1. Abstract 3
2. Introduction. 3
3. Contextualization and definitions. 4
3.1. Contextualization. 4
3.2. Migration and Asylum.. 5
3.3. Principle of Solidarity. 6
4. European policies. Dublin system. 7
4.1. Migration and asylum policies. 7
4.2. The Dublin Regulation. 8
4.3. Dublin III and the principle of Solidarity. 10
5. Conclusion. 11
6. References. 13
During the refugee crisis suffered in Europe between 2015 and 2016, the lack of fairness in asylum responsibility sharing became part of the public debate. It shown the major differences present between Member States, and it proved the weakness of the European Union`s institution in times when there is not a homogeneous approach. In this context solidarity was a word commonly used by politicians, but there is a big issue behind this key principle: is a manifold and contested concept.
This paper seeks to discuss the current European regulations regarding migration and asylum and the role that the principle of solidarity plays in this matter. It argues that the combined reading of the Charter of Fundamental Rights and the Treaty on the Functioning of the European Union (TFEU) provides several reasons to doubt about the legality of the Dublin III Regulation, but that this is not enough for the Courts to invalid it. Lastly, it tackles the weight that solidarity has within the Union`s legislations, with an important focus on article 80 TFEU, which will be tool for the assessment of the legality of solidarity instruments.
This paper analyzes the current migration and asylum legislations, revisiting the relation between these regulations and one of the principles that shape the European Union (solidarity and fairness in sharing responsibilities) as enshrined in Article 80 TFEU. I argue that the measures and guidelines present in Dublin III infringe the principle embraced in Article 80, because the responsibility is imposed based in an inadequate criterion of geography. It allocates the pressure on the eastern and southern countries with external EU borders that are closer to the origin countries, at the time that the mechanisms that should ensure the reallocation of responsibilities among the other Member States fail. About this, already in 2012, the Advocate General Sharpston in Cimade and GISTI argued that “the whole system of providing protection for asylum seekers and refugees is predicated on the burden lying where it falls1” with Dublin III. However, the Union has shown the incapacity to reach a common approach towards this situation, and therefore the scenario is far from improving.
Through this paper, several points will be tackled (an overview of the Dublin system, the problematics of the principle of solidarity, etc), concluding with three statements about the relation between the current legislation and the principle of solidarity.
To do so, I will start by contextualizing and defining the main concepts according to European and International law. The second part will consist of the review of European policies in these matters, explaining its relationship with the principle of solidarity. Lastly, a critical perspective will be presented, where the effectiveness and the possible reforms of the current system will be analyzed by presenting its benefits and weaknesses.
3. Contextualization and definitions.
According to United Nations, in 2015 there were 244 million migrants worldwide, representing a 41% increase in comparison to 2000`s figures. This fact includes approximately 20 million refugees2. The origin countries are often located in Africa, the Middle East, South Asia, and Latin America and the reasons behind these movements are mainly economic or due to an armed conflict.
In the European Union, recent times have seen a striking increase in the public attention to this matter, mainly driven by new technologies, media and the direct impact of these new migration routes in the European Union (before the Syrian conflict, the migration routes did not have such a great impact in the old continent). Therefore, coping with migration has become a serious challenge for the EU and its member states, that has also divided the union and the public opinion in several groups. According to the facts presented by the European Commission on its publication “Migration: a roadmap”, the number of asylum applications has been progressively increasing. However, between 2014 and 2015 the number of applicants within the EU increased from 562,680 to 1,257,030, representing a difference of 694,350 people, or what it the same a 123% increase in one year. Nowadays the situation is stabilizing, but it resulted in a crisis that Europe is still dealing with.
In these migration flows, the facts include both refugees and migrants, but although migration and asylum are often approached together, they are different phenomena.
3.2. Migration and Asylum
Migration has contributed to shape the history of mankind from the early days, motivating people to move from one place to another. According to UNESCO, a migrant is “any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country3”. According to the same source, the dominant forms of migration can be distinguished according to the legal status or the motives behind the moving. The European Union defines this term in the same line: “person who leaves from one country or region to settle in another, often in search of a better life4”. It is also important to mention that the refugees are included in this figure, under the categorization of forced migration.
On the other hand, the practice of giving and seeking asylum has also a long history. It started being linked to a religious obligation: to help strangers in need, but with the growth of the notion of state, the power to grant this right switched to nation states. It was not until the twentieth century that asylum began to be recognized as a human right. According to the Convention and Protocol relating to the status of refugees (1951), a refugee is a person who, “owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it5”. The EU acknowledges this definition in its treaties and policies, not providing any further consideration.
3.3. Principle of Solidarity.
In this context, the European Institutions started to mention and to demand solidarity between member states. This principle appears at the most abstract level in the preamble of the Charter of Fundamental Rights, where is listed under the section “indivisible and universal values” on which the European Union is founded. It can also be found in the preamble and in article 2 and 3 of the Lisbon Treaty, where it appears both as an attribute and as an obligation for Europeans.
Despite its importance, the European legislators that claim this principle can do so with a great margin of discretion because solidarity is a manifold and contested concept. European and non-European Scholars have devoted many efforts to the conceptualization of this principle and to exploring its nature as a legal concept67. This were even greater efforts after the principle was mentioned and included in the Lisbon Treaty, but nevertheless, a common and consensual understanding is far from emerging.
Generally, the concept of solidarity has been employed in sociology, philosophy and Catholic texts, being a core concept in Christian ideology and represented originally in roman law. The French sociologist Émile Durkheim defined it as a social cohesion based upon the dependence individuals have on each other in advance societies8, while Peter Kropotkin emphasized on the connection between the biological and the social mindsets in this principle9. On the other hand, the Church`s teaching regarding this matter is explained in the Compendium of the Social Doctrine of the Church, where this principle applies for both material and spiritual goods. On the words of Saint John Paul II to George Bush, solidarity “is not a feeling of vague compassion or shallow distress at the misfortunes of so many people, both near and far. On the contrary, it is a firm and persevering determination to commit oneself to the common good”10.
Lastly, according to Höffe, solidarity denotes a liability, in the sense of a reciprocal obligation to vouch for one another in situations of danger and emergencies. He also notes that the members of this Communities in Solidarity develop emotional relations to one another, which strength increases with the empathetic nature of the community11.
In the context of migration and asylum policies, solidarity can be implemented and demanded in many different forms, ranging from payments to common European founds, to hosting relocated asylum seekers, and including the provision of technical and administrative assistance. How solidarity is to be put into effect remains open and debatable within EU legislation and thus, Article 80 of the Charter of Fundamental Rights and the Treaty on the Functioning of the European Union, requires that solidarity should extend to financial solidarity12. There is an important gap to be filled regarding this topic.
4. European policies. Dublin system.
4.1. Migration and asylum policies
While there are aspects determined by each EU country, there are also certain common rules valid across the EU. Since 1999 the EU has been developing a common immigration policy for Europe that would provide with common immigration and visa rules valid across the EU. These measures were set out in 2009, within the Treaty on the functioning of the European Union, which also sets basic standards for asylum policies. It mainly tackles high-qualified migrants, family reunification and seasonal workers and it does not apply to Denmark, Ireland and the United Kingdom( Küçuk, E. 2016).13.
Regarding asylum, a big issue currently discussed, is related to the definition used in all EU legislations. The European Union acknowledges the one stablished in 1951, in the context of the Geneva Convention, but several professors consider it outdated. At that time, the international scenario was significantly different to the one we have nowadays, and it is reflected on this definition. There are some scenarios that were not taken into consideration such as refugees from civil wars or climate refugees14.
When it comes to the policies, and in addition to the aforementioned treaty, the EU has been working to create a Common European Asylum System (CEAS) since 1999. According to the European Commission migration site, “between 1999 and 2005, several legislative measures harmonizing common minimum standards for asylum were adopted. Also important was the strengthening of financial solidarity with the creation of the European Refugee Fund. And in 2001, the Temporary Protection Directive allowed for a common EU response to a mass influx of displaced persons unable to return to their country of origin”15. This statement is another example of the importance of the solidarity principle in the EU legislation that will be further discussed, but it does not mention the Dublin Regulation.
4.2. The Dublin Regulation
A big important step within the EU regarding asylum was the creation of the Dublin regulation. It is considered the cornerstone of the European Union’s asylum policy, as it allocates the responsibility for dealing with asylum seekers in the EU. As of today, the valid legislation ruling asylum in the European Union is Dublin III. Before that, there were Dublin Convention (1990) and the Dublin II Regulation (2003) that consisted in similar policies that aimed to “stablish the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national”16.
With the entry into force of the Dublin systems, the European Union went a step forward in dealing with asylum seekers. It was the first mechanism that presented a common and agreed protocol for all Member States, that also helped avoiding multiple applications. Dublin III was the legislation valid during the refugee crises suffered between 2014 and 2016. It stablishes three principles: 1) The state responsible for examining the application of the asylum seekers is established within Dublin, not the personal preferences of the refugees as it used to be; 2) Asylum seekers have only one opportunity to apply for Asylum in the EU territory, and in the event of a negative answer to their request, it is applicable for all member states. With Dublin II and III, family reunion was stablished as the first criterion. Otherwise, the state responsible is where the applicant holds a visa or residence permit and second that through which the applicant entered the Union; 3) All asylum seekers may be transferred to the member state to which they are assigned. This regulation was (and it still is) severely criticized due to several points17.
The first is that Dublin does not work fairly. The most commonly-used criterion is that of the first country of arrival, and with it the responsibility falls disproportionately on the south and eastern border countries. Once they are registered in the first country of arrival means not being able to seek asylum in other member what means they should stay in the entry country until their status has been cleared18.
The second is that Dublin is not efficient. It is inefficient because, despite the aforementioned criteria, most applicants seek asylum in a different country to the one in which they arrived. According to Eurostat and Frontex statistics, only 64.625 of the 170.000 irregular arrivals in Italy sought asylum there. In 2014, more than a third of the asylum claims were made my people who had previously applied in another EU country. As an example, 11% of those applied first in Italy and once again in Germany, Sweden or Switzerland19.
The third and final criticism is that this system jeopardizes the refugees’ rights. The European Council on Refugees and Exiles has condemned that the fair and efficient examination of asylum applications is not guaranteed in all member states20. Other reports also denounce the way that the asylum seekers that are returned to another country must wait a year or more before their case is examined. And ultimately, these reports coincide in pointing out that the detention of applicants prior to transfer to another country is a common practice and that, in most cases, the refugees express their refuse to being moved21.
Despite being unfair, inefficient and risking the rights of the asylum seekers, Dublin is a very expensive system. The persistence of this legislation can only be understood if we consider it as the result of a precarious balance of powers within the European Union. The insurmountable differences among the Member States (while some ask for an integrated system, others insist on maintaining national prerogatives) makes impossible the creation of a renewed common approach.
4.3. Dublin III and the principle of Solidarity.
Another important point regarding asylum policies, and more concretely the Dublin is its relationship with the principle of solidarity. As was already mentioned, Article 80 TFEU requires all EU asylum policies and their implementation to be governed by the principle of solidarity and sharing responsibility. However, as previously discussed, the Dublin system does not comply with this requirement. For this reason, are we to conclude that the Dublin III Regulation is a breach of Article 80 TFEU?
Answering that question requires to consider some controversial point such as the margin of discretion that the European legislator have when concretizing what the principle of solidarity entails in the framing of European asylum policies: The wide margin of discretion has been said by the Court of Justice of the European Union (CJEU) to follow from the need to strike a balance between the rights of individuals and the decision making prerogatives of the institutions22. Article 80 TFEU mentions solidarity and fairness, two contested concepts, and this by itself reveals the limits as constrains on the legislator. At the same time, this means that there is often no single right way of realizing a norm that imposes a general obligation and that the opinions are varied23. Quoting J. Bast, “Given the lack of clarity in relation to the content of the obligation imposed, Article 80 TFEU cannot easily be used in an action for failure to act to force the Union to adopt a new measure in order to give effect to the principle of solidarity and fair sharing of responsibility24”.
With this said, it is improbable that the Courts could declare the relevant parts of the Dublin regulation invalid because, after a review of its European constitutionality, the margin regarding solidarity is too wide.
The recent refugee crisis has shown that a Union without borders cannot be sustained in the long run if its Members have such great discrepancies. Because migration and asylum are not exclusively common competences, each national decision affects the area of free movement as a whole. In order to defend it, it is necessary for all Members to acknowledge their obligation and responsibility in protecting refugees, being this not only a requirement, but an obligation enshrined in Article 80 TFEU and in the Charter of Fundamental Rights. A crises scenario cannot undermine the rights of asylum seekers and consequently, any decision and legislation must have the protection of those in need as the main priority. To do so, the European Union requires an understanding of solidarity, fairness and responsibility sharing, not only among Member States but also between Europeans and asylum seekers.
The European Union and its Member States are currently at a difficult crossroads. They need to decide whether keep the status quo in the form of Dublin III or seek to remake and improve the system providing a more equitable distribution of protection duties25. The first decision would be the easiest, since it would likely avoid opening the Pandora Box about the major differences between the North, the South and the East when it comes to migration. However, the present system “falls short of what European constitutional law requires by manifestly infringing the principle of solidarity and fairness in responsibility sharing under Article 80 TFEU”26 and it would need a great revision.
The current legislation, instead of using criteria relevant to determining the capacity of each Member State to host refugees (such as population, economic power or labor market), makes geographical the key criterion to place this responsibility. The inequalities that this system creates (even in a non-crisis situation) are not eliminated with the effective solidarity instrument required by the TFEU and therefore, the Dublin III Regulation breaches the principle of solidarity and fair sharing of responsibility defended by the Union. The scenario created, filled with overburdens, makes some Member States incapable of protecting the asylum seekers and their fundamental rights and although it introduces an emergency scheme that can be activated, it does not specify what constitutes an emergency. It results in a recurring problem: the marge created is too wide and therefore the concrete obligations and the decision-making processes are not clear enough.
Lastly, the principle of solidarity plays and will play an important role in the development of future regulations in the EU. It is extremely important for the Union to further discuss and narrow down this term, since its interpretation has already created many controversies. Solidarity and fairness in responsibility sharing are basic principles in the European Union, and as such must be factored into the application of all common laws.