently arrived at its third edition - has determined the responsibility for examining asylum claims of persons that set foot in Europe. In the vast majority of cases the scheme assigns this task to the first European country an asylum-seeker arrives in, and to which they should be returned if they move to another Member State. The “first country of entry rule” premises on the assumption that as a result of the harmonisation of procedural, status and reception conditions across the EU, asylum-seekers would lack incentives to move to another Member State. By curtailing asylum-seekers’ “shopping” in Europe, i.e. filing an application in more than one Member State, Dublin seeks to enhance the overall speed and effectiveness of dealing with asylum claims. However, besides full equal standards being far from attained, Dublin fully disregards other elements that force asylum-seekers to nevertheless move to another EU country. Poor economic perspectives in certain Member States and personal preferences based on language skills and social ties may account for so-called “secondary movements”. As roughly one third of asylum-seekers files a second claim in another Member State and only around 20% of transfer applications is actually implemented, Dublin results to be unsuccessful in reducing secondary movements[6].


Absence of solidarity


In a wider context, Dublin’s systematic shortcomings result in a problematic relationship with the concept of solidarity and responsibility-sharing to which the CEAS is constitutionally bound since the Treaty of Lisbon[7]. On the side of asylum-seekers, the recent trend of EU countries reinforcing border controls to block migration flows has degenerated their humanitarian situation. By making countries responsible for migrants crossing their own national borders, Dublin penalizes Member States at the external EU borders. This incited southern European countries to introduce severe policies that have rendered crossing the Mediterranean deadlier than ever[8]. Additionally, the persistence of secondary movements has pressed Member States like France, Austria and Hungary to reintroduce border controls. This jeopardizes the underlying aim of Dublin’s inception, namely safeguarding free movement within the Schengen area. As a consequence, in the past two years at least 30 migrants froze to death seeking to cross the Alps between Italy and France undetected[9].


Critical situations at the external and internal borders of Europe are not only detrimental from a human rights point of view. They also lie at the heart of current tensions and mistrust between EU countries. The unprecedented levels of arrivals in 2015 and the ensuing incapacity of Member States at the external borders of the EU to efficiently register and provide reception to all applicants revealed the disproportionate burden that Dublin places on first countries of entry in southern Europe. While in the 1990s Dublin was designed to generate a more equal distribution of the large amount of asylum applications by which north-western European countries were affected, present-day numbers indicate that the first country of entry principle is an anachronism which has turned out to be counterproductive to its own distributive objective. German Chancellor Angela Merkel’s decision to suspend Dublin transfers of Syrian asylum-seekers and hence taking Dublin out of play in order to release pressure from EU border states in 2015 only confirms this.


On the one hand, core states, the receivers of secondary movements, increasingly advocate a correct application of the first country of entry rule. Cases of poor humanitarian conditions in the overburdened countries at the European external borders have been declared a possible ground to suspend Dublin transfers back to these countries of first entry[10]. This has significantly harmed mutual trust between Member States. Accuses against Italy and Greece of deliberately not registering asylum-seekers and providing poor reception conditions are at the order of the day.


Periphery states, on the other hand, insist on observing the principles of solidarity and responsibility-sharing among EU Member States. To date, responsibility-sharing in the case of asylum has prevalently comprised financial support for border Member States. An experimental voluntary emergency scheme agreed upon in 2015 was supposed to relocate 160.000 asylum-seekers from Italy and Greece to other Member States. Yet three years later a mere 22% of the originally envisaged number has been reached[11]. These numbers become even more ambiguous in light of the simultaneous existence of Dublin. In spite of the 2015 emergency scheme Italy remained a net recipient of asylum-seekers as it continued to receive Dublin transfers. Equally, in 2018 and 2019 Italy received more Dublin transfers than actual arrivals via sea[12]. The following perceived lack of a “fair” asylum system fuelled the frustration of Interior Minister Salvini, which added gas to the fire of some fraught bilateral relationships with France (that even recalled its Italian ambassador) and Germany. Hence, responsibility-sharing between EU Member States has been reduced to a numbers game and completely misses the point of solidarity beyond financial support. The continuing difficulties to create an automatic EU relocation scheme for migrants rescued at sea and the voluntary ad-hoc nature of current distribution initiatives only underline the flawed interpretation of EU solidarity.


Fairer allocation is possible


Reform proposals of the European Commission to enhance solidarity and responsibility-sharing in the distribution of asylum claims have been repeatedly rejected by countries of the Visegrad group. The most recent Commission proposal for an overhaul of Dublin, a voluntary quota scheme proposed at the European Council of June 2018, was even turned down by Italy, as the country exclusively wanted to give its blessing to more far-reaching responsibility-sharing. Nonetheless, this intergovernmental impasse does not restrain from envisaging fairer mechanisms to allocate asylum claims. A European version of a relocation system could take inspiration from the distribution key in operation in Germany. This mandatory quota system assigns asylum-seekers to different Länder according to the “Königsteiner Schlüssel”. A European version could employ a similar key reflecting population size, GDP, unemployment rate and current number of hosted asylum-seekers and refugees. Yet, unlike the Commission’s proposal, in order to guarantee real transparent responsibility-sharing such a scheme should not function on a voluntary basis or enable unwilling Member States to financially buy their way out of protection responsibilities. Going even one step further and surpassing current constitutional limits, the establishment of a single European Asylum Agency[13] judging asylum claims and implementing relocation would decouple disembarkation at sea and dismantle lethal migration routes. Based on a single European refugee status, recognised refugees could subsequently be allocated in a fair way in order to relieve pressure from overburdened periphery states and ease tensions between Member States. Leaving unanswered the question about which alternative to take, it is nevertheless beyond question that the EU cannot wait another 4 years or for another “refugee crisis” to create a real meaning to the term solidarity.


Image: 'Syrian and Iraqi refugees arrive from Turkey to Skala Sykamias (Lesbos Island, Greece)', 30 October 2015. By Ggia, Wikimedia Commons.



[1] European Commission (2019), European Agenda on Migration: EU Needs to Sustain Progress Made Over the Past 4 Years, Press release 06.03.2019: http://europa.eu/rapid/press-release_IP-19-1496_en.htm

[2] The externalisation of EU borders, particularly the 2016 EU-Turkey deal and the cooperation with African countries along migration routes, has received some fierce critique from an ethic and legal point of view. See for example Moreno-Lax V. & Lemberg-Pedersen M. (2019), ’Border-Induced Displacement’, Questions of International Law: http://www.qil-qdi.org/border-induced-displacement-the-ethical-and-legal-implications-of-distance-creation-through-externalization/

[3] The Dublin Convention (1990) determined the EU Member State responsible for examining an application for asylum lodged in one of the EU Member; it was replaced by Council Regulation No 343/2003 (Dublin II regulation) and Regulation of the European Parliament and of the Council No 604/2013 (Dublin III regulation)

[4] European Council (2019), A New Strategic Agenda 2019-2024: https://www.consilium.europa.eu/media/39914/a-new-strategic-agenda-2019-2024.pdf

[5] E.g. in 2016 recognition rates for international protection of Iraqi applicants varied between 13% (Hungary) and 100% (Spain). See AIDA (2017), Refugee Rights Subsiding? Europe’s Two-Tier Protection Regime and Its Effect on the Rights of Beneficiaries: http://www.asylumineurope.org/sites/default/files/shadow-reports/aida_refugee_rights_subsiding.pdf.

[6] Eurostat (2018), Dublin Statistics on Countries Responsible for Asylum Application: https://ec.europa.eu/eurostat/statistics-explained/index.php/Dublin_statistics_on_countries_responsible_for_asylum_application#Implemented_transfers_within_the_Dublin_procedure

[7] Art. 80, Treaty on the Functioning of the European Union (TFEU): “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”

[8] IOM (2019), Fatal Journey, Vol. IV: https://publications.iom.int/system/files/pdf/fatal_journeys_4.pdf

[9] Anafé (2019), Persona non grata. Conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne: www.anafe.org/IMG/pdf/anafe_-_resume_-_persona_non_grata.pdf

[10] Precedents established by the judgements of the European Court of Human Rights (ECtHR) in M.S.S. v Belgium (2011) and the European Court of Justice (CJEU) in the joined cases of N.S. v UK and M.E. v Ireland (2011)

[11] European Commission (2018), Progress Report on the Implementation of the European Agenda on Migration: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/com_2018_250_f1_communication_from_commission_to_inst_en_v10_p1_969116.pdf

[12] Zinti A. (2019), 'Migranti, il sorpasso: ne arrivano più dall’UE che via mare dall’Africa', La Repubblica 17.06.2019: https://rep.repubblica.it/pwa/generale/2019/06/17/news/dublinanti-229028192/

[13] As for example proposed by Carrera S., Gros D. & Guild E. (2015), 'What Priorities for the New European Agenda on Migration', Centre for European Policy Studies (CEPS): https://www.ceps.eu/wp-content/uploads/2015/04/MigrationPriorities.pdf

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