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The Common European Asylum System (“CEAS”) and the Schengen travel area are in considerable jeopardy. The spontaneous arrival of approximately one million persons in 2015, 90% from the top refugee-producing countries of the world, has cruelly exposed their paradoxes and set in motion centrifugal forces that appear to threaten their very existence. The remedy proposed by the EU institutions includes as its centrepieces the “hotspot approach” and intra-EU relocation schemes. Great store is being placed in their implementation. Indeed, Greece is reportedly under threat of being excluded from Schengen if it does not implement its “hotspots roadmap”. Hotspots and relocation also loom large in the debate on the future of the CEAS. The Commission has already proposed to include them permanently in the Union’s crisis toolbox and reportedly plans to replace Dublin with a permanent distribution key “quasi-automatically” allocating protection seekers to Member States.
While no-one denies that the CEAS and Schengen urgently need therapy, it is worth asking whether the EU and its Member States are selecting the right one. I will offer my reflections on this after recalling the context in which hotspots and relocations schemes have been devised, their essential features, and the first experiences made to-date with their implementation.
The arrivals observed throughout 2015 have been concentrated in both Greece – accounting alone for more than 850,000 over the year – and Italy. These two “frontline” States, have been faced with the formidable logistical challenge of organizing the first reception and identification of migrants. A full implementation of Dublin and EURODAC would have made the challenges even more difficult. Frontline States would have been responsible for fingerprinting all arriving persons, for receiving their claims, and in most cases – given that Dublin assigns responsibility primarily to the State of first entry – for processing them as well as for organizing long-term reception or return.
Many of these responsibilities have remained virtual. A large part of those that have arrived on Greek shores, in particular, have moved on to other Member States via the “Balkan route” without filing a claim or being identified there. Failed identification in the first State of entry has in turn raised security concerns and rendered the Dublin system practically inapplicable vis-à-vis the frontline States – nothing new in respect of Greece, already “excised” from the Dublin system by the European Court of Human Rights in 2011. Destination and transit States have reacted with a flurry of unilateral responses ranging from the temporary reintroduction of checks at internal borders, to the erection of barbed wire fences, to the announcement of national “caps” on the number of persons who would be admitted to claim asylum.
The situation is quickly degenerating in a chaotic and acrimonious chacun pour soi, where refugees are literally left out in the cold at the borders of e.g. Greece and Croatia. The very idea of common policies based on common rules, common interests, free travel, respect for refugee rights and solidarity (see Art. 77, 78 and 80 TFEU) is in tatters.
The “Hotspot approach” and Relocation schemes: essential features
As part of a package of “immediate actions” to counter the unfolding crisis, the Commission announced a series of measures in May 2015, including the “hotspot approach” and “relocation measures”. Both were endorsed by the European Council – nota bene in the perspective of “better contain[ing] the growing flows of illegal migration” inter alia through the “reinforcement of the management of the Union’s external border”.
In the European Agenda on Migration, hotspots were presented as an initiative to “assist” frontline States “to swiftly identify, register and fingerprint incoming migrants” – or more enticingly as “comprehensive and targeted support by the EU Agencies to frontline Member States”. As per the official definition of the Commission, a “hotspot” is a section of external borders characterized by “specific and disproportionate migratory pressure, consisting of mixed migratory flows”. The “hotspot approach” means that EU Agencies intervene there in a coordinated manner through “Migration Management Support Teams”, relying essentially on personnel and equipment to be made available by other Member States.
Subject to arrangements to be made on a case-by-case basis, support may be provided in the identification, registration, and removal of apprehended migrants (FRONTEX); in the registration of asylum claims, the preparation of files, and the relocation of claimants (EASO); and in the investigation and prosecution of crimes (EUROPOL and EUROJUST). Not included in this “comprehensive and targeted support” are the reception of claimants and the processing of claims. Returns also remain essentially in the hands (and on the budget) of the host State despite some funding and assistance being available from the EU. The host State must furthermore commit to a program or “roadmap” of complementary measures allowing it to better manage the situation (e.g. building reception facilities).
On the whole, notwithstanding the “assistance” rhetoric, hotspots are clearly designed to shift back on frontline States all the responsibilities that they (theoretically) shoulder under current EU legislation: to identify migrants, to provide first reception, to identify and return those who do not claim protection, and to channel those who do so towards asylum procedures in the responsible State – in most cases, none other than the frontline State itself site link.
This is where temporary relocation schemes come in. Established by the two Decisions of 14 and 22 September 2015 as temporary emergency measures under Art. 78(3) TFEU, relocation schemes constitute a derogation from Dublin: until September 2017, the responsibility for a number of applicants (66,400 from Greece and 39,500 from Italy) is to be transferred to other Member States. In conformity with the goal of the scheme – re-establishing Dublin “normality” in frontline States – applicants may only be relocated after applying for protection there, after being properly fingerprinted, and after the responsibility of Italy and Greece under Dublin has been established (Art. 3(1) and 5(5) relocation Decisions). Furthermore, only applicants “in clear need of international protection” are eligible, i.e. those who possess a nationality for which the EU-wide recognition rate at 1st instance is 75% or higher (Art. 3(2) relocation Decisions). Very much in the Dublin tradition, the persons to be relocated have no right to choose the relocation State or to refuse relocation as such.
The policy link with the “hotspot approach” is made explicit in Articles 7 and 8 of the relocation Decisions: relocation is to be accompanied by “increased operational support”, and may be suspended should the beneficiary State fail to comply with its “hotspot roadmap”.
First experiences and lessons (not?) learned
While it is too early to draw any final conclusions, it is clear that hotspots and relocation have so far failed to produce any tangible results. The setting-up of hotspots is behind schedule in both frontline States and, in the words of the Commissioner in charge, relocation schemes are “not working”. Indeed, until January 18 only 322 persons have been relocated and as the President of the Commission has observed in November “if we continue at that rate, we will be there by 2101”.
The causes of such delays appear to be manifold. Italy and Greece have been more or less openly accused of feet-dragging on hotspots, even by UNHCR. It is of course an open question whether – willing or not – it would be possible at all for Greece or any other EU State of comparable size and wealth to organize screening and reception for arrivals similar to those recorded in 2015.
Be that as it may, a rather less discussed aspect of the situation is that the other Member States are themselves failing to provide the assistance required to make the whole scheme work: the calls by EU Agencies for personnel to be deployed in hotspots (about 775 officers for FRONTEX until end of January 2016 and about 370 for EASO until the third quarter of 2017) have not been successful so far, and relocation places have been made available in insufficient numbers and subject to many conditions.
Relocation has apparently been slowed down by two additional factors: lack of enthusiasm on the part of protection seekers themselves and, in Italy, a lack of eligible persons as the newly arrived increasingly hold the “wrong” nationalities.
It is quite a range of different causes, and each one would deserve analysis before the next moves are decided. Finger-pointing, however, is proving to be irresistibly attractive. It is, we are told, a matter of “homework” not done properly, and once Europe flings Greece out, all will be well in the Schengen area.
The sole rational reason for the public scapegoating of Greece seems to be to prepare the ground for the application of Article 26 of the Schengen Borders Code thus giving legal cover to border closures longer than six months. For the rest, it is not clear how Greece can be expected to lawfully “stem” a flow that is composed largely of refugees – hopefully not with the navy; or if it really can be expected to shoulder sole responsibility for the identification, reception, and processing of more than 800,000 persons in one year; or what purpose could conceivably be served by suspending Greece from the Schengen area, knowing that Greece has no common land border with any other full Schengen member and that refugees do not travel by plane.
Even if Greece and Italy did in fact bear sole or main responsibility for derailing the whole plan, scapegoating and threats are unlikely to achieve much since a full implementation of the hotspot and relocation “assistance” package would be, on a rational calculus, far worse for them than any sanctions that could be devised or imposed by the EU.
Defining hotspots as “comprehensive assistance” to the frontline States is indeed an interesting choice of words. These States are indeed “assisted” both operationally and financially. However, as noted above, the hotspot approach leaves most or all of the main costs on the host State (reception, processing, detention and expulsion costs) subject to modest financial support from the EU. More importantly, frontline States are in fact “assisted” to better shoulder the full extent of their responsibilities under the existing Schengen and Dublin arrangements. The success of the hotspot approach as defined by the Commission – “fingerprinting […] all migrants” – would exponentially increase their responsibilities and make real the (to-date virtual) massive distributive imbalances inherent in the Dublin system.
Relocation schemes are purportedly designed to offset this perverse effect to a “significant” extent. “Significant” is a slippery word, however, and clearly there is something wrong with the maths involved. Let us assume for the sake of the argument that the schemes would be fully implemented – a most daring assumption. Even so, the number of relocations would not even start to offset the greater responsibilities incurred through “the fingerprinting of all migrants”: the observation is valid for Italy (roughly 40,000 relocations in two years vs more than 150,000 arrivals in one year) and even more for Greece (66,400 relocations in two years vs more than 850,000 arrivals in one year). The restriction of eligible applicants to those “in clear need of protection” further reduces the appeal of the scheme for the beneficiary States. On the one hand, it may significantly hamper the implementation of relocation schemes as shown by the case of Italy (see above). On the other end, the “clear need” condition would leave the (presumably overburdened) State to face all the “bad cases”, i.e. those that will most likely give rise to costly detention and return operations. The insistence of the Italian Minister of Home Affairs on EU assistance with relocation and return before hotspots can become fully operational is far from coincidental.
From “quick fixes” to lasting solutions?
Hotspots and relocation schemes were born as short term policy responses – “quick fixes”. So far, they have failed to achieve significant results and, as noted, blaming the frontline States does not seem either correct or helpful.
The main problem is that the EU and several of its Member States seem bent on holding on to their “quick fixes” for dear life, regardless of whether they can fly at all. The once-sparsely-populated “Dublin is dead” corner now bursts at the seams, and word has it that we already have the magic recipe to replace the “cornerstone” of yesteryear: quasi-automatic distribution keys. Nevermind that the recipe is inspired by a scheme that, for whatever cause, has not worked at all so far.
Before all the (scarce) political capital at the disposal of the EU is spent on this project, it would be nice to have a true, i.e. open and if possible less emotional debate on sustainable solidarity and allocation models for the CEAS and for the Schengen area. The possible shape of such “sustainable models” would be a subject for another post, but I would still mention a few points worthy of discussion.
– First, re-conceptualizing the overarching objective of EU action would help both now and in the future. To say nothing else, “stemming the flow” is not a very realistic goal: the number of refugees arriving on European shore does not depend on the whim of European policymakers, and once refugees arrive they cannot be lawfully pushed back or sunk in their boats. “How to organize decent and orderly reception” – something that is most emphatically lacking at the moment – may be a more attainable objective, not to mention one that is in keeping with the values and objectives enshrined in the Treaties.
– Second, insisting that every arriving migrant should be registered and identified at the point of entry is entirely acceptable. For this to be done, however, identification should be decoupled from the responsibility to organize the reception, protection or return of every arriving migrant. Coupling identification with further responsibilities is a surefire way to induce border States to look the other way, as experience shows, and amounts to assigning overwhelming responsibilities on the basis of geographical location – arguably the allocation principle farthest from “the principle of solidarity and fair sharing of responsibility” (Article 80 TFEU).
– Third, of course, efficient solidarity mechanisms should be in place not only to counter crises but also to ensure fair sharing on a permanent basis. The question is really whether relocation is the right tool. Mass relocation programs tend to pose huge logistical and legal difficulties, especially if forcibly carried out against the will of “candidates” to relocation. That much should be clear not only from the experience of these past months, but also from decades of experience with the Dublin system. Sharing money and operational capacities is far less problematic, and there would be scope for vastly increasing both under the EU Treaties, without prejudice to targeted and voluntary relocation programs. Indeed, talking about financial solidarity, a point that has not been sufficiently discussed so far is why tasks accomplished by Member States fully in the common interest (e.g. border surveillance; first line identification and reception; the processing of applications; the return of irregularly staying migrants, etc…) should fall – in grotesquely asymmetric manner – on national budgets instead of being assumed by the common EU budget.
If we are to avoid the “Plan B” scenario described by Daniel Thym on the EU Migration Law Blog – unilateral border closures, push-backs and refugees in orbit, all of it under cover of highly questionable interpretations of EU law – there is more to be discussed than hotspots, relocation and Greece’s “homework”.