People march through central London as part of a protest rally organised by Solidarity with Refugees in September 2016. Yui Mok/Press Association. All rights reserved.
Measures taken by the European Union as a response to the high numbers of refugee movements into Europe the past 16 months raise serious concerns as to the functions and implications of European solidarity both in terms of state obligations and refugee rights. To be sure, all EU member states are parties to the 1951 Refugee Convention and have accepted the same obligations towards individuals described and defined according to the same criteria. Additionally, measures enhancing asylum and refugee protection under the so-called Common European Asylum System (CEAS) are supposed to be based on solidarity between states. EU treaties and, in particular, Article 80 TFEU explicitly demand fair sharing of responsibilities, however they leave it to states to decide how to give effect to this principle.
In the following lines I will briefly go through two schemes that allocate asylum-related responsibilities between states: the Dublin mechanism within the EU and the EU-Turkey statement. I will explain how states’ asylum-related responsibilities suffer both legally and morally as a result of how these systems are operationalised. I suggest that both schemes use solidarity as a euphemism for avoiding or shifting responsibility and, ironically, for de-solidarising protection instead of signifying a humane policy. In that sense, and although solidarity has been invoked as a response to the so-called “refugee crisis”, the way it has been conceptualised makes it part of the problem.
Dublin and the exceptionality of solidarity between European states
The Dublin regulation, which determines the EU state responsible for examining an asylum application, together with the Schengen Code, which regulates border control, form the base of the common EU asylum and immigration policy. The general principle behind the Dublin mechanism is that the European country that played the most significant role in the applicant’s entry or residence in the EU is responsible for examining their application, even if it is lodged in another European country. This has proved to be problematic, mainly for two reasons:
The Dublin regulation’s great flaws have been exposed by the humanitarian crisis that has been unfolding in Europe since last year.
a) The Dublin system rests on the assumption that EU states have reasonably comparable systems of refugee status determination and protection. The system’s widely accepted dysfunction can be attributed precisely to this false assumption of safety and uniformity. The European Parliament has called for urgent reform of the system, noting that in the absence of “a genuine common European asylum system” the Dublin system “will continue to be unfair both to asylum seekers and Member States”.
b) The Dublin regulation creates a system where the responsibility for examining an asylum application is closely linked to border management. This thus places the lion’s share of the responsibility on those member states located at Europe’s external borders, which are the hardest to guard. Consequently, the allegation that these European states do not register new arrived asylum seekers or seek to drive them away through substandard reception conditions contrary to EU law should not come as a surprise. As Noll puts it, it is the law itself that creates an imbalance in the reception responsibility, which in turn leads to sidestepping of the law.
The obsession to maintain a robust Dublin system illustrates the circumstantial and measure-of-last-resort nature of solidarity between EU states.
The Dublin regulation’s great flaws have been exposed by the humanitarian crisis that has been unfolding in Europe since last year. The Council of the EU has adopted two relocation decisions, on 14 and 22 September 2015 respectively, as a result of these failings. Together, these provide for a temporary derogation from the Dublin rules and the exceptional relocation, over two years, from Italy and from Greece to other member states of 160,000 persons in clear need of protection, mainly from Syria, Iraq and Eritrea. The relocation system is based on a “hotspot approach”, which entails temporary intervention by four EU agencies – EASO, Frontex, Europol, and Eurojust – to assist national authorities in Italy and Greece with the identification, registration, and fingerprinting of incoming asylum seekers and refugees.
The obsession to maintain a robust Dublin system illustrates the circumstantial and measure-of-last-resort nature of solidarity between EU states, at the very least. The fact that relocation is institutionalised as an emergency solidarity mechanism is definitely a development directed towards fairer responsibility sharing. However, the failure to make relocation mandatory or to convert this emergency measure into a permanent solidarity mechanism should limit any expectations regarding the role ‘solidarity’ might play in any future reforms to the European asylum system.
The EU-Turkey deal and the proposed Dublin reform: a tried-and-tested recipe
In an effort to remedy the absence of intra-EU solidarity through relocation (as of July 2016 3056 people have been relocated), the EU adopted a more drastic policy; the allocation of responsibilities to states outside Europe, and more specifically Turkey, via the EU-Turkey statement. I won’t go into the statement’s details as it has already been extensively analysed in several fora. What is worth underlying though is the conceptual similarities present in both Dublin and the EU-Turkey statement, namely the promotion of the ‘protection elsewhere’ rationale, the perception of refugees as passive objects, and the use of coercion.
Mechanisms based on the ‘safe third country rationale’ provide a wide margin of discretion for states to transfer responsibility amongst themselves.
Both mechanisms are heavily based on the ‘safe third country rationale’ providing a wide margin of discretion to EU states to transfer responsibility for refugees between themselves and with third countries. This is highly questionable for at least two reasons. First, it becomes hard to apportion responsibilities, to identify those to whom assistance is owed, and to identify those who should be held accountable when assistance is not provided. The other reason goes a bit deeper: the objective pursued through these arrangements is not protection but rather the restriction of secondary movements and the prevention of irregular migration.
To facilitate the objectives behind the EU–Turkey statement, the European Commission recently proposed a set of reforms to the Dublin III Regulation. This has yet to be approved by the European Parliament and the Council. The suggested amendments include an obligation for states to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before the determination of responsibility according to Dublin criteria is activated. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Turkey.
Additionally, the suggested reforms complement the already existing rules with a “corrective fairness mechanism” that aims to address the issue of the uneven distribution of asylum applications amongst EU states. Within this mechanism, rules of relocation will be triggered once a country is found, by reference to its population and income, to be handling a disproportionate number of asylum applications. When that happens, all further new applicants in that country will be relocated across the EU until the number of applications is back below the income- and population-determined threshold. The possibility of financial contributions in place of accepting individuals is also suggested, primarily as a ‘fine’ for non-solidaric states, while at the same time penalties are to be imposed on asylum seekers who do not obey the rules of the system.
A system in need of true reform
What do the above leave us with? The emphasis in the European asylum policies is placed on the distribution of territorial responsibilities for the processing of applications as a duty owed by states to each other. The focus on the first-country rule rather than, for example, on an asylum seeker’s preferences and ethno-cultural background, reflects a mere, rather technocratic burden-sharing logic. Asylum becomes bureaucracy since the focus is on the process, instead of on the refugee herself as a bearer of rights.
The denial of core rights, such as material reception, conditions is being suggested as a way to prevent secondary movements, and thereby ensuring a well-functioning and managed mobility regime within the EU. Although some room for solidarity towards refugees is made within the EU-Turkey deal, namely by providing for the possibility of Syrians in Turkey to be resettled to EU member states, this arguably interferes with one’s right to seek asylum beyond state-initiated practices. In other words, resettlement should not substitute the provision of asylum, as in the case at hand, but rather supplement it.
Taking all the above into consideration, it’s clear that solidarity in EU asylum policies has become a euphemism for bargaining responsibility, for maintaining the ‘burden’ discourse, and for furthering exclusion. Cooperation with third countries is promoted as a response to the ‘crisis’, one which fills the gap left open by the almost non-existence of intra-EU solidarity, however it is essentially is a disguise for securitisation: “let’s cooperate to deter”.
It’s clear that solidarity in EU asylum policies has become a euphemism for bargaining responsibility, for maintaining the ‘burden’ discourse, and for furthering exclusion.
The Dublin regulation, the relocation schemes, the hotspots, the EU cooperation with third countries, as well as the intensification of interception blur the distinction between protection and security responsibilities, indicating of a certain trend: the de-solidarisation of asylum by reducing an asylum seeker into an application to be dealt with, rather than a person in need of protection, on the one hand and asylum’s transformation to a “protection by proxy” construction contrary to international and European law and principles, on the other.
What future for asylum in Europe?
European reality has proved to be symptomatic of the “near-obsession” of western states with migration control and sealed borders, rendering asylum policies and thus solidarity a primarily exclusionary concept.
The current situation on Europe’s outer borders and within its territory reveals violations of the principle of non-refoulement, not to mention fundamental human rights such as the right to life. It also exposes the “myth” of solidarity in EU asylum policies, which is being extensively used to ensure that responsibility is placed precisely on frontline countries, to manage movements into and within the EU, as well as to justify the denial of granting protection.
Let’s for a moment project the future of refugee protection if Europe’s current response was allowed to become a precedent. Asylum would transform into a bilateral or multilateral framework of arrangements, within which state-partnerships would ensure that responsibilities are gradually shifted to countries bordering the region in distress. States may also find ways to ‘incentivise’ protection seekers to remain or return to their country or origin, and there would be a price tag given to anybody who does manage to access the European asylum system-cum-‘asylum market’. Indeed, the Commission has proposed that member states refusing, temporarily, to participate in a corrective mechanism through relocation would pay €250,000 per asylum seeker to the state that does end up processing the application. In this ‘asylum market’ responsibility would be traded between states and fairness would be primarily subject to the demands of the wealthier.
Our times are marked by a euphemistic conceptualisation of asylum solidarity. Are we really content with our current course, which will only end with the commodification of refugees, the debasement of the right to asylum, and the narrowed applicability of refugee law to only a minority of states?