Immigration analysis: How likely are member states to support the European Commission's proposed agenda for handling the current migrant crisis? Lee Jackson, a barrister at Gherson, believes the Commission's plans to relocate and redistribute asylum seekers across EU countries are will be met with opposition by many states.
What is the background to this?
The recent large-scale loss of migrant lives in the Mediterranean has resulted in increasing pressure being put on the international community, and particularly the EU, to do something in response. On 13 May 2015, the European Commission published a communication setting out 'A European Agenda on Migration' which contained a number of suggested strategies for dealing with the crisis.
The measure that has attracted most publicity is the proposal to activate the emergency system in the Treaty on the Functioning of the European Union (TFEU) to relocate asylum seekers and distribute them among member states. This is already facing widespread opposition from a large number of member states.
In the short-term, the agenda also aims to take immediate action to prevent further loss of migrants' lives by providing additional funding to:
o Frontex joint search and rescue operations
o safe and legal resettlement of people to Europe
o the Regional Protection and Development Programmes, and
o the most affected member states
The agenda also aims to strengthen Europol as an intelligence hub for dismantling criminal networks and controversially suggests launching operations to capture and destroy boats in the Mediterranean.
In the longer-term, the agenda proposes to review the entire system for determining responsibility for considering asylum applications.
How has the international community reacted to refugee crises in the past?
The international community as a whole has jointly intervened on numerous occasions in response to refugee crises, usually under the auspices of United Nations High Commissioner for Refugees (UNHCR).
Notable resettlement programmes have included:
o Hungarians in the 1950s
o Ugandan Asians in 1972, and
o Latin Americans from Chile, starting in 1973
The largest resettlement programme--the Indo-Chinese boat people--occurred in the 1970s and 1980s. The international community intervened when local asylum countries refused to accept any more refugees, preventing boats from landing and towing them out to sea--conduct which finds echoes in south-east Asia today.
The prospect of blanket resettlement is widely considered to have eventually become a pull factor to economic migrants from Indo-China, and screening was then introduced. Subsequently, the use of resettlement has waned internationally, although it has been utilised in more limited numbers following the Iranian Revolution, the First Gulf War and the Yugoslav wars.
The focus in recent years has been on the consideration of individual asylum applications in host countries, rather than upon large-scale resettlement. This is not to say that the concept of resettlement is dead, and UNHCR has endorsed a target of 20,000 resettlement places for the EU per year by 2020.
At the Tampere European Council of 1999, the EU member states agreed to work towards a common European asylum procedure. This has led to the introduction of measures aimed at harmonising the minimum standards for asylum throughout the member states, dealing with asylum procedures, reception conditions, qualification criteria, as well as the Dublin regime for determining the country responsible for considering applications, and the European Dactyloscopy (EURODAC) fingerprint database. However, it is notable that the emphasis of all of these measures is upon the consideration and determination of individual asylum applications. The Dublin regime's core principle is that each asylum seeker should normally have their application considered by the first country in which they arrive.
In response to the Kosovo war, the EU passed the Temporary Protection Directive 2001/55/EC, which sets minimum standards for giving temporary protection in the event of a mass influx of displaced persons. However, the provisions of the Directive, which requires the declaration of the existence of a mass influx of displaced persons by a Council Decision, have never been triggered.
In this context, it is perhaps unsurprising that the EU's collective response to the current growing crisis, in the form of mass migration across the Mediterranean, has thus far been ad hoc, given that its structures are primarily geared to the consideration of individual asylum cases and that Dublin firmly places the burden on those Mediterranean countries where the migrants arrive.
Some of the proposals contained in the 13 May 2015 agenda therefore represent a radical departure from existing practice.
What powers does the EU have to introduce a non-voluntary quota system?
The agenda says that the European Commission will, by the end of May 2015, propose triggering the Art 78(3) of TFEU emergency response system and introduce a temporary European relocation scheme for asylum seekers who are in clear need of international protection, ie a quota system.
Art 78(3) states:
'In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.'
The member state concerned is primarily Italy, where most of the migrant boats have been heading.
It should be noted that Art 78(3) is part of Title V (Area of freedom, security and justice) of the TFEU and does not apply to the UK and Ireland, unless they exercise their respective 'opt-in' rights. Denmark has opted out of Title V entirely.
This temporary emergency measure under Art 78(3) is intended to be 'the precursor of a lasting solution'. The agenda says the EU 'needs a permanent system for sharing the responsibility for large numbers of refugees and asylum seekers among Member States'. The European Commission therefore intends to table a legislative proposal by the end of 2015 to provide for a mandatory and automatically-triggered relocation system to distribute those in clear need of international protection within the EU when a mass influx emerges.
Could this quota system be blocked?
Yes, the proposal for a quota system can (and probably will) be blocked. Art 78(3) itself indicates that the Council will make the ultimate decision after consultation with the Parliament. The ordinary legislative procedure applies to Art 78, and the Council's decision will therefore be made by a qualified majority vote.
By 19 May 2015, France, Spain, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland and Slovakia had all publicly expressed opposition to the proposal, meaning that a sufficient minority had been formed to block the passage of the measure in the Council.
On 13 May 2015, UK Home Secretary Theresa May wrote in The Times that the UK will not participate in a mandatory system of resettlement or relocation. As noted above, the proposed quota system would not apply to the UK unless it exercised its opt-in.
What rights are afforded asylum seekers once they are in the EU?
The minimum rights of asylum seekers once they are in the EU are contained in Council Directive 2003/9/EC of 27 January 2003.
Under that Directive, member states must guarantee, among other things:
o certain material reception conditions, in particular accommodation, food and clothing, in kind or in the form of a financial allowance--allowances must be such that they prevent the applicant from becoming destitute
o family unity
o medical and psychological care
o access to the education system for minor children and language courses to enable them to attend ordinary school
It is important to note that these are minimum standards and it is open to member states to apply more favourable conditions of reception to asylum seekers.
Despite the common minimum standards, there are disparities between the treatment of asylum seekers between member states. In the most extreme cases, notably concerning Greece, there have been repeated findings that the conditions of detention for asylum seekers constitute inhuman and degrading treatment.
In addition, the Qualification Directives (the recast Directive 2011/95/EU applies to all member states except the UK, Ireland and Denmark and the earlier Directive 2004/83/EC applies to the UK and Ireland) impose minimum standards for qualification as refugees or as beneficiaries of subsidiary protection, yet there are considerable disparities between member states in the proportion of successful applications.
In the context of the current Dublin regime, such disparities in treatment and success rates operate as a push factor, driving asylum seekers to try to pursue their claims in other member states.
Could asylum seekers exercise free movement once they have entered the EU?
In a word, no. The Dublin regime determines the member state responsible for considering an application, usually the first country in which the asylum seeker arrives, and anyone seeking asylum in another member state will normally be transferred back to the country of arrival for consideration of their claim.
The Dublin regime inevitably places immense pressure upon those countries that are easiest to reach by irregular means, in particular Italy, Greece, Malta and Bulgaria. The agenda's proposal to provide for a mandatory and automatically- triggered relocation system is designed to relieve that pressure. However, it can be seen that it amounts to a complete rethink of the Dublin regime, and would doubtless face considerable opposition from those member states that would have to accept more asylum seekers. As already stated, the UK has said that it will not participate in a mandatory system of relocation.
What challenges would a quota system face?
The immediate challenge a quota system would face is getting such a system introduced in the first place, given the opposition of those member states that would face an increased burden. However, even if such a system was ever brought into existence, it would still face considerable practical problems.
For a start, the distribution system would mean the imposition of the country of asylum upon the asylum seeker. To many asylum seekers, this would be even less desirable than the current first country of asylum principle, where in some cases there might at least be some degree of choice as to the country in which they arrive. If an asylum seeker is sent to a country in which he or she does not wish to reside, then they are more likely to move illicitly to another country.
In addition, the disparities between success rates in asylum applications in different member states would mean that the system would effectively become a lottery, with the prospects of success depending upon which country the asylum seeker is sent to.
Furthermore, there are risks in sending asylum seekers in greater numbers to countries that currently receive very few, particularly countries where there may already be problems of xenophobia against minorities. There may be a greater risk of violence or discrimination against asylum seekers in those countries than there would be elsewhere. In addition, sending greater numbers of asylum seekers to those countries also runs the risk of increasing support for nationalist parties and hostility to foreigners generally.
Finally, it should be borne in mind that the proposals being put forward relate to asylum seekers 'in clear need of international protection'. The agenda is silent on what would happen to those who are not 'in clear need of international protection'. Some governments have expressed the view that many of the Mediterranean migrants are simply economic migrants. Presumably they would remain the responsibility of the country of arrival. However, what about persons who are in need of international protection but not obviously so, ie a case requiring careful consideration before a decision can be reached? Would they remain the responsibility of the country of arrival as well?
On what basis is it proposed asylum seekers be allocated?
In respect of the temporary relocation scheme, the distribution key is contained in the Annex to the 13 May agenda.
It states that the key will be based on the following elements:
o the size of the population (40%)o total GDP (40%)
o average number of spontaneous asylum applications and the number of resettled refugees per one million inhabitants from 2010-2014 (10%), and
o unemployment rate (10%)
The receiving member state would be responsible for the examination of the asylum applications.
The four main recipients under this relocation scheme would be:
o Germany (18.42%)
o France (14.17%)
o Italy (11.84%), and
o Spain (9.10%)
The UK would not be included in this temporary relocation scheme unless it opts in. As noted above, Theresa May has already stated that the UK will not do so.
As noted above, UNHCR has requested that the EU create 20,000 resettlement places per year by 2020. In response to this, the European Commission will, by the end of May 2015, adopt a recommendation for a European resettlement scheme, which will consist of a single European pledge of 20,000 resettlement places.
The proposed allocation of these 20,000 individuals for resettlement will be calculated using the same distribution key as that used for the temporary relocation scheme. The European Commission has included the UK, Ireland and Denmark in its proposed allocation. The UK would be asked to take 11.54% of those to be resettled, or 2,309 people. However, the European Commission notes the UK's, Ireland's and Denmark's positions in respect of Title V.
Under these proposals, Germany would take 3,086 people, France 2,375, Italy 1,989, and Spain 1,549. These numbers would increase if, as would be likely, the UK, Ireland and Denmark did not participate.
In any event, these proposals will be in the form of a non-binding recommendation. Given the apparent lack of enthusiasm of member states for burden-sharing, it seems unlikely that a scheme based upon a similar method of distribution calculation would attract the support required to progress any further.
The European Commission's proposals are based upon a perception that the current Dublin allocation of asylum seekers is not working and is placing an undue burden upon EU border states, particularly in the Mediterranean. However, it is evident that the proposed solutions contained in the agenda regarding burden-sharing are already meeting with substantial resistance. Indeed, there appears to be far more enthusiasm among member states for taking action, including military action, to prevent migrants arriving in the EU in the first place than there is for deciding what to do with them when they get here, or for resettling persons who cannot safely stay in their own countries. It is unlikely that member states will endorse proposals such as those contained in the agenda unless there is overwhelming international and public pressure for them to do so.
Lee Jackson is a barrister with the leading immigration law firm, Gherson, where he specialises in asylum and human rights work, as well as general immigration. After qualification, Lee was a Legal Officer at the Refugee Legal Centre. He was then in private practice at the Bar from 2000-2009. He has worked in-house at Gherson since 2009.
Interviewed by Jane Crinnion.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.