The Orbanisation of EU asylum law: the latest EU asylum proposals

Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system. 

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn. 

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports. 

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways. First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’. Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months. Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey. Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010. Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal). 

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration. 

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission's asylum proposals - to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, the current law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. 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 Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can't relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany. 

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:7

Photo credit: JapanTimes.co.jp

‘Wisdom and goodness to the vile seem vile’: Towards a third phase of the Common European Asylum System?

Steve Peers*

How to fix the EU’s troubled Common European Asylum Policy? The Commission has given its views today in the form of a discussion paper, with plans for further legislation. Will this fix the problems?

The first phase of the EU’s Common European Asylum Policy was set in place in the form of legislation adopted over 2003-05. The second phase is based on legislation adopted between 2011-13. (For more details, see volume 3 of the Commentary on EU Immigration and Asylum Law, which I co-authored). Today’s communication effectively outlines the plans for a third phase – without actually using that phrase. It examines many facets of EU asylum policy, and also mentions immigration policy. I’ll look at the announced plans in turn.

It’s worth making two general points at the outset. First, the UK is bound by the first-phase asylum laws, but not by the second-phase laws, other than the Dublin rules, Eurodac, and the law setting up the European Asylum Support Agency. It can opt out of any of the third-phase laws, but if it opts out of new laws amending those laws which it’s already bound by, the EU Council could decide to end the UK’s participation in those laws, on condition that operating a different system for the UK is effectively impossible. (Ireland is in broadly the same position).

While it’s sometimes asserted that ‘the EU court controls UK asylum laws’, the UK chose to opt into those first-phase laws, and used its veto to ensure that they were consistent with existing UK law. The only British cases on asylum which have ever reached the EU court have been about the Dublin system. And eventual access to citizenship of a Member State by asylum-seekers is far harder to obtain than some imagine it to be.

Secondly, any proposals the Commission makes will have to be approved by a qualified majority of participating Member States (in the EU Council) and by the European Parliament. Obviously there’s no guarantee of obtaining either in this controversial area.

The Dublin system

The discussion paper devotes the most space to the plans to reform the EU’s Dublin system, currently set out in the Dublin III Regulation. The principal problem with this Regulation is its allocation of responsibility in most cases to the first EU state which the asylum-seeker entered. With its declining economy and a sharp increase in the number of asylum-seekers, Greece cannot handle this burden. Although the EU has already tried to address this problem, in the form of two Decisions relocating some asylum-seekers away from Italy and Greece (discussed here), this has not worked well in the absence of Member State willingness to apply the system: barely 1,000 of the promised 160,000 have been relocated. In addition, the second Decision has been challenged by two cases in the EU Court (see discussion here of one of these cases).

How to address this? The Commission suggests two options: a sort of compensation system that would kick in once a Member State had particular burdens, or a quota system reallocating all asylum-seekers across the EU. The former option is based on the current relocation decisions; it should be noted that the Commission already proposed amendments to the Dublin rules along these lines last September, but there seems to be little interest in this proposal. There could be adjustments to the current Dublin rules (so that responsibility would no longer cease due to lapse of time), and the relocation rules (so that more categories of asylum-seekers were covered, not just those with a 75%+ acceptance rate).

The second option would allocate all asylum-seekers in principle between Member States based on standard rules, with exceptions where there are family links for instance. Where the EU has designated a ‘safe’ country, though, the first Member State of entry would remain responsible, for the sake of efficiency. Obviously the intention here is to keep in place the new rules which aim to return people from Greece to Turkey quickly.

Either way, the Commission suggests possibly repealing the EU’s temporary protection Directive, a law designed to deal with mass influxes that has never actually been invoked to deal with any of them. (On its possible use to deal with the current crisis, see discussion here).

Eurodac

The Commission plans changes to the Eurodac Regulation, which currently requires taking and storing fingerprints of all asylum-seekers and irregular border crossers, mainly for the purpose of checking at a later stage if they have already applied for asylum or where they originally entered (for the purpose of applying the Dublin rules). Currently the database allows police access as well as checking of irregular migrants (separately from the asylum procedure). The Commission plans to make proposals for changes to match the changes to the Dublin rules as well as to make much more use of the system for migration control. This will parallel the smart borders proposals for an entry-exit system (also made today).

Procedures Directive

The intention is to replace the current Directive with a Regulation, setting out ‘comprehensive harmonisation’ and a genuinely ‘common procedure’, which would ‘reduce incentives to move to and within the EU’. There would be new rules on ‘key aspects of the asylum procedure’ which are currently optional, as regards admissibility (ie whether the asylum-seeker had, or should have sought, protection in a non-EU country), ‘the use of border and accelerated procedures’, the treatment of repeat applications, ‘and the right to remain in the territory’ during applications and appeals. This would harmonise the length of the initial application process and the appeals (the second-phase Directive already has common rules on the former issue, although not for the fast-track version of it).

On this point the Commission is particularly keen to harmonise ‘safe country’ rules, both as regards ‘safe country of origin’ (ie is the asylum-seeker safe in her own country?) and ‘safe third country’ rules (should he have applied for asylum elsewhere?). On the first aspect, the Commission wants the EP and Council to agree the proposal it made back in September 2015 for a partly common list (designating the Western Balkans and Turkey as ‘safe’: discussed here). But neither institution has rushed to adopt the Commission proposal. The intention is for more harmonisation relating to countries where many applicants come from. But as I pointed out in my previous analysis this proposal wrongly includes Turkey – despite its dubious human rights record – for cynical political reasons, and does not provide enough safeguards for those who claim may be genuine.

The Commission also wants to harmonise the use of the ‘safe third’ country concept, and set up a process of defining a common list in future. This would avoid awkward problems where differences between Member States divert flows of asylum-seekers or cause a ‘protection lottery’ with divergent decisions for similar cases. But it remains to be seen how these standards are applied. Given that (as discussed here) the Commission and Member States support the absurd designation of  Turkey as a ‘safe third country’ – despite its non-application of the Geneva Convention to most asylum-seekers and evidence of refoulement, unsafe treatment, and low standards – the prospect of further moves in this direction are unappealing.

Qualification Directive

The Commission has been carrying out an evaluation of the qualification Directive (which defines the concept of ‘refugee’ and ‘subsidiary protection’ status, and the rights which each group receive, but there is no mention of that here. The main concerns of the paper are twofold: further harmonisation of the rights received, including ‘differentiation’ of the two types of status, as subsidiary protection is ‘inherently more temporary’. This contradicts the second-phase Directive, which accepted that subsidiary protection was often not temporary and harmonised the two forms of status in most respects: see discussion of the first EU court judgment here. Secondly, protection will be granted ‘only for so long as they need it’.

This means that the Directive will be replaced by a Regulation, and the intention seems to be harmonisation downwards: ‘to reduce both undue pull factors and secondary movements’. There will be a ‘regular check’ to see if protection can justifiably be taken away, although this is consistent with the Geneva Convention, which refers to ‘cessation’ of refugee status when circumstances change in the country of origin. There will be standard rules on identity documents (although note that the Geneva Convention has already provided for a standard travel document for refugees). In the long term, there could be mutual recognition of decisions and a transfer of protection (on the latter issue, see my earlier paper). This reflects the Treaty obligation to create a status ‘valid through the Union’ – although the Commission cannot bring itself to refer to this concept.

Reception conditions

The Commission plans ‘targeted’ amendments to the reception conditions Directive, which governs the day-to-day life of asylum-seekers outside the procedural aspects of their asylum claim.  There’s no detail of these plans but the intention is to ‘reduce incentives to move to Europe’ and within the EU, while still ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

As evident already, a main purpose of the paper is to stop asylum-seekers moving within the EU – a reversal of the usual logic of EU legislation. The paper elaborates further on this, referring to ‘proportionate sanctions’ for those who leave the responsible Member State. This will entail an obligation to send back the asylum-seeker to the responsible State (does that mean the options to consider the application in the Dublin Reg will be dropped?), a fast-track examination procedure without an automatic right to remain during the appeal, detention or restriction of movement, removal of benefits (overturning the judgment in CIMADE and GISTI on this point), and reduced credibility of the claim, on the basis of ‘existing provisions in the acquis’ dealing with last-minute applications. There will also be punishments for those who move without authorisation after obtaining refugee or subsidiary protection status, including a ‘status review’, and the five-year waiting period to obtain long-term residence status will be restarted every time they do so. There will be a common document issued to asylum-seekers, making clear that they cannot leave the responsible Member State except for ‘serious humanitarian reasons’.

The European Asylum Support Office

Currently this EU agency has a modest role supporting national asylum decision-makers. The Commission wants to enlarge its role, allowing it to evaluate Member States’ compliance with asylum standards, and suggesting changes they should make in national practice. If there were no compliance, the Agency could provide ‘enhanced support’, and there would be ‘measures’ to prevent ‘any incentive for Member States or asylum seekers not to respect the rules’. In particular, the Commission would have the power to decide on ‘operational measures’ to be taken by a Member State where the Agency found a breach of asylum standards, as regards case-handling and reception support, linked to the parallel actions by the EU Border Guard. (Obviously the drafters of the paper are thinking of Greece here).

The Agency would also have the power to offer detailed guidance (as it does occasionally already) on the substance of asylum law, with a reporting mechanism and case-auditing. The Agency would also have a key role assessing whether third countries are ‘safe’, giving its opinions to the Commission on this point.  It will also operate the revised Dublin system, on the basis of criteria not leaving it any discretion (it’s not possible to give EU agencies discretionary policy-making powers, according to the EU court).

Finally, the agency would have a reserve of national experts it could call on, and extra financial resources, linked to the new money for humanitarian assistance within the EU. In the longer term, the Agency could be given the role of making first-instance decisions in place of national authorities, although the Commission realistically acknowledges that this prospect is on the far horizon. Indeed, that horizon is darkened by flocks of low-flying pigs.

Safe routes for entry

While much of the paper is focussed on getting the Dublin system to work, this is balanced somewhat by discussion of safe routes for entry. First of all, this refers to existing ‘soft law’: a general recommendation on resettlement (which means the movement of people from non-EU countries to the EU), and the controversial 1:1 deal between Turkey and the EU, in effect ‘trading’ resettlement places for readmission of non-Turkish refugees from the EU (discussed here).

The Commission will build on this to propose (as promised before) EU legislation on resettlement, which will set out a ‘common approach to safe and legal arrival in the EU’ for people who need protection. There will be general rules, addressing admission and distribution, the status of resettled persons, financial support, and punishment for secondary movements between Member States.  These general rules will then be applied in individual cases as regards specific countries or groups of people. For specific countries, resettlement might only be offered on a quid pro quo basis, related to readmission: this echoes the controversial 1:1 deal with Turkey. It should be noted that readmission treaty negotiations are about to start between the EU and Jordan, which is another major host country for Syrian refugees.

The paper also talks about other safe legal routes for entry. Existing laws on admission of workers, students and researchers should be made accessible to refugees, although the Commission makes no commitment as regards EU legislation dealing with that issue. Private sponsorship should be encouraged by developing EU ‘best practice’. The Commission also promises to look at the issue of humanitarian permits. The most obvious way to do this in the near future is by including provisions in the EU visa code, which is currently being amended – as I have previously advocated and as supported by the European Parliament.

Legal migration

The Commission argues in general that the EU needs more legal migration for economic and demographic reasons. It suggests several means to this end. First of all, it plans to amend the EU’s Blue Card Directive on highly skilled workers, to encourage admission and make this law (which has had limited success) more attractive. (On the Directive in practice, and possible reforms, see my discussion here).

Secondly, the Commission might make a proposal for an EU law on admission of entrepreneurs. Next, it will consider a proposal on admission of service providers from non-EU countries. It will also review the effectiveness of other existing EU legislation on labour migration, in particular in order to prevent exploitation of workers. Finally, the paper includes some general words about cooperation with third countries.

Comments

Today’s paper seems entirely focussed on the feasibility of the Dublin system, with all other aspects of asylum law subsumed to supporting that objective. Never in the course of human history has such a small tail wagged such a big dog. The implication (only hinted at once) is that Dublin must be saved so that Schengen can be saved. At no point does the Commission ask itself whether Dublin can be saved – or whether Schengen should be.

The problem is that it is hard to see how Dublin could be made to work, especially now that large increases in migration flows have made its malfunctioning a huge political issue. Allowing asylum-seekers to leave Greece and Italy in large numbers for other Member States is politically unacceptable for those other Member States, and has led to internal border checks being reimposed and the construction of new walls across the continent. Insisting that Greece – its economy impoverished by a combination of poor domestic and Eurozone governance – should bear the burden alone is untenable, and both the EU court and European Human Rights court ruled that Greek asylum standards were insufficient even before the twin economic and migration crises took full effect. The reasonable attempt to reduce the Greek burden a little by means of the relocation Decisions has been ineffective.

It’s hard to see how a slightly different version of the relocation system can be made to work either. And why would the Member States collaborate in a fully-fledged quota system, which they are likely to find even less attractive than the relocation rules?

All this explains the recent EU turn towards a ‘Plan B’: simply returning most or all those who reach Greece straight back to Turkey. Time will tell soon enough how workable this alternative is: it may also prove unfeasible if people switch to different routes, are not deterred from arriving, or successfully challenge the legality of the deal. Certainly, the Commission’s assumption is that enough people will still arrive to cause a political problem. So the most important elements of today’s paper are the twofold intention to punish secondary movements and to deter people from coming at all. (I won’t comment on the legal migration part, which simply reiterates existing plans).

It’s clearer how the Commission would like to punish secondary movements. The plans here resemble nothing more closely than a liberal parent who has finally lost his patience with his misbehaving children, resulting in a disproportionate authoritarian overreaction. Some of the plans are legally questionable: for instance, the CIMADE and GISTI judgment (ruling that asylum-seekers should retain benefits even if they are the responsibility of another Member State under the Dublin system) was based partly on the EU Charter. A legislative amendment overturning it might therefore be challenged as a breach of the Charter. So might new rules on detention (cf the recent CJEU judgment on challenges to existing detention rules).

Sensible parents use carrots as well as sticks. Why not offer asylum-seekers a modest cash bonus in kind if they accept allocation to a Member State under the relocation rules? Or let them have earlier access to work if they stick to the rules? Or simplified and quicker long-term residence status? 

Returning to the analogy of the angry parent, the Commission has clearly found, like King Lear: 

How sharper than a serpent’s tooth it is

To have a thankless child

Yet its response is, in its own way, as irrational as his.

As for new rules to deter people from coming to the EU in the first place, the Commission threatens much, but is silent on most of the details. One is reminded of Lear again:

I will do such things,—
What they are, yet I know not: but they shall be
The terrors of the earth

But Lear did not have to contemplate convincing the European Parliament, EU Member States or the courts of his unformed plans. So there are political, legal and practical limits to what the Commission can successfully propose. Member States will be reluctant, as ever, to curtail much of their significant remaining discretion over asylum procedures. The European Parliament will probably not rush to roll back the improved standards which it spent five years fighting for. Anyway, the underlying logic of the Commission’s argument is doubtful. If high asylum standards in the EU are such a pull factor, why are there so many more refugees in Turkey, Jordan, Lebanon, and East Africa? Won’t a sharper difference between refugee and subsidiary protection status encourage more appeals and secondary movements too?

The only semblance of balance in the Commission’s paper is its focus on safe passage. But it’s spent two years resisting safe passage in the context of the reform of the EU visa code, using the weak argument that humanitarian visas are not meant for short-term entry. But they fall within the scope of the rules on visas with ‘limited territorial validity’, where the normal rules on visas (such as the time limit) are expressly disapplied. The mention of humanitarian permits in this paper now looks like an excuse to defer dealing with the issue. Similarly, the EU could and should have developed a proper resettlement policy years ago. There’s still no mention of any numbers in this context: compare to the recent suggestions from the UNHCR. And expecting a quid pro quo for the humanitarian gesture of resettlement doesn’t get any less cynical with repetition.

Overall, this is a very disappointing paper from the Commission. There are certainly abuses of the asylum system, but EU legislation already has many possibilities to address them, as regards fast-tracking decisions and appeals, reduced benefits and detention. There’s little evidence here of a balanced, rational and coherent response to the crisis. In fact, this looks rather more like panic.

Of course EU asylum law does not develop in a political vacuum. Member States had a key role agreeing these laws, and the main role implementing them and driving the reaction to the crisis. No criticism of the ‘EU response to the crisis’ should ignore what is ultimately driving that response: the neo-nationalist political parties which are in government in several Member States and form the main opposition in several more. But is endless concessions to these parties really the right strategy? They will always be able to outflank the political mainstream when it comes to anger, fear and ignorance. It’s always better to stand and fight for what you really believe in than to pretend to agree with your opponents’ fundamentally different views.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.ekathimerini.com

The new EU Migration Agenda takes shape: analysis of the first new measures

Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Barnard & Peers: chapter 26

Photo: GlobalNation.Inquirer.net