Nothing New from the Western Front: Solidarity à la Carte, the Continuation of the Dysfunctional Dublin Regulation

The European Union decisions number 1523 and 1601 establishing provisional measures to aid Italy and Greece in managing the asylum-seekers influx, stipulated that each Member State should accept a certain number of asylum seekers from these countries in line with the principles of solidarity and fair sharing of the responsibility. This was seen as a solution to the European migrant crisis, aiming to share the responsibility proportionally between the member states, according to their population and financial means. To date most of the members states have not complied with the assigned quotas and have accepted less than 3%, leaving the Greek and Italian asylum systems overwhelmed. The situation is caused mostly by the Dublin III Regulation (1.1Mb pdf) that sustained an unfair system of responsibility distribution within the EU. The Regulation stipulates that the first Member State where fingerprints are registered, or an asylum claim is lodged is responsible for a person’s asylum claim. That resulted in five member states reviewing 72% of all the asylum seekers applications lodged in the European Union.

When member states cannot cope with the influx of the asylum applications, they might resort to measures that are incompatible with cornerstone human rights, simply because they don’t have the means to proceed otherwise. In 2018, the Italian government did not permit a humanitarian ship with 629 people on board to dock at an Italian port. On March 1, 2020, the Greek government decided not to accept any asylum application during a 30-day period by individuals that had come into the country irregularly. An unprecedented decision that breached different conventions and the Dublin III Regulation. Previously, the Grand Chamber of the European Court of Human Rights in M.S.S v Belgium and Greece 30696/09 , found that Greece had breached the Article 3 of the European Convention on Human Rights, which prohibits inhuman or degrading treatment or punishment. Other national courts like the court of Appeal of England and Wales and the Irish Higher Court, expressed their concern on transferring asylum seekers to Greece.

To resolve the deadlock caused by the Dublin III the European Commission in its new Pact on Migration and Asylum calls for “flexible solidarity,” a voluntaristic approach to the placement of the asylum seekers. The pact is promoted by the European Commission as a fresh start on migration in Europe, but it follows on the same lines of the dysfunctional Dublin Regulations and the Visegrad Group’s joint statement (101Kb pdf), submitted in 2016 at the Bratislava Summit. The statement called among other things, for the halting of irregular migrants to guarantee the security of the EU, the Member States and individual citizens. The language employed had military connotations eg “combat”, “external threat”, “protection of external borders” and above all it introduced the concept of “flexible solidarity” proposing that every distribution mechanism should be voluntary.

In the EU migration and asylum context this would mean that a substantial share of the responsibility will be taken upon from the same countries; Italy and Greece mostly due to their geographic location, and France and Germany, due to their ability and will. It is to be expected that under such system the Visegrad Group countries (Poland, Hungary, Czech Republic and Slovakia) will not opt to process any substantial number of asylum application, as they have done until now. The EU’s constant indecisiveness on implementing a coherent EU Asylum policy remains the greatest obstacle that has caused so far EU’s failure in addressing effectively the refugee crisis.

The shortcomings of the new proposal are many. The proposal does not foresee any sanctions for those EU Members who would not opt to welcome asylum seekers, it allows member states to choose the nationality of the asylum seekers it will accept and there is no provision for the resumption of sea rescue missions. This gives a wide margin of discretion to countries with neoliberal governments to avoid their responsibilities under the EU Treaties (Article 80 TFEU). Transposing the “flexible solidarity” concept from the join-statement to the Commission’s proposal is decidedly a retrograde step in the EU’s efforts to harmonise the member state’s stance on the asylum-seekers situation.

This voluntarist conception of the EU’s asylum and migration future policy will not work. It cannot succeed where even the quota system, agreed upon in 2015, failed. The fact that Member States challenged the quota system before the CJEU (Cases C-643/15 and C-647/15) is a clear indication of the European Union’s solidarity crisis and that solidarity is not enough to ensure a fair sharing of responsibilities between member states.

Large-scale migrations will be part of our future due to immense global inequalities, cultural polarisation and religious fundamentalism. Sharing fairly the responsibility between the member states, will remain an ongoing challenge for the EU. Its commitment should lie principally in the human rights standards as stipulated in the treaties and the international agreements it is party of. Such standards should be safeguarded at any cost. Therefore, provisions on sanctions and infringement procedures, on non-complying member states should be a sine qua none of future proposals on immigration and asylum policies.

Short biography

Griselda Qosja, is a Research Associate at the University of Hamburg and the coordinator of the Master in European and International Law since December 2017. She has previously worked for UNICEF and Open Society Foundation and has held various visiting research positions at the University of Texas / Austin, Max Planck Institute / Hamburg, MaxPo / Paris and CESL / Beijing. Her current research focuses on constitutional and human rights law. In 2017, she was awarded the Civil Society Scholar Award from the Open Society Foundations for her research