Can Europe Make It?

Refugees and realistic European options

The EU Commission needs to satisfy both a majority in the European Parliament and a qualified majority in the Council of Ministers.

Marley Morris
14 April 2016
Protest poster at PEGIA demonstration( Patriotic Euopeans againt Islamisization of the West).

Protest poster at PEGIA demonstration( Patriotic Euopeans againt Islamisization of the West). Jens Meyer /Press Association. All rights reserved.Like the Eurozone crisis before it, Europe’s refugee crisis has forced the EU into a state of permanent emergency. Refugee flows into Europe continue to dominate the headlines, punctuated by regular emergency summits and hastily scrambled together dossiers. As with the Euro, the crisis is proving fiendishly difficult to resolve – every policy option has the potential to lead to political ruin. Last week the European Commission took another stab at resolving one aspect of the problem: the EU’s so-called ‘Dublin’ asylum system.

The Dublin system for managing asylum was originally introduced in the 1990s to ensure clarity over which member state was responsible for each asylum seeker that entered the EU. The need for clear rules became apparent with the introduction of the Schengen agreement that brought down border controls between most Western European countries. One core aspect of Dublin is that in general, other than in particular cases such as when an asylum seeker has a close family member in a member state, the first member state that an asylum seeker enters is responsible for their asylum application.

Over the years Dublin has worked relatively well for top destination countries of asylum seekers in northern Europe, which have had recourse to return some of their asylum seekers to the first EU member state they passed through. But – particularly in recent years as the refugee crisis has grown – countries on the southern periphery of the EU have borne the brunt of asylum applications. This is far removed from the professed principles of transnational solidarity and cooperation at the foundation of the EU project.

Moreover, the rules have now become dysfunctional. Many returns do not take place: in 2014 the UK only carried out 252 transfers through Dublin, despite making 1831 requests. The European Court of Justice and the European Court of Human Rights have ruled that asylum seekers cannot be returned to Greece through the Dublin rules due to its poor conditions and deficiencies in its asylum procedures. And last year, faced with vast numbers of asylum seekers making their way through Europe, Germany took the decision to temporarily stop returning Syrian asylum seekers to the first EU member state they entered.

Two options

So what are the alternatives to the current system? Last week the European Commission set out two immediate options for reform. On the one hand, the paper offers a more radical, centralising system for managing asylum applications. Under this plan, Dublin would be replaced entirely by a system that continuously relocates asylum seekers across the EU according to a ‘distribution key’.

This distribution key would distribute asylum seekers based on factors such as population size, wealth, and the member state’s capacity to absorb refugees. The relevant member state would then assess the asylum seeker’s application. (In the long-term, the paper also hints at the possibility of a centralised asylum system, with EU bodies appointed for assessing asylum applications and appeals and directing asylum seekers to a designated member state, but recognises this is not feasible in the short to medium term.)

But the politics suggest that a radical overhaul of the Dublin system is simply far-fetched. With populist parties riding high and public opinion sceptical in a number of member states – not least in all-important Germany – and with an in-out EU referendum in the UK looming, there is little will or desire to let the EU take further control over each EU member state’s asylum process or to make any dramatic changes to the current system.

The second option put forward by the Commission (known as ‘Dublin Plus’) is to leave the basic Dublin rules intact and to instead put in place provisions for extreme scenarios like the one the EU currently faces. This reform would supplement the Dublin rules with an additional emergency ‘fairness mechanism’ that reallocates asylum applications fairly according to a distribution key when asylum flows are very high.

This reform too faces difficulties. The EU is currently operating a similar emergency relocation scheme for Syrian refugees from Greece and Italy as a consequence of the current crisis. But it isn’t working – in March, only 937 of 160,000 promised relocations were carried out. A new report out this month from the Commission again found progress was unsatisfactory. Despite the EU Justice and Home Affairs Council agreeing to the relocation plans (albeit amid opposition from some central and eastern European countries), many member states now seem to be dragging their heels. Some critics argue that, if EU countries can’t make relocation work now on a temporary basis, it seems pointless to embed the idea as a permanent feature of EU policy.

Secondary flows

Moreover, others have argued that the relocation scheme suffers from a fundamental flaw – it is incompatible with the Schengen agreement, which allows asylum seekers and refugees to travel across many EU member states. So even if the relocations can be carried out, individuals can move again in what the EU calls ‘secondary flows’.

In its proposal this week, the Commission sets out a number of ideas trying to address this particular issue. In an ironic turn of affairs, given the recent UK-EU renegotiation aimed at reducing the ‘pull factors’ driving EU migration to the UK, the EU now wants to limit flows across the EU by deterring asylum seekers and refugees from moving, such as by preventing access to benefits. But it is still very unclear whether these measures can really control secondary movements, just as it is unclear whether Cameron’s ‘emergency brake’ will reduce EU migration to the UK.

Going nowhere fast

So both proposals have their flaws. But that’s not to say they are the wrong thing to do. Critics of this new paper – of which there are many – seem to underestimate the impossible situation in which the Commission finds itself. In order to pass any legislation, it needs to satisfy both a majority in the European Parliament and a qualified majority in the Council of Ministers. That is, in order to become law the proposal needs sufficient support from the governments of the EU’s member states, including a wary Germany, struggling to manage the refugee crisis in its own country; a beleaguered Greece, nervous of any attempts by the EU to expel it from Schengen; and a combative Hungary, stridently against taking in refugees and preparing a referendum on asylum quotas.

It therefore seems clear that if the Commission proposed anything that appeared too radical or federalist – such as an immediate centralisation of the asylum decision making process – it would go nowhere fast. And, conversely, any proposal that charged in a different direction – by for instance proposing restrictions on Schengen movements – would be met with short shrift by those member states that see Schengen as untouchable.

In this context, the Commission’s proposals – which tread a careful line between these two extremes – seem like the only realistic options. Yes, they are far from perfect – they do little, for instance, to take into account the preferences of asylum seekers in the relocation process, thereby increasing the risk of asylum seekers moving to their preferred destination after being relocated. But they perhaps represent the limit of what is politically possible, given the current priorities of the member states. Indeed, it seems inevitable that the more radical option proposed by the Commission will fall by the wayside, and that the final proposal will look more like Dublin Plus.

Beggar my neighbour and moral failure

The challenge will now be whether an agreement can be found in the Council and the Parliament, and, whether, provided agreement is found, any such relocation policy will actually take place on the ground. That is primarily a question of political willpower (as well as of administrative competence). The natural temptation will be to continue the ‘beggar my neighbour’ policies that have characterised the crisis so far, but as the chaos continues the scope for change should increase.

So yes: the Commission’s proposals inevitably mean further muddle and confusion for now, and they may well face major challenges with implementation. They may prioritise the wrong issues and lack the right ambition. But they are a step in the right direction, when the alternative is complete paralysis – and with the refugee crisis exposing the deep flaws in the current system, this would be a moral failure.

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