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By Daniel Thym, Universität Konstanz   RTEmagicC_FZAA-Text-farbig_DE_02.jpg

Europe’s decision-making structures are difficult to grasp for those not following EU affairs regularly. Their byzantine complexity may be explaining why the broader public cherishes the potential for personification — a desire underlying the focus on figures such as Varoufakis, Tsipras, Schäuble und Merkel during the euro crisis. This summer, Angela Merkel took centre stage once again when she triumphed symbolically over Hungary’s Victor Orban by allowing thousands of refugees to enter Germany notwithstanding existing obligations under the Dublin system. Ever since, she has been a heroine for those international observers aspiring a ‘progressive’ refugee policy, including Henri Labayle on this blog.

It is certainly correct that Ms Merkel is a key figure for the future of the Common European Asylum System, even though the impact of individual politicians should not be overestimated. This leaves Europe with a decisive question: what is her plan for the future of EU asylum policy? This blog post aims to provide readers with a view from Germany about the potential way forward, although any prediction remains difficult at this juncture, since positions are very much in flux. Indeed, they evolved considerably over past weeks. The original enthusiasm gradually gave way to disenchantment. One thing is certain, however: the EU plays a critical role in the policy initiatives presented by Ms Merkel in recent weeks.

Changing Narratives and the Call for Closed Borders

International observers tend to portray Germany as an omnipotent country with seemingly unlimited financial and administrative resources. To be sure, the German asylum system continues to function surprisingly well, but the fissures are becoming more visible. Figures illustrate the challenge: last Tuesday, the region of Bavaria (12.4 million inhabitants, like Greece) counted 8000 asylum seekers on a single day (that is 500 more than first time applicants in Greece during 2014). That stretches the administrative capacities of even the most efficient civil service. My home district of Konstanz (the administrative equivalent of a French département or a British county), now expects 400-500 asylum seekers per month for a population of 275,000, in addition to those already there. They are desperate to find accommodation and have just sequestered a school gymnasium. It is no coincidence that at last week’s hearing in the Bundestag’s home affairs committee, it was representatives of local municipalities who used the most drastic language. They are reaching their limits, not least since they take seriously their legal obligation to accommodate asylum seekers appropriately.

Anyone interested in the German position should try to grasp these domestic circumstances, which are influenced not only by numbers. The narrative in public debates changed markedly. Over the summer, the media presented young Syrian families whose parents had often completed tertiary education. Now, we are informed that 70% of the newcomers are young, single males and that the proverbial Syrian doctor is the exception, not the rule. Integration in the labour market is possible, but is not a foregone conclusion. The Ministry of Labour now expects at least half a million refugees to depend on social benefits for an interim period; they are countering calls to lower the minimum wage. In many cities, the housing market is getting tighter every day, negatively effecting those with less money (often second- or third generation immigrants). The opposition leader of the Rhineland-Palatinate, which will hold a regional election next spring, prominently complained about an imam refusing to shake her (a women’s) hand. It is certainly not my intention to over-dramatise the situation. I just want to give readers an idea that the positive narrative has given away to a more nuanced outlook.

Against this background, many politicians, not least from the Bavaria-based Conservatives (the regional offspring of Merkel’s Christian Democrats), champion national solutions. Their common ground is a focus on the national border as a symbolic reference point for regaining control of the situation. The Prime Minister of Bavaria, Horst Seehofer, has long argued for the reintroduction of effective border controls, a reactivation of the Dublin system, the return of newcomers to Austria and, most recently, transit zones at the border. Most recently, the president of the union of police officers was the first one to publicly call for the construction of a fence around Germany. This focus on the national border may reflect, in part at least, the experience of Bavarian municipalities where most refugees enter Germany, often with the tacit support of neighbouring Austria. The Bavarian government wants to stop this and it employs the symbolic force of the state border to underline its determination.

The Merkel ‘Plan’

In a widely publicised 60-minute talk show appearance on the current refugee situation, Angela Merkel prominently proclaimed that she ‘had a plan.’ Its essence is best described by contrasting it with the focus on the state border in policy proposals from within the Bavarian sister party. Ms Merkel insists, most recently in a parliamentary debate about the forthcoming European Council, that ‘isolationism is an illusion in the 21st century in the age of the Internet.’ She deliberately rejects the idea that border controls would provide an easy solution, since she is convinced, as she stated in an interview with the Frankfurter Allgemeine Zeitung on 17 October, that ‘we cannot simply close a country such as Germany; even a fence would not prevent people from coming.’ She emphasises that it would lead to massive disillusionment if politicians propagated a solution which does not work in practice. That arguably reflects the realism of a trained physicist who accepts, as stated in the Bundestag, that there is simply ‘no leverage that we may activate to find an easy solution.’

All this is good news for those focusing on EU affairs, since it involves what she calls a ‘multi-layered’ approach taking centre stage. She wants to combine local, national, supranational and international activities in order to meet the challenge. In other words: Europe is an integral part of her ‘plan.’ She is convinced that the only way forward is to cooperate within the EU as well as with countries of transit and origin. Such a plan will definitely not succeed overnight, but she is determined to make it work and seems ready to invest the necessary political resources to resolve a situation which domestic observers describe as the decisive moment of her chancellorship: its outcome will determine her legacy.

To say that Ms Merkel counts on trans-, supra- and international cooperation does not declare what she wants to achieve in substance. Closer inspection shows that she is bound not to remain the heroine of those with a decidedly pro-refugee outlook. Her position is more nuanced—and arguably always has been. In the TV appearance mentioned above, Merkel herself reminded the audience of an incident  in July which made waves on Twitter with the hashtag #merkelstreichelt. When she visited a school in her home region of Rostock, she met a young girl who spoke perfect German and told the story of her family (apparently failed asylum seekers) and her fear of being sent back to Lebanon. When the girl started crying, Merkel tried to console her, somewhat clumsily, while telling her that not everyone can expect to remain in Germany and that some may be sent home.

That more restrictive outlook was absent a few weeks later when she famously declared that Syrians would be allowed to enter Germany—a move she explains as inherently realist in retrospect, since people would have reached Germany anyway if necessary by foot on the highway. Indeed, many of the measures adopted by the German Parliament last week and defended by Ms Merkel in the Bundestag are anathema to pro-refugee groups such as Germany’s Pro Asyl. The new asylum law will replace cash handouts during the first six months by support in kind, extend periods of mandatory residents in centralised accommodation at regional level, lower income support for those with an enforceable obligation to leave the country and expand the list of safe countries of origin to cover the whole of the Western Balkans. Moreover, it was her government which reintroduced border controls 10 days after the symbolic welcome to refugees from Hungary. In a recent newspaper interview, Ms Merkel declared that Turkey should be a safe country of origin and that she supported transit zones at internal Schengen Borders. Again, realism seems to be her gold standard: ‘we do not have the power to determine who enters the country, but we can decide who is allowed to stay.’

Abandoning the Dublin System

In his post to the Odysseus blog, Henri Labayle expressed his surprise over Merkel’s ‘attack’, without warning shot, of the Dublin system at the European Parliament where she declared at an appearance with the French President François Hollande: ‘Frankly, the Dublin process, in its present form, is obsolete.’ For two reasons, this statement did not come as a surprise to me.

Firstly, it is simply correct as a factual assertion. Dublin never worked particularly well (in the late 1990s, the percentage of actual transfers stood at 1.7%) and it is practically irrelevant at this juncture. Last year, there were roughly 173,000 first time asylum seekers in Germany of which slightly less than 5,000 people—or 2.7%—were actually transferred to another Member State. Only 13% of German Dublin requests resulted in an actual surrender (compared to 45% for Danish requests for a return to Germany). During the first six months of this year, Germany sent 6,517 requests to Hungary of which 98.5% have not yet resulted in an actual surrender (here, pp. 17-29). For a physicist like Ms Merkel, this is quite solid empirical data. Arguably, the decision by the German migration office in late August to suspend Dublin procedures for Syrians was primarily a pragmatic move to free scarce resources for processing asylum claims. Ms Merkel understands that the system is factually dead.

Secondly, she arguably grasps that there is something normatively wrong with Dublin—which, by the way, was never Germany’s preferred solution, not least since the country was the main ‘front state’ at the external borders when the system was set up in the 1980s and early 1990s. Political and academic complaints about the inherent bias of the system to the detriment of Italy, Malta and Greece are legion and it cannot be disputed that its rules are conceptually one-sided (even if the reality never meant that states at the external border had more asylum seekers than others). That is why Ms Merkel champions a permanent quota, mirroring the domestic German experience with a numeric distribution key. According to media reports, she defended the idea over dinner with heads of state or government at the European Council meeting of October 2015. Or do we really believe that Germany should start returning hundreds of thousands of asylum seekers to Hungary, Croatia or even Greece? That will never work.

To be sure, it will not be easy to design a new system, and it may well be that Dublin remains intact for the foreseeable future. But the focus of attention, of the German government at least, has moved beyond Dublin—as the Minister of the Interior highlighted in an interview in late September. They want Europe as a whole to cooperate effectively on the basis of rules which are applied in practice instead of arrangements which consume plenty of political and academic attention, but have little bearing in practice—not least since states at the external borders show little or no intention of complying with their legal obligations under Dublin system and the Eurodac Regulation. Arguably, this presents EU asylum policy with a new constellation. Increased expectations as a result of the realisation of the ‘Merkel Plan’ will augment the visibility of EU affairs, but this new centrality will simultaneously intensify the potential for political failure.

The New Constellation of EU Asylum Policy

Over past years, dozens of articles have been written (including by myself) about the Dublin system and the limits prescribed by human rights standards. Judgments such as M.S.S., N.S. or Tarakhel are the academic mirror image of the normative deficit of the Dublin system described above. They contributed to a general mood decrying structural burdens the Dublin put on countries like Italy and Greece. Politicians from these countries similarly complained about the lack of fairness. It may be one of the most significant mid-term effects of a potential move ‘beyond Dublin’ that this narrative will lose its persuasive power. In a post-Dublin world, the onus would not necessarily rest with Member States far away from the external borders. Other, additional deficits may take centre state, including deficiencies in Southern and Eastern European Member States, which are either unwilling of incapable (or both) of complying with their legal obligations.

The Commission was right to publicise the infringement proceedings started against 18 Member States in late September. However, this step will not be enough to ensure compliance, since most proceedings concern non-transposition of the recent asylum package. To copy-paste European rules into domestic laws may be a first step, which must be followed by application in practice. On this front, many deficiencies remain, not only in the field of Dublin and Eurodac. Remember the appalling pictures of living standards in the Hungarian camp in Bicske? Or inadequate reception conditions in Italy criticised by the European Court of Human Rights? They will not disappear overnight if Hungary changes its laws; and Italy is not even the object of infringement proceedings on matters of reception conditions, since its laws seem to be all right. Only one Member States is brought to the Court by the Commission for its administrative practice: Greece.

In a post-Dublin world, such deficits can no longer be brushed aside with reference to the structural unfairness of Dublin-III-Regulation. The relative success of the Frontex Triton operation in the Southern Mediterranean shows that Europe can deliver on the ground. This model will have to be replicated elsewhere. Ms Merkel will watch carefully whether the EU institutions and other Member States deliver on relocation promises and manage to establish functioning hotspots in Italy and Greece. Of course, they need some time to do so, but summit declarations alone will not be enough in the medium run. The Commission seems to have understood this need for action. Remember that the small district of Konstanz alone currently has to accommodate 400-500 new asylum seekers per month (on top of those already there)—compared to roughly 5000 people for whom hotspots are currently being set up (for temporary registration).

Plan B: What if the ‘Merkel Plan’ fails?

In the Bundestag, Ms Merkel rightly highlighted that domestic policy was no longer confined to intra-state debates. This requires all of us to redirect our attention to European affairs and world politics, including the civil war in Syria. Multi-layered action is the central axis of her ‘plan’ to meet the challenge. For the EU, this novel attention presents an opportunity which also comes with strings attached. It is no longer enough to declare policy intentions and to achieve them gradually over several years (like the famous Stockholm Programme). Ms Merkel and her government will insist that promises are delivered upon. The EU, like the German government, will be judged not only by its declarations, but also by its action.

What if the ‘Merkel plan’ fails? The chancellor would not only have to resign; domestic politics would change dramatically. This would bolster those arguing for national solutions, among other things through permanent and effective border controls. Politically, this would entail the end of the Schengen zone whose realisation has always been considered, in the word of the Court of Justice, to ‘presuppose harmonisation of the laws of the Member States governing the crossing of the external borders …, immigration, the grant of visas [and] asylum.’ Indeed, Articles 28-38 of the Schengen Implementing Convention had contained rules equivalent to the Dublin system from the beginning. Schengen and the Common European Asylum System are intricately linked from a political perspective.

As a law professor, I am aware that non-compliance with EU legislation by some Member States does not authorise others to disrespect their obligations, since supranational law does not accept international law-style reprisals justifying German border controls as a quid pro quo for disrespect of the Dublin and Eurodac obligations by the border states. The linkage is political. The abolition of border controls within the Schengen zone presupposes the effectiveness of related policy fields in the same way the monetary union rests on the effective coordination of budgetary and economic policies. Fortunately, the EU has the power to meet the challenge in the field of justice and home affairs, while it had to improvise outside the Treaty framework to sustain monetary union. However, power and rules are not enough. They will have to be put into practice if the post-Dublin era is not supposed to be the antechamber for a future pre-Schengen.