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Maarten den Heijer, Assistant Professor of International Law, University of Amsterdam

The Council continues its discussions on reforming the Dublin system. A key challenge for the Maltese Presidency is to find a compromise between those Member States supporting the European Commission’s proposal for a corrective allocation of asylum seekers and Member States advocating “flexible” or “effective” solidarity. The term flexible solidarity was first coined in a joint statement of the Visegrad-group (Czech Republic, Hungary, Poland and Slovakia) and described as enabling “Member States to decide on specific forms of contribution taking into account their experience and potential.” The statement also stressed that “any distribution mechanism should be voluntary. In a subsequent non-paper, the concept was rebranded “effective solidarity”. Although the counter-proposals have met considerable reservation from other Member States and were cast aside in commentaries as offering only hollow buzzwords, I argue that the Slovak non-paper deserves serious attention. The solution for preventing future chaos on the European continent lies, in my view, not necessarily in the fair-sharing of people (whatever that precisely means). More important is to agree on a solidarity mechanism that will be predictable and guarantee that no Member State is left alone, to use the words of Commissioner Avramopoulos.

Below are six arguments for opening our ears to what the V4 have to say:

1. There is not that much light between the Commission’s proposal and Slovakia’s non-paper. The proposals vary in tone more than principle. The non-paper proposes, just as the Commission, to leave the present allocation criteria intact and to complement them with a solidarity component when Member States’ asylum systems are under strain. The differences are that the non-paper does not define the circumstances triggering the solidarity mechanism (which is indeed a quite major issue, see my concluding remarks) while the Commission fixes these at a Member State receiving a number of asylum seekers that exceeds 150% of what is deemed fair for that Member State on the basis of its population size and GDP; and that the Commission proposes to distribute any “excess” asylum seekers proportionately among the Member States, while the non-paper suggests that solidarity could also take other forms, mentioning financial contributions to Member States under pressure, contributions to EU agencies, sharing reception facilities (notably in the case of neighboring Member States) and taking over rejected asylum applicants. Although one could argue that there is a fundamental difference between sharing people and money or other resources, the European Commission likewise proposes a “flexible” component by allowing Member States to temporarily not take part in the mechanism but to make a financial contribution instead (although this is set at the mind-boggling amount of EUR 250,000 per applicant not received). Further, by proposing that solidarity can also consist of taking over responsibility for returning rejected asylum-seekers the non-paper suggests a form of people sharing that is absent in the Commission’s proposal.

2. The EU abandoned the principle that all (associated) EU Members should display solidarity in the field of asylum a long time ago. Several Member States have from the start of the asylum integration project been allowed opt-outs (UK, Ireland, Denmark). Further, although asylum harmonisation was from the outset considered to be a measure flanking Schengen, the asylum instruments are not considered to be a development of provisions of the Schengen acquis within the meaning of the Association agreements with the EEA countries and Switzerland. Iceland, Norway, Switzerland and Liechtenstein are therefore barred from joining the instruments aiming to ensure proper safeguards for asylum seekers and refugees although they could cherry-pick participation in the Dublin Regulation, which is generally beneficial to these countries in terms of the ratio of incoming and outgoing Dublin transfers. On the other hand, the Associated countries were not forced to take part in the current (ill-)functioning relocation schemes for 160.000 asylum seekers in Greece and Italy – even though they did so voluntarily (Art. 11 of Decision 2015/1601). The Commission had proposed that these countries would take part in the relocation scheme under threat of the guillotine clause (p.5), but this was sidetracked by the Council basing the scheme on its power to adopt emergency measures under Art. 78(3) TFEU. The opt-ins and opt-outs were at the time accepted as the only way to move the EU forward. But they have also eroded the legal and moral basis for “enforcing” solidarity. It may simply be much more difficult to mobilise Swedish public support for relocating asylum seekers when two neighboring States are allowed to behave as free riders (I do not argue that they are, but that they are allowed to be). If the EU genuinely insists on equitable burden sharing, it would be more consistent if solidarity is enforced not only on full Members, but also on other States that benefit from the European project, by making, for example, participation in Schengen or access to the internal market conditional on participating in asylum solidarity mechanisms.

3. There is nothing wrong as such with flexible, or differentiated responsibility. In international climate law, as well as in several other specialized treaty regimes, the principle of common but differentiated responsibility successfully addresses both the challenge of collectivizing policy responses and of promoting substantive equality between states by recognising differences in their respective economic and technical capacity to tackle a problem and their contribution to a problem. Differentiated responsibility may, depending on the context, bring about a more equitable outcome than level obligations (for an excellent overview, see V. Roeben, ‘Responsibility in International Law’, Max Planck Yearbook of United Nations Law, Vol. 16, 2012, p. 99-158). In the context of international refugee law too, there have been proposals for implementing common but differentiated responsibility. Hathaway argues, taking a global perspective, that “it is important to recognise that there are very real differences in the manner in which different countries can best contribute to the successful implementation of a more collectivised system of refugee protection” (p. 102-103). He does caution, however: “While the provision of major fiscal support should clearly be factored into the equation, every state party should be required to play a meaningful role in not just the sharing of burdens – that is, financial and related costs – but also in the assumption of human responsibility for refugee protection.” The point he makes is that although states should not be allowed to simply buy out their protection obligations, there can be some trade-off.

4. The mandatory allocation mechanism proposed by the Commission not only faces the obstacle of unwilling Member States but also of potential reluctance of asylum seekers to submit themselves to it. It is quite understandable that asylum seekers have doubts about being transferred to a Member State where recognition rates are lower than in other Member States or whose governments stir up hostile sentiments against refugees. This jeopardizes the effectiveness of the Commission proposal in two ways. First, the asylum seeker is less likely to cooperate with relocation (which is one explanation for the lack of progress of the current relocation schemes) and second, it increases the risk of secondary migration after relocation. I do not propose that those Member States should be rewarded for their xenophobic agendas, but neither would I advocate a policy of throwing refugees to the lions.

5. The Commission proposal itself is unlikely to have a truly equitable outcome. The Commission dropped its earlier idea (p. 8) for a permanent system for burden sharing through a distribution key (presumably because too many Member States voiced opposition to it, see p. 13 of the Explanatory Memorandum). The solidarity mechanism kicks in only after the number of applications in a Member State exceeds 150% of what is deemed fair. Moreover, as is observed by UNHCR in its comment to the Commission’s proposal, there is no solidarity pertaining to identifying and registering applicants, admissibility screening, handling inadmissible and security cases, and returns of those rejected. The default position remains that Greece and Italy will have to shoulder a significantly larger share of responsibility. As observed above, the non-paper could – at least on paper – be more favorable to Greece and Italy as it suggests that solidarity should extend to these other burdens as well.

6. Finally, it is more appropriate to compare Slovakia’s non-paper with present-day reality than with the blueprint of the Commission. The current Dublin system is highly ineffective because of a lack of consistent and correct implementation. This paradoxically results in a distribution among Member States that is far more equitable than the result would be if the Dublin regulation would be correctly applied in all cases: the over one million refugees and migrants that fled to Europe by sea in 2015 did not remain in the Member States responsible for handling their claims (Greece and Italy) but the large majority relocated themselves across Europe. According to the figure below, asylum seekers are by no means distributed evenly, but the countries disproportionately burdened in the first half of 2015 were not Italy and Greece, but Hungary, Austria, Germany and Sweden. The European Commission aims to increase Dublin’s effectiveness by introducing a range of deterrents and coercive measures on both Member States and asylum seekers. But even if this results in more compliance with Dublin, the question is to what extent. Moreover, two specific risks remain. First, as long as Greece remains incapable or unwilling to provide appropriate protection to asylum seekers and it is legally impossible to effectuate Dublin transfers to it, the system is fundamentally distorted. Second, by setting the trigger for activating solidarity at 150% of what is deemed fair, there remains a potent incentive for Member States such as Greece and Italy to not register arrivals. Although one could argue that the closed border with Macedonia will lure Greece into playing by the rules, that argument does not apply to other overburdened Member States; and the prospect of sealing off Greece is not sustainable in the long term.

Obviously, with the non-paper too, the proof of the pudding will be in the eating. Although suggesting what forms solidarity could take, it is disturbingly silent on concrete commitments. But a step forward is that it holds that “all Member States should take part in a form or another to this collective effort” and that it speaks of “predictable, fair and objective targets (in terms of trigger and ceiling)”. The uncomfortable lesson from the never activated Temporary Protection Directive is that it’s important to have predefined triggers and commitments (instead of relying on the Council being unable to agree on there being a situation of mass influx or Member States contributing in a non-existent “spirit of Community solidarity” – Art. 5 and 25 Directive 2001/55/EC). The contents of these triggers and commitments are, however, to a considerable extent, negotiable. It is now up to the V4 to put their money where their mouth is.