A Common Policy? The Calling into Question of the European Asylum System

Valentina Carlino

University of Siena

“Solidarity is the glue that keeps our Union together. […] And when it comes to managing the refugee crisis, we have started to see solidarity. I am convinced much more solidarity is needed. But I also know that solidarity must be given voluntarily. It must come from the heart. It cannot be forced. We often show solidarity most readily when faced with emergencies.”

These are the words used by the European Commission President, Jean-Claude Juncker, while pronouncing his State of the Union speech in 2016. Faced with the massive number of migrants coming into the European territory over recent years and the humanitarian emergency in the Mediterranean, neither the EU nor its member States have shown a further effort in this regard. On the contrary, the recent pressures on the common European asylum system have demonstrated how problematic the current mechanisms are and have caused deep tensions amongst member States and within civil society.

As is well known, the Treaty on the Functioning of the EU establishes, at article 80, that all the policies concerning border checks, asylum and immigration, and their implementation, “shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the member States.” This principle is often linked by scholars to that of sincere cooperation set out in article 4, paragraph 3, of the Treaty on the European Union.

Problems linked to the so-called burden-sharing bear witness to a Europe facing a crisis in terms of solidarity. The restoration of internal borders along with nationalistic feelings have called into question the effectiveness of a common immigration policy, the implementation of which should contribute to the realisation of an area of freedom, security and justice.

The Past: Dublin

The intention underlying the first Convention addressing the European asylum system was to avoid refugees in constant movement. It did not aim to develop an allocation mechanism, based on solidarity among States. Instead, the Convention sought to ensure examination of an international protection request by a single State (determined by a set of criteria listed in the Convention). This was the so-called Dublin system. Despite subsequent amendments (2003 and 2013) and incorporation into European law, the Dublin system has retained its original approach. The most widely used criterion is the one according to which “Where it is established […] that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection.”

In practice, there is a gap between secondary law and the solidarity principle (provided by for the treaties), which calls for an equal burden sharing. Indeed, such approach generates an imbalance among member States, since the geographical positions of the Countries of first entry makes them supervisors of all the European borders and imposes on them a greater burden of receiving. Even after the communitisation of polices within this field, a certain reluctance, or at least difficulty, to implement “corrective solidarity mechanisms” has remained.

The idea of an “open and secure European Union […], able to respond to humanitarian needs on the basis of solidarity”, enthusiastically affirmed twenty years ago in the Tampere European Council, is nowadays challenged. The principle of mutual trust among Member States, which has always been placed at the basis of the whole area of freedom, security and justice, is also questioned. National asylum systems are supposed to be equivalent, so that there should not be obstacles to the transfer of a non-EU citizen from one Country to another, since they should all guarantee protection. Nevertheless, the collapse of some national reception systems, at once cause and consequence of the harsh criticism to the Dublin approach, has called into question the above-mentioned presumptions, bringing to light a problem of compatibility of mutual trust and protection of rights. In this context, the European Court of Human Rights and the Court of Justice developed case law, showing the move from blind trust to the need to balance trust with the guarantee of fundamental rights of migrants. It cannot be ignored that some European States are nowadays living a moment of constitutional retrogression, so that respect for the rule of law cannot be take for granted.  

Present: ineffective solidarity

The solidarity principle was implemented for the first time in 2015. Pursuant to the European agenda on migration that year, and in accordance with article 78, paragraph III, TFEU, the European Council adopted two decisions requiring the relocation throughout the whole European territory of asylum seekers who had landed in Italy and Greece. The discrepancy between the expected relocation numbers and those effectively carried out raised many questions about the decisions’ effectiveness and the level of collaboration within the Union. Moreover, this automatic mechanism of relocation was strongly criticised by the Visegrad Group (Czech Republic, Hungary, Poland, Slovakia), the members of which proposed a “flexible solidarity”. According to this approach, Countries unwilling to welcome migrants should be able to contribute only with financial resources. This approach was welcomed by many other Member States.

The Slovak Republic and Hungary sought annulment of the above-mentioned decisions before the Court of Justice, which rejected all the arguments by focusing on article 80 TFEU, allowing European institutions to make discretionary choices aimed at sharing the migrant burden among Countries. While encouraging, the impact of that decision is less strong than it could seem, since it is all based on an exceptional mechanism, with limited and temporary scope.

Future: Dublin IV and the (for now) unattainable solidarity

19 October 2017 could have been the first stage of a new path towards solidarity implementation. On that day, the LIBE Commission approved a reform proposal of the Dublin regulation. This draft is welcome; even if there remain some problems. The compulsory system of quotas and the objective criteria provided for in order to fix relocation proportions (taking into account population, GDP and the number of asylum seekers already on the territory) make it an innovative and fair text, finally materializing article 80 TFEU. The proposal of sanctioning a State for not complying with the obligations by imposing a cash penalty is also valuable, since a tool to bind States seems to be necessary. Moreover, Dublin IV would also take into account the migrants’ needs, by considering people’s will and family connections while identifying the competent State in examining the protection request.

Nevertheless, the deep cleavage among member States, as well as the nationalistic and populistic pushes, have proved to be an insurmountable obstacle so far. Even though the reform has been approved by the European Parliament, it is in fact stuck because of the Council’s aversion to this solution.

Quo vadis Europe?

It has become clear throughout that the current trend of many an EU government is straying away from the European value of receiving. Indeed, member States not only are strengthening their borders, but creating new barriers. As a result, the area of freedom, security and justice has become more fragmented than ever, begetting ever-growing distances from consolidated principles which EU law was initially designed upon.

Against such a backdrop, the solidarity principle should be a starting point to rethink the common asylum system as a whole. Indeed, it ought not only be implemented at the legislative level, but substantially deployed as a key binding instrument, as it is an established principle within primary sources of EU law. Hence, a Dublin reform is not only desirable, but also (and especially) necessary. Nevertheless, a paradox is coming to the fore; some national governments strongly oppose it, and at the same time blame the EU for unfairness (the current Italian government being one of them).

At present, the reversal of the European receiving paradigm seems to be unreachable. Yet, it is precisely on these grounds – that of the rediscovery of solidarity – that the European building process might be substantially triggered.

Valentina Carlino is a PhD student in Department of Legal Sciences at the University of Siena, Italy.

Suggested citation: Valentina Carlino, “A Common Policy? The Calling into Question of the European Asylum System” IACL-AIDC Blog (24 June 2019) https://blog-iacl-aidc.org/membership-and-exclusion/2019/6/24/a-common-policy-the-calling-into-question-of-the-european-asylum-system