Towards a Sustainable and Fair System for Processing Asylum Claims in the European Union?
Solon Ardittis examines the merits and feasibility of the new proposals tabled by the European Commission earlier this month to reform the Dublin system and to establish a fair system for processing asylum claims within the EU.
The recent EU-Turkey agreement on refugees appears to have eclipsed the potentially far-reaching policy implications of the release this month of the EC Communication ‘Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe’. This is an important Communication that recognises the gaps and weaknesses of some of the existing EU legal instruments in the field of migration and asylum policy and that further outlines a number of substantive measures to correct and redirect the current EU legal and policy framework in this area.
One of the key merits of the Communication is indeed its recognition of the ‘inherent weaknesses’, and therefore the unsustainability of the Dublin Regulation, which establishes the criteria and mechanisms for determining which member state is responsible for examining an application for international protection - usually, the state through which the asylum seeker first entered the EU. By placing responsibility for the vast majority of asylum seekers on a limited number of member states that happen to host the EU’s external borders, the Dublin system had never been designed to ensure a fair sharing of responsibility for asylum applications across the EU. However, the on-going migrant crisis in Europe has only exacerbated some of the most disturbing implications of such a policy construct. Suffice it to say that, despite accounting for only 2% of the EU’s population, 3% of the EU’s territory and less than 1.5% of the EU’s GDP, in 2015 Greece received more than 80% of the over one million irregular migrants and asylum seekers who entered the EU by sea and land.
The Communication’s proposal to overhaul the Dublin Regulation is therefore a potentially momentous one. According to the European Commission, two options should be considered ‘as a matter of priority’ to reform the system: the first would be to supplement the present regulations with a ‘corrective fairness mechanism’; the second would consist of establishing a new system for allocating asylum applications in the EU based on a distribution key. The Communication further suggests that, ‘in the long term’, the possibility of transferring responsibility for the processing of asylum claims from the national to the EU level should also be considered, in particular by transforming the European Asylum Support Office (EASO into an EU-level first-instance decision-making agency, with national branches in each member state, and by establishing an EU-level appeal structure.
Putting such far-reaching reforms on the negotiating table for the first time in EU migration policy history is certainly a welcome and valiant initiative on the part of the European Commission. It is also one that has been advocated by a number of migration policy proponents for a number of years. The likelihood of such proposals materialising in the foreseeable future, however, should be questioned.
One of the preconditions to the proposed reform of the Dublin system is that there should be trust in the EU’s or other member states’ ability to process asylum claims adequately, and therefore a willingness by all member states to relinquish national sovereignty in this heavily politicised decision-making area. A second precondition is that there should be an active inclination by all member states to implement solidarity and responsibility-sharing policies in the field of EU asylum policy.
Neither of these two preconditions appears realistic in the light of recent history.
In terms of trust and transfer of responsibility in the field of asylum policy, the increasing number of initiatives by several member states, and not only in the Visegrad region, to suspend unilaterally the implementation of key EU instruments such as Schengen and Dublin, only suggest a growing tendency towards the advancement of national, rather than EU approaches and solutions to the on-going migrant crisis.
In terms of solidarity and responsibility sharing, the interim outcomes of the EU Resettlement and Relocation schemes again suggest an uncompromising reluctance by most member states to share the burden supported by the more exposed countries hosting the EU’s external borders. Suffice it to say that, to date, only 15% of the EU Resettlement Scheme and less than 1% of the EU Relocation Plan have been fulfilled. Even before the outbreak of the migrant crisis, a major European Parliament study surveying the member states’ positions vis-à-vis the EU Treaty provisions on intra-EU solidarity in the field of immigration and asylum, had pointed to the significant lack of agreement on the exact implications, scope and perspectives of responsibility sharing in this policy area (1). Considering therefore the poor results of, and political adherence to soft policy measures such as the EU Resettlement and Relocation schemes to date, on what basis would member states be more inclined to sign up to more far-reaching EU norms and obligations in the field of asylum policy ?
Notwithstanding the above challenges and reservations, there is little doubt that the on-going migrant crisis, more than any other development in the field of EU migration in the past, has exposed the pressing need for a substantive reform of the Dublin system. This is especially so in view of the increasing disregard of the system by a number of member states, not to mention the unilateral reintroduction of a number of internal border controls in reaction to mass inflows in fellow member states.
While none of the reforms outlined in the EC Communication appears likely to generate consensus among member states, the proposed establishment of ‘corrective measures’ to the existing Dublin system is perhaps one of the few potentially viable initiatives in the current EU political environment. In particular, the idea of mitigating any significant unfairness in the allocation of asylum seekers between member states through an intra-EU relocation mechanism that would be activated as soon as a predefined threshold in the number of asylum applicants is reached in a given member state is certainly worthy of consideration. While such proposals are not likely to be received more favourably by most member states, their careful discussion could well show that their adoption would at least have the potential to alleviate some of the most insidious effects of the current migrant crisis, and possibly also reduce some of the costs induced by an unfair distribution of burden across the EU.
In terms of promoting a more radical move towards an EU centralised processing of asylum applications, this would clearly need to wait for a possible reduction in the magnitude of migration flows in the years to come. Adopting such a scheme in the midst of the on-going migrant crisis would only fuel increased resentment towards new transfers of prerogatives to the EU institutions in such a critical policy area. However, consideration could perhaps be given to testing the EU processing system on a pilot basis. One way to approach this experiment would be to implement the EU centralised processing of asylum applications only for a couple of nationalities with high recognition rates, for example Syrians and Iraqis. Not only would this approach be less likely to be seen as an erosion of national sovereignty, it could also contribute to establishing gradual trust in the handling of asylum applications by EU institutions.
Finally, the costs of the European Commission‘s proposals, particularly as regards an increase in EASO’s prerogatives, are of course an added challenge that again calls for innovative funding mechanisms. In this respect, the recent proposals by Matteo Renzi to launch ‘Common EU Migration Bonds’ to finance some of emergency activities resulting from the on-going migrant crisis are particularly worthy of notice. While these proposals are already facing strong opposition in key member states such as Germany, which has always rejected the idea of Eurobonds, and while empathy towards the on-going migrant crisis appears to be declining within the EU population, the launch of EU bonds that would clearly aim to reduce some of the most adverse effects of the current crisis would no doubt attract interest among many segments of society. The notion of crowdfunding to support specific activities related to the migrant crisis, or the introduction of a scheme of private sponsorship of refugees along the lines of the very successful programme that has been implemented in Canada for the past 40 years, would be additional avenues for reflection.
Solon Ardittis is Director of Eurasylum, a European research and consulting organisation specialising in migration and asylum policy on behalf of national public authorities and EU institutions. He is also co-editor of “Migration Policy Practice”, a bimonthly journal published jointly with the International Organization for Migration (IOM).
(1) See Eurasylum (2011) Study on the implementation of Article 80 of the Treaty on the Functioning of the European Union (TFEU) on the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States in the field of border checks, asylum and immigration. Brussels: European Parliament.
(2) For a full analysis of Matteo Renzi’s proposals, see, for example, Ardittis, S. (2016) ‘Matteo Renzi’s Migration Compact proposals: a step closer to a viable and comprehensive solution to the EU migrant crisis?’ New Europe, 1162 (24-30 April 2016), p.8.