Steve Peers recently discussed the legal aspects of the refugee crisis, focusing on international law. This post will examine the relocation of asylum-seekers within the EU, a topic that has sparked considerable debate. The EU recently passed a second decision on this matter, facing opposition from several member states. This decision follows an earlier one from September. Both are temporary measures, effective for two years, but there is a proposal for a permanent system. This analysis will cover the content of these decisions, their legality (considering some member states are threatening legal action), and the merits of relocating asylum-seekers.

Content of the Decisions

Before diving in, it’s important to clarify terminology. Some reports use “resettlement,” but the EU uses “relocation” when discussing moving individuals between member states. “Resettlement” has a specific meaning in EU and international law.

While “asylum-seekers” is technically the most accurate term, as these decisions only apply to those who have applied but haven’t received a decision yet, it’s important to note that the process will likely determine many of these individuals are refugees or require protection. Using “migrants” could be misleading, as it sometimes implies a lack of need for protection.

The First Decision

The first decision focuses on relocating asylum-seekers from Italy and Greece, specifically those who applied for asylum in either country and fall under those countries’ responsibility according to the Dublin rules. This usually applies to those crossing borders unauthorized. The Dublin rules, however, would still apply if another member state were prioritized (for reasons like close family ties).

The plan aims to relocate 24,000 people from Italy and 16,000 from Greece, a total of 40,000. These individuals will be transferred to other member states based on those states’ voluntary commitments. However, the member states couldn’t agree on offering enough spaces, falling short of the 40,000 target.

This relocation process is selective, targeting nationalities with an asylum application success rate exceeding 75%, based on Eurostat data. Currently, this includes Syrians, Iraqis, and Eritreans.

Italy and Greece are responsible for selecting asylum-seekers, prioritizing “vulnerable” individuals as defined by the EU. However, the receiving member states can express a preference for individuals with specific skills or characteristics, such as language proficiency or family ties, which might ease integration. This preference isn’t binding – the receiving states must accept the nominated asylum-seekers unless there are valid security concerns, or serious reasons for exclusion.

The decision mandates fingerprinting, a requirement under existing EU law, though not always enforced. The process should typically take no more than two months after the receiving member state indicates their capacity. The receiving state will then handle the asylum application, and after relocation, the individuals generally can’t move to other member states under the Dublin rules. The receiving member state is responsible for taking them back if they do move. To prevent movement, member states might limit appeals against transfers, impose reporting obligations, offer benefits in kind, issue entry bans, and refrain from issuing travel documents for visiting other countries. The EU Commission has proposed that relocated individuals should be allowed to work immediately, as an incentive for them to stay, rather than waiting nine months, the maximum period under the EU directive.

Asylum-seekers are not required to consent to relocation and cannot request it. They must be informed about the process, and objections are only possible if there are significant human rights concerns in the destination country. While relocation itself and the chosen member state are not voluntary, individuals remaining in Italy and Greece might be dissatisfied. Currently, there’s no mechanism for them to contest being left behind, though “vulnerable” individuals could potentially raise concerns if not prioritized, as legally obligated. Asylum-seekers can insist on their immediate family members (spouse/partner, unmarried minor children, or parents of minors) already in the EU joining them in the receiving member state.

Other member states are obligated to assist Italy and Greece, while the latter are required to establish and implement an asylum action plan, or risk having the decision suspended by the Commission. Relocating member states receive €6000 per person from the EU budget. This decision is valid until September 17, 2017, and covers asylum-seekers arriving after August 15, 2015.

The Second Decision

The second decision builds upon the first, but with significant differences. It involves relocating 120,000 asylum-seekers on top of the 40,000 from the first decision, which remains valid.

Unlike the voluntary commitments of the first decision, the second sets specific numbers for each member state, leading to opposition from Slovakia, Romania, Hungary, and the Czech Republic.

The distribution has also changed. The second decision aims to relocate 50,400 from Greece and 15,600 from Italy, reflecting the increased influx into Greece. The remaining 54,000 were intended for relocation from Hungary, but the country refused to be labelled a “frontline state.” This leaves 54,000 on hold, potentially to be relocated from Italy and Greece under the same rules in a year, or under a different framework depending on the situation, subject to Council approval.

Member states can request a temporary, Council-authorized delay of 30% of their intake in “exceptional circumstances,” if justified and compatible with EU values like human rights and non-discrimination. This could include a sudden, overwhelming influx, or a high likelihood of such an event.

The second decision strengthens the language regarding preventing asylum-seekers from moving to other member states. Member states are permitted to adjust social benefits and remedies and encouraged to detain individuals according to the Returns Directive if no other means of preventing movement are available.

Financially, Italy and Greece will each receive €500 per person for associated costs, in addition to the €6000 lump sum per person provided to the receiving member state. This decision, also in effect for two years, applies to individuals arriving in Italy or Greece since March 2015, not just from mid-August onward.

Legality of the Decisions

Both decisions rely on Article 78(3) of the TFEU, a revised “emergency power” concerning immigration, introduced in 1993 but unused until recently.

Article 78(3) states:

In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

This should be considered within the context of Article 78(1):

a common policy on asylum,** subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of_non_-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

Furthermore, Article 78(2) grants the EU power to establish “a common European asylum system,” outlining seven areas where it can act through standard legislative procedures. (Notably, the proposed permanent relocation system falls under Article 78(2), not 78(3), resulting in different legal considerations).

Several aspects of Article 78(3) are clear: it requires a Commission proposal (which existed for both decisions), the Council votes by qualified majority, and the European Parliament is only consulted, unlike its usual joint decision-making power regarding asylum legislation. Due to its placement within Article 78, it’s implied that Article 78(3) measures can only pertain to asylum.

The strongest legal challenge against the second decision is procedural. The Court of Justice of the European Union (CJEU) consistently maintains that if the European Parliament must be consulted on a measure, reconsultation is necessary if essential elements are altered. Removing Hungary from the frontline states list constitutes such a change. Counterarguments might suggest no obligation or a less strict obligation to reconsult in “emergency” situations. However, even if this argument succeeds, it wouldn’t achieve much – the Council would only need to reconsult the European Parliament, and the CJEU might keep the decision active in the meantime.

Regarding the substance of the emergency measures power, it must align with Article 78(1), contributing to a “common” policy, upholding “non-refoulement,” and adhering to the Geneva Convention. Both decisions meet these criteria; other suggestions like closing external borders or returning individuals to unsafe countries wouldn’t.

Several terms in Article 78(3) need clarification: “emergency situation,” “sudden inflow,” “provisional measure,” and “benefit” for member states. An “emergency” implies a situation difficult for member states to manage, which the current crisis undoubtedly is. While some argue that the years-long buildup, starting with the Syrian Civil War in 2011, disqualifies the influx as “sudden,” the significant increase in overall numbers in 2015 qualifies as “sudden,” even if it wasn’t immediate.

It’s up to the member states to decide if they’ll “benefit” from the measures, necessitating Hungary’s removal from the beneficiaries list. A different, potentially preferable policy doesn’t negate the benefit for the member states involved. It’s evident that Italy and Greece will benefit from having fewer asylum-seekers.

There’s a strong argument that the measures can only benefit member states, not, for instance, Serbia. However, this is irrelevant, as the decisions only address relocation between member states. The impact on third states (e.g., fewer people traveling through Serbia) isn’t enough to violate this rule.

This leaves defining “provisional measures.” “Provisional” implies a time constraint. With the six-month limit removed in the Treaty of Lisbon, measures can last longer. While two years might be contestable, a year, during which a permanent system might be agreed upon, is likely acceptable. Thus, a successful challenge might shorten the second decision’s duration, not annul it entirely. Repeatedly renewing or replacing a provisional measure with a similar one would violate its nature, but that point hasn’t been reached.

What “measures” are allowed? Can they amend existing legislation? This is relevant because both decisions, like any relocation system, deviate from the Dublin rules, circumventing the European Parliament’s involvement. While initially it seemed emergency measures couldn’t deviate from existing EU law, this appears incorrect. Since the Treaty outlines a “common” asylum policy, the power to adopt emergency measures would be meaningless if it couldn’t amend current legislation.

Can the EU establish asylum-seeker quotas? Quotas are prohibited under Article 79(5) TFEU for work-seekers, but these limits are specific to that article. The Treaty chose to regulate asylum (including reception conditions and refugee status, which relate to employment) under Article 78. There’s no automatic right to work for asylum-seekers under EU law unless they’ve waited nine months, though member states can be more generous. Some might be too young, have family responsibilities, or experience illness, preventing them from seeking work. Therefore, asylum-seekers aren’t covered by Article 79. The Treaty drafters were aware of relocation quotas, so they would have explicitly ruled them out in Article 78(3) if they wished. Article 79(5) has an opposite effect.

Should Article 78(3) be narrowly interpreted? The Treaty uses broad language, and Article 80 TFEU broadly references solidarity and burden-sharing, “including,” but not limited to, financial support. Unlike provisions emphasizing limited EU powers, such as health or education, Article 78 refers to a “common” or “uniform” policy. The Treaty drafters already limited the EU’s immigration policy, and within the same section, specific rules address competence and voting regarding border control, civil law, police cooperation, and criminal law. Notably, no comparable limitations exist for EU asylum powers. While arguments can be made for such limitations, they don’t currently exist.

The existence of these powers doesn’t necessitate their use. This raises the question of whether relocation is beneficial and if enforcing quotas on reluctant states is wise, even if legal.

Appraising the Relocation Policy

The relocation policy’s objectives, promoting solidarity and burden-sharing, are valid, reflecting Article 80 TFEU and the Geneva Convention. The influx into Greece and Italy is too much for them to handle alone, even though some individuals have moved on to other member states. While solidarity can manifest as financial support or personnel, building facilities and integrating foreign personnel takes time.

The relocation decisions might not be sufficient. To claim the EU has done nothing is an exaggeration. While not completely alleviating the pressure on Italy and Greece, the decisions should provide some relief. Based on the second decision’s preamble, it should relieve 43% of the burden from asylum-seekers requiring protection (those with high application success rates) who arrived in July and August. This is less impressive considering it assumes relocation of the 54,000 on hold, which remains uncertain. The preamble refers to arrivals over two months, while the relocation is spread over two years. Even with the first decision, the percentage of relocated asylum-seekers from priority countries arriving in Italy and Greece over the next two years will be significantly lower than 43%. The increased focus on fingerprinting might even lead to Italy and Greece handling more applications from priority countries.

Considering those not covered by the decisions (those not from priority countries), the two decisions might be insufficient. This can be addressed through further decisions or the proposed permanent system. Reducing the number of asylum-seekers arriving at the EU’s borders, however, is crucial for the long-term management of this situation.

Regarding the specifics of the decisions, two issues stand out: the role of asylum-seekers and the implications of enforcing quotas on unwilling member states. Forcing asylum-seekers into unwanted destinations is problematic, as demonstrated by the Dublin system. Allowing asylum-seekers to express a non-binding preference, justifying their choice, would be beneficial. This increases the likelihood of them staying put and potentially easing integration, as they might choose locations with existing social ties. However, accommodating everyone’s preferences might be impossible.

Without considering preferences, member states resort to penalizing secondary movements. While the Dublin system hasn’t effectively kept asylum-seekers in their assigned state, it’s more effective when fingerprinting is used, which is a requirement for relocation under these decisions. While the decisions rightly state that individuals moving elsewhere must be returned (as per the Dublin Regulation), the second decision’s preamble incorrectly claims they could be detained under the Returns Directive. Since that directive doesn’t apply to asylum-seekers (see CJEU rulings in Kadzoev and Arslan), the narrower grounds for detention in the Dublin Regulation would apply if they reapply for asylum.

The specific sanctions and restrictions on benefits for those moving elsewhere, beyond limiting appeals, are unclear. The CJEU ruled in Cimade and GISTI that benefits must be provided even if individuals move to another member state (paid by that member state), until they’re returned under the Dublin rules. This is now reflected in the Dublin III Regulation. Allowing early work authorization for relocated individuals, as the Commission suggested, might be more effective.

Historically, burden-sharing relied on persuasion, not legal obligation. Relocation will be challenging if uncooperative member states refuse. It’s unclear if they’ll suspend their commitments under the first decision. Hungary hadn’t made any such commitments. While the Commission can initiate infringement procedures for non-compliance, this takes time, and the member states involved might choose to pay fines instead of participating.

While the resistant member states’ arguments against burden-sharing aren’t very convincing, alternative solutions should have been explored. The initial suggestion of financial contributions to offset the costs for overburdened states was rejected, mistakenly perceived as a penalty rather than a form of burden-sharing. Offering assistance to neighboring countries hosting Syrian, Iraqi, and Eritrean refugees, either through increased resettlement or financial contributions (reducing push factors) could have indirectly eased the burden on Greece and Italy.

Finally, how much can the dissenting (or other) member states reduce their obligations under the decisions? The second allows for temporary intake reductions with Council approval, given valid reasons, particularly concerning reception capacity. Due to the rule’s exceptional nature, it’s unlikely other reasons will suffice; paranoia is unacceptable. The request’s justification must align with EU values, excluding Islamophobia.

Barnard & Peers: chapter 26

Photo credit: Istvan Zsiros