JURIST Guest Columnist Larry Eaker, former Professor at the American University of Paris, discusses the European Union’s Immigration and Asylum Policy …

“The challenge to the European project today is existential. The refugee crisis has brought that to light. What was unimaginable before now becomes imaginable, namely the disintegration of the European project.”
Frans Timmermans, European Commission First Vice-President, before the Friends of Europe (22 October 2015)

According to recent figures released by the UN High Commissioner for Refugees (UNHCR), Europe is expected to receive in 2015 over 800,000 migrants crossing the Mediterranean Sea, mostly aboard rickety ships and rafts. Of this total, Greece—after already having been torn asunder by the continuing debt and euro crisis—will have to initially provide for over 670,000 of these migrants. Tragically, as of September 2015, over 3,400 of these struggling and panicked people have either drowned or gone missing at sea. UNHCR statistics concerning this unprecedented flow of migrants to Europe indicate that most arrive from war-torn nations such as Syria, Afghanistan, Iraq and Eritrea. News reports continue to show this downtrodden mass making its way through what is referred to as the Western Balkans Route in order to enter the EU via Hungary and Croatia. While the vast majority of these migrants are merely transitory, with the intention to eventually resettle in Germany and other northern EU Member States, several of the Eastern European Members States have admitted to being overwhelmed by this flow and the associated humanitarian and social needs. As a result, Hungary and Slovenia felt compelled to temporarily impose border controls at their EU internal borders. More surprisingly, both Austria and Germany have now imposed internal border controls even though these nations had initially expressed a more welcoming position to the oncoming migrants than their neighbors to the south. While the EU Commission has recently validated the right of Austria and Germany to reintroduce these border controls—under public security exceptions to the Schengen Borders Code—the about-face by these Member States has now sent a sharp signal to the EU at large that this is indeed a very serious situation.

Many of these EU nations seem determined to push the migrants along—if they cannot keep them out altogether—in a not so well-concealed effort to avoid being designated as the “responsible state” under EU law for determining the grant or denial of international protection or return to a safe country pursuant to international law obligations. While this game of political and legal “hot potato” somehow made it through the summer (albeit with a tremendous international uproar), it seems clear that an effective regulatory and legal structure is going to have to be rapidly imposed in order to avoid a humanitarian disaster of biblical proportions with the onset of the European winter. But the question remains—does the EU enjoy sufficient legal competence to impose an orderly and fair immigration and asylum system under the circumstance? If not, are the individual Member States willing to continue to transfer sovereign legal powers in these fields to EU institutions? And, if not, will this pose an existential threat to the overall EU project as mentioned by Commissioner Timmermans?

The EU Common Asylum Policy—Fatally Flawed in Face of Migration Crises
In accordance with the EU’s so-called Area of Freedom, Security and Justice, as specified in Part 3, Title V of the Treaty for the Functioning of the European Union (TFEU), the EU enjoys the competence to ensure the absence of internal border controls on persons and to frame a common policy on asylum, immigration and external border controls. This common policy is to be based on solidarity between Member States—including its financial implications—and is to be fair towards third-country nationals. Article 78(1) TFEU then specifies a common EU policy on asylum, subsidiary protection and temporary protection, including the principle of non-refoulement in line with the provisions of the 1951 Geneva Refugees Convention and its 1967 Protocol. But this is where things get sticky. While the EU has been successful in adopting a common policy on free movement of persons, immigration and asylum, with differentiated integration of such policy by the UK, Ireland and Denmark via protocols, the fact remains that this so-called “common” policy suffers from a fatal flaw. Unlike a true, federal nation-state such as the US (with exclusive power over such issues exercised by a central, federal government paying the bills on a collective basis), the agreed-to EU common immigration and asylum rules and procedures are left to the individual Member States to implement—along with most of the costs incurred in applying these EU rules. Thus, those Member States such as Greece and Italy that are the initial EU entry points for such mass immigration as at present are completely overwhelmed. And, to make matters even worse, these Member States then suffer another body blow under the EU’s now famous Dublin Regulation III [PDF] which usually requires the entry state to assume final responsibility for handling the single application for international protection, including the right of other Member States to return migrants to these entry states.

The EU in Emergency Mode—Attempting to Ameliorate the Implementation of the Common Policy
Faced with this emergency situation, the EU has attempted to ameliorate the current Common European Asylum System (CEAS) by adoption in May 2015 of the European Agenda on Migration, which calls for a more comprehensive approach to migration management. A number of implementing measures have been subsequently agreed to, including, inter alia:
—adoption of two emergency schemes to relocate 160,000 people in clear need of international protection from the Member States most affected to other Member States;
—deployment to designated “hotspots” [PDF] of EU Migration Management Support Teams, including augmented numbers of FRONTEX officials;
— implementation of the Commission Action Plan on Return [PDF] to better develop an integrated system of return management for those migrants not qualified for international protection, including the strengthening of the Eurodac fingerprinting/identification system;
— urging further Member State support (both financial and in-kind) for nations calling for assistance under the EU Civil Protection Mechanism, which Serbia, Slovenia and Croatia [PDF] have done in light of the migrant crisis; and
— increasing EU financing earmarked for this crisis (to €9.2 billion for 2015/16) and calling for matching Member State contributions.

While all this EU legislating is well and good, the stumbling block remains the fact that all this effort is subject to individual Member State effective, good faith implementation. And it is on this point that the CEAS fails—and, it must be said in light of recent performance, to a disturbing degree.

There is, however, a small ray of sunshine on the horizon for both the refugees and true believers in the European project (which we can safely include Timmermans amongst). And that is the European Commission in its role as the guardian of the treaties and enforcer of EU law, along with the European Court of Justice (ECJ). The Commission has recently stepped up infringement actions against Member States for alleged abuses of the Common Immigration and Asylum Policy. Since August, the Commission has sent administrative letters to five Member States for violations concerning the Eurodac Regulation on fingerprinting and ten complaints concerning the correct implementation of the Returns Directive. In addition, the Commission has recently announced the adoption of 40 infringement decisions against several Member States for their failure to transpose into national law the Asylum Procedures Directive, Reception Conditions Directive, and the Qualification Directive, and against Greece concerning “serious deficiencies in the Greek asylum system.” The continued failure to follow EU law in these matters could result in a referral of the cases to the ECJ (Article 258 TFEU), with the possibility of hefty fines being imposed upon the recalcitrant Member State (Article 260 TFEU).

The EU’s Regional and International Human Rights Obligations
The EU and its 28 Member States are, ultimately, subject to a higher authority than their own highest court ruling in matters concerning human rights law issues on the European continent. As members of the European Convention on Human Rights [PDF] (ECHR) they are individually bound to protect those within their boundaries from violations of the listed human rights. Failure to do such can result in the filing of individual petitions for relief to the European Court of Human Rights (ECtHR) and the obligation to follow the final decisions of the court. In this respect, it is interesting to note that the ECtHR, in its MSS v. Belgium & Greece decision, ruled in 2011 that the involuntary return of an Afghan migrant to Greece caused him to suffer degrading treatment in light of the deficiencies in the Greek asylum system and detention conditions. Furthermore, the ECJ itself then cited this ECtHR decision in the 2011 NS Case in justifying its refusal to permit the return to Greece by the United Kingdom of five asylum seekers.

Finally, 27 EU Member States are parties to Protocol I to the UN ICCPR [PDF] which grants to those on their respective territories the right to file complaints with the UN’s 18-member Human Rights Committee. Although it would be expected that migrants to the EU who claim human rights abuses stemming from their asylum attempts would pursue remedies before European courts (i.e., the ECJ and ECtHR), the EU and Member States must remain cognizant of the protections afforded migrants under the ICCPR—especially in light of the recent ruling by the UN Human Rights Committee strongly condemning Australia for human rights abuses inherent in its asylum procedures.

The Path Forward—Return to National Borders or Further Federalization?
As in past EU crises, this supranational organization is faced with the choice of leaving this vital, transnational matter to the individual Member States exercise of sovereignty (similar to defense issues) or to further centralize in EU hands the making of EU law and implementation of it (like the move to the euro currency). But the control over immigration and asylum is proving to be an even more divisive issue than defense or money issues. While it makes sense for a union of states to federalize these legal powers (similar to the US model), it has to be remembered that the word “federal” in the European context is not only considered by British so-called “Europhobes” to be the unspeakable “F word.” Anti-EU and extreme nationalist parties are gaining strength in Europe. But who knows? The extent of this crisis may convince the majority of voters in the EU that the best solution is to further solidify “federal,” EU legal control over immigration and asylum issues.

Larry Eaker is a former professor at the American University of Paris and Boston University. In France, Eaker has served as a legal consultant to the OECD on international environmental law matters and worked with various French law firms on international law cases. His teaching areas include public international law and international business law subjects.

Suggested citation: Larry Eaker, The EU’s Common Immigration & Asylum Policy—Drowning Along with the Refugees?, JURIST – Academic/Commentary, Nov. 18, 2015, http://jurist.org/academic/2015/11/larry-eaker-immigration-policy.php.