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Natascha Zaun, postdoctoral researcher at University of Oxford

Understanding the way negotiations about asylum work and why the rules they produce may often not be applied are key elements, in particular for policy makers engaged in the area of asylum in a race for always more legislation at EU level. While the Parliament and Council are currently negotiating an unexpected third generation of rules, the book EU Asylum Policies sheds light on the reasons why the Member States adopt one or another attitude and also their bargaining capacity. This is why the Odysseus Blog decided to give the floor to the author Natascha Zaun who has just published the outcome of her very interesting PhD.

The 2015 crisis has highlighted the severe deficiencies of the Common European Asylum System (CEAS) which has never achieved minimum let alone full harmonisation of asylum policies in the European Union (EU). Not the – albeit unprecedented – inflow of more than a million refugees into Europe but the systemic deficiencies of EU asylum policy have caused this crisis.

I try in my book to explain why the CEAS is broken, while addressing a key puzzle of research on EU asylum policy-harmonisation of the last decade, namely:

1) why EU asylum policies do not represent the lowest common denominator among Member States and

2) why Member States did not use these to downgrade domestic standards which would eventually entail a race to the bottom in asylum standards across Europe.

Scholars working in the area had usually expected both lowest common denominator and race to the bottom dynamics. This was often explained through the venue-shopping theory according to which restrictively-minded ministers of the interior had chosen the EU level to negotiate ‘behind closed doors’ in the Council and thus be able to circumvent liberal veto players, highlighting that Brussels demanded these restrictive changes and that the Minister’s hands were very clearly tied (Guiraudon 2000). However, none of these expectations found empirical confirmation. Instead, domestic transposition studies demonstrated that often Member States maintained their previous policies after transposition of EU legislation. Sometimes, Member States even upgraded their domestic protection standards to meet the EU level requirement (cf. Odysseus 2006; Odysseus 2007; Thielemann and El-Enany 2011).

To address this puzzle, I studied the decision-making processes and the implementation of three core directives, the asylum procedures directive, the reception conditions directive and the qualification directive, which were all passed during the first phase of the CEAS (2000-2005). Methodologically, the book combines before and after analysis (George and Bennett 2004: 166-167), comparing the status quo ante in Member States with the results of national transposition of EU directives, and ‘process-tracing’ (Beach and Brun Pedersen 2013; Rohlfing 2012: 150-167) of EU level negotiations. The data used comprises EU documents, reports from NGOs, the Commission, UNHCR, the press, as well as almost forty semi-structured expert interviews conducted with individuals involved in the negotiations.  

Strong and informed positions as a key power differential in EU negotiations

Drawing on the on the so-called ‘misfit and regulatory competition’ literature (Héritier 1996, 1997; Börzel 2002; Eichener 1992, 1997) on EU environmental policies, the book suggests that most of the time EU Member States do not want to change their policies through EU law, but try to keep them. Thus, they want to influence EU legislation by uploading their domestic standard to the EU level. While all Member States want to do so, some are generally more successful than others. Strong regulators, i.e. Member States with a long-standing tradition in receiving refugees and asylum-seekers, were much more effective in influencing EU legislation than weak regulators, Member States that could not draw upon this experience during EU negotiations.

By showing that strong regulators adopt positions that are better informed than those of weak regulators, I further develops the ‘misfit and regulatory competition’ argument and underlines why strong regulators are more effective in negotiations than weak regulators. Strong regulators have effectively working administrations which are capable of processing large numbers of asylum applications and use them to develop a dense regulatory framework, including tried and tested legislation and precedence. This helps them to advance informed positions when it comes to negotiations at the EU level. Being faced with large numbers of applications, the issue is of high salience for these Member States and hence they adopt stronger positions, which their capable administrations defend vigorously at the EU level. Figure 1 shows that for the time frame under investigation (after 2000), Germany, the United Kingdom, the Netherlands, Sweden and France are strong regulators, while Portugal, Italy and Greece are weak regulators. Weak regulators are likely to be overwhelmed with large numbers of asylum applications. Medium regulators such as Finland and Luxembourg, in particular, are likely to be able to cope in case of an increase of applications, given their high levels of administrative capacity.  

Figure: Strong and weak regulators in asylum policies in the year 2000

Legend: AT= Austria, BE= Belgium, DE= Germany, EL= Greece, ES=Spain, FI=Finland, FR= France, IE=Ireland, IT= Italy, LU=Luxembourg, NL=Netherlands, PT= Portugal, SE=Sweden, UK= United Kingdom. Sources:  Eurostat 2015; Kaufmann, Kraay and Mastruzzi 2010, my depiction.

Lack of administrative capacity as a key explanation for low levels of compliance

Having been able to upload their policies to the EU level, strong regulators face little misfit between EU policies and their national policies in the implementation phase. Their policies are hence compliant ex-ante with the standard laid down in the EU directives. Interestingly, this applies to both restrictive and liberal strong regulators. Under minimum standards being adopted, liberal Member States were able to maintain their more liberal standards, while restrictive strong regulators used all their power to upload their restrictive standard to the EU level with the aim of being able to keep this standard in the implementation process. Weak regulators were consistently unable to influence EU legislation and hence face severe misfit in the implementation phase. It is particularly this misfit which explains their weak implementation record: as weak regulators had to build asylum systems from scratch subsequent to EU legislation, they were overwhelmed and thus non-compliant with EU law.

How to reform the Common European Asylum System?

The EU’s weak and uncoordinated response to the inflow of refugees since 2015 has demonstrated that the CEAS is in severe crisis. The lack of mutual trust among Member States and the beggar-thy-neighbour approach followed by them are at the heart of this crisis.

Strong regulators in Northern Europe have often conceived of EU asylum policies as a means to divert refugee flows towards Southern European Member States which are not usually key destinations for asylum-seekers. The Dublin Regulation is meant to shift most of the responsibility to Member States at EU’s external border. The asylum directives under investigation here aimed to prevent secondary movements by establishing similar standards in all Member States. This implied introducing asylum systems in weak regulatory states for the first time in their history.

The increased inflow of refugees in 2015 has highlighted that such responsibility-shifting was anything but sustainable. Border Member States were not ready to turn into top recipients of asylum-seekers while at the same time having to introduce asylum systems from scratch. Thus, the crisis has highlighted that it is essential to take Member States’ diverse capacities into account. Given their weak administrative capacities, border countries need operational and technical support in the assessment of asylum claims. The provision of expertise on the ground as is currently done by the European Asylum Support Office (EASO) is a step into the right direction. The idea to introduce a capacity-based distribution key for asylum-seekers as was done in the EU relocation scheme also meets these concerns. Yet, it has become unlikely that such a distribution key will be used as a permanent scheme, as Member States are still highly reluctant to transfer any powers concerning the distribution of asylum-seekers to the EU. Without political will to transfer powers to the EU level, however, a Common European Asylum System that really deserves this label will not materialise.