Will the Syrian crisis (at least!) trigger a true EU “common” migration policy ?

by Isabella MERCONE (FREE Group Trainee)

The ‘Syrian refugee crisis’ or ‘Syrian humanitarian crisis’, originated by a civil war in 2011, has been going on for more than 4 years now, causing millions of people in need of protection to flee from Syria to neighbouring countries (Jordan, Lebanon, Turkey, Iraq, Egypt), in seek of safety. Moreover, the situation has aggravated in the last year, after the establishment of the ISIS State between Syria and Iraq. [1] Due to its gravity, the issue is at the moment in the spotlight of media and public opinion. Concerns about the issue has already been expressed by all European institutions.[2]

THE EUROPEAN PARLIAMENT

Notably, in a resolution adopted already in the last legislature ( October 2013), the European Parliament was already calling for ‘safe entry and fair asylum procedures’, ‘temporary admission to the EU’, and resettlement as ‘an essential tool to address acute needs’, reiterating the ‘need for more solidarity with member states facing particular pressure to receive refugees.’
Moreover, the resolution encouraged EU countries ‘to make full use of money to be made available from the Asylum and Migration Fund and the Preparatory Action to “Enable the resettlement of refugees during emergency situations”.

THE EUROPEAN COMMISSION

In a recent decision , the European Commission has underlined the importance of ‘sharing responsibility between Member States and strengthening cooperation with third countries’, and suggested that the Union Actions should ‘focus on EU-wide measures promoting the consolidation of the CEAS, including its possible deepening, promotion of resettlement and transfer, and capacity building and strengthening of asylum systems of third countries’.
However, in fact not much has been so far put in practice by EU institutions to respond to Syrian refugee crisis, especially in respect with the support to third countries most affected by the flow. Nowadays, with 3,9 million Syrians refugees displaced among Turkey, Lebanon, Jordan, Iraq and Egypt[3], the European Union has to take action and adopt a real common EU approach to respond to Syrian refugee crisis. In order to do so, it needs:

  • A regulation that establishes a strengthened common asylum and migration system;
  • Adequate funding to implement such common actions to respond to the emergency.

The “Asylum, Migration and Integration Fund” (AMIF)

The AMIF (Asylum, Migration and Integration Fund) is the EU Funding Programme concerning asylum and migration for the period 2014-2020. It was established with Regulation (EU) No 516/2014[4]. With a total budget of EUR 3.137 billion for the whole period (2014-2020), it is aimed at ‘promoting the efficient management of migration flows’ and at the ‘implementation, strenghtening and development of a common EU approach to asylum and migration’.[5] It replaces the three separate funding programmes created for the period 2007-2013 (ERF, European Refugee Fund; EIF, European Fund for the Integration of third-country nationals; RF, European Return Fund), in the attempt to create a common financial framework for EU asylum, immigration and external border control policies.

Should art. 80 on solidarity complement the legal basis ?

EU Member States cooperation in the policy area of migration and asylum has been developing in the last twenty years, starting from the Schengen intergovernmental cooperation paving the way to the suppression of internal border controls. The 1999 Amsterdam Treaty embodied the former intergovernamental Schengen cooperation by splitting it in a new title of the Treaty establishing the European Community (TEC) dedicated to “visas, asylum, immigration and other policies related to free movement of persons” and by dealing with security related policies in the so called “third pillar” (police and judicial cooperation in crimial matters). 

Ten years later the Lisbon Treaty has progressively overcome this dual regime by  merging all these policies in the Title V TFEU (Treaty on the Functioning of the EU), which deals with freedom, security and justice, and which explicitly calls for the adoption of a common policy on asylum, immigration and external borders, based on solidarity between EU countries and fairness to non-EU nationals (article 67(2)TFEU). In particular, article 80 TFEU (Principle of solidarity) specifically states that, in the implementation of this EU policy on migration and asylum, Member States should respect the principle of “solidarity and fair sharing of responsibility”, ‘including its financial implications’.  With the entry into force of the Lisbon Treaty, entered into force also the EU Charter of Fundamental Rights whose articles 18 and 19 strengthen the right of asylum (also covered by art. 78 TFEU) and the principle of non-refoulement [6] at level of  EU primary law. This has been the basic legal framework in which the European Parliament and the Council adopted the Regulation (EU) 516/2014[7], establishing the Asylum, Migration and Integration Fund (AMIF).[8] However it is worth noting that Regulation formal legal basis  are articles 78(2) and 79(2) and (4) TFEU but the Council of  European Union did’nt accept the EP proposal to add also article 80 TFEU as complementary legal basis.  This divergence of view between the three institutions is clearly stressed in the declarations adopted at the time of the EP vote [9] In fact, the EP had advocated for the explicit inclusion of article 80 TFEU in the legal basis of the regulation, but finally surrendered to national parliaments will and adopted the final text without any reference to this article, in order to allow the Fund to start functioning.
Finally, concerning States that are allowed to opt-out in Title V related issues, all EU Member States, with the exception of Denmark, are part in the AMIF.

AMIF GENERAL AND SPECIFIC OBJECTIVES

The AMIF general aim is to finance national and transnational actions in the efficient management of migration flows and in the implementation, strengthening and development of the common policy on asylum, subsidiary protection and temporary protection and the common immigration policy.[10]
Within this general objective, the Fund has four, more specific objectives, which are:

  • Strengthening and developing the establishment of the Common European Asylum System (CEAS);
  • Supporting legal migration to the Member States in accordance with their economic and social needs and promoting the effective integration of third-country nationals;
  • Enhancing fair and effective return strategies with a view to countering illegal immigration;
  • Increasing solidarity and responsibility sharing between the Member States, with particular concern for those most affected by migration and asylum flows.[11]

METHODS OF IMPLEMENTATION

The aforementioned objectives are pursued with AMIF financial resources, through the adoption of three different methods of implementation[12]:
1) shared management (Member States ask for AMIF resources for national projects);
2) direct management (the European Commission receive resources for the implementation of EU common actions);
3) indirect management (other structures like the International Centre for Migration Policy Development receive a specific task and the resources to realize it).

For the 2014-2020 period, most of the AMIF resources (88% of €3.137 billion) have so far been allocated under shared management, through the adoption of multiannual national programmes. This is due to the fact that States still prefer to adopt national projects rather than “leave the stage” to the Commission.
However, the European Commission has direct access to part of the Fund, for the support to:
– actions of particular interest to the EU (‘Union actions’)[13];
– actions concerning situations of emergency (‘emergency assistance’ actions, addressing urgent and specific needs[14]);
-the European Migration Network (Network of nationals contact points designated by Member States aimed at providing up-to-date information on migration and asylum topics)[15];
– other actions addressed as ‘technical assistance’[16].

ACTIONS WHICH  CAN BE FOUNDED

In the past period (2007-2013), the three funding programmes ERF, EIF and RF principally financed national projects; these included a large variety of different activities, from action to support asylum-seekers (e.g. Estonian project for the improvement of reception conditions) to initiatives for integration of migrants (e.g. the Italian project for language education and intercultural mediation for newly arrived migrants) and voluntary assisted return and reintegration programmes (Ireland).

For the period 2014-2020, 22 Multiannual National Programmes have just been approved by the European Commission and other 36 are waiting for approval by the end of this year.[17]
On the other hand, 11% of the AMIF has been committed to activities of the European Commission. For the period 2014-2015, it has been granted a budget of € 50 million, which shall be divided among ‘Union actions’, emergency assistance, European Migration Network and technical assistance.
As concerns the Syrian refugee crisis, on 19th February 2015 the Commission put €13.7 million in emergency funding at Italy’s disposal to support the country in managing the high influx of asylum seekers.[18]

THE AMIF AND THE SYRIAN REFUGEE CRISIS

According to the preamble of the AMIF Regulation (EU) 516/2014[19] and to articles 77-80 TFEU, specific attention should be paid in the implementation of the common asylum and migration policy to the principle of solidarity between EU countries. In addition, article 3 of the AMIF regulation specifically includes in its objectives ‘Increasing solidarity and responsibility-sharing between the Member States, with particular concern for those most affected by migration and asylum flows.
However, when it is time to move from principles to practice, Member States have so far always been reluctant to assume a real shared-responsibility policy, and that is the reason why most of AMIF funds (88%) has been allocated in shared management for national projects.
Nonetheless, provided that all indicators suggest that the number of Syrians arriving in Europe in 2015 will still be high, and the over-sized amount of Syrian refugees fleeing to neighbouring tiny countries like Jordan and Lebanon will also continue to raise, it is high advisable that EU moves towards a real common policy for immigration and asylum based on the principle of shared responsibility.

PLAN OF ACTION

Proposing a plan of action to be taken in the immediate future to respond to the Syrian crisis, the first step would be a full implementation of the Dublin Regulation[20], in particular through the application of articles 8-11 and 16-17[21]; another important move to support countries under high migratory pressure like Greece and Italy would be the establishment of a ‘pilot relocation programme’, as imagined by EASO and supported by UNHCR[22]; finally, as a durable solution and external solidarity measure, the European Union should invest in a joint EU Resettlement Programme.

FOCUS ON: THE JOINT EU RESETTLEMENT PROGRAMME AND THE AMIF

Resettlement has recently been regarded as a potential solution to address the Syrian crisis.
UNHCR defines resettlement as ‘the selection and transfer of refugees from a State in which they have sought protection to a third State that has agreed to admit them ‐ as refugees ‐ with permanent residence status’.[23]

LEGAL BASIS

As concerns the EU common asylum policy, in March 2012 the EU adopted a Decision aimed at the establishment of a Joint EU resettlement programme.
In the context of the AMIF, €360 million have been put at disposal of Member States for resettlement programmes. [24] In addition, the AMIF regulation establishes that MS are provided a lump sum of € 6,000 per resettled person and €10,000 for each resettled refugee falling into one of the following categories:
– Persons from a country or region designated for the implementation of a Regional Protection Program (Annex III of the AMIF lists the common Union resettlement priorities);
– Women and children at risk;
– Unaccompanied minors;
– Persons having medical needs that can be addressed only through resettlement;
– Persons in need of emergency resettlement or urgent resettlement for legal or physical protection needs, including victims of violence or torture. [25]

According to the European Resettlement Network, ‘Funding remains the primary mechanism through which the EU incentivizes Member States to engage in resettlement, and encourages existing resettlement countries to increase their quotas. Such funding has also become a vital tool for developing a European policy framework for resettlement.’ [26]
However, having a look at EU resettlement quotas in 2014[27] , we can see that, in fact, only 16 MS are taking part in the programme [28] and numbers of resettled persons are incredibly low, almost ridiculous, with a total around 5,500 persons, which is nothing, if we think about the 960,000 refugees in need of resettlement today.
The Justice and Home Affairs Council recognized in its Conclusions of 10 October 2014 that ‘EU Members States should expand their resettlement programmes to “credible” numbers’ that can make a difference in any refugee context[29]  and UNHCR renewed its call to EU countries to ‘make larger commitments to receive refugees through sustainable and strategic use of resettlement programmes’. [30]
In the LIBE Committee of 26th February 2015, in occasion of the debriefing on the second Relocation and Resettlement Forum of 25 November 2014 by Laurent Muschel, several MEPs have also insisted on the necessity of a stronger commitment of MS in the joint resettlement programme.

Arguably, apart from the 2012 Decision, there is no detailed regulation of the joint resettlement programme yet. Positively, some initiatives are starting to address the issue[31], and the European Commission should finally present her proposal in May 2015.
A very good, almost ideal proposal would certainly be the establishment of the obligation for every Member State to take part into the resettlement programme, without any possibility of opt-out.
Possibly, the Joint resettlement programme shall be put under direct management of the Commission, and be therefore included in the Union actions of the Commission. This would certainly mean the requirement of a large amount of resources.
This could mean that a re-thinking of AMIF funds allocation might be necessary for the period 2015-2020, because more resources should be destined to the Commission for Union actions and emergency assistance, to provide a joint response to the Syrian emergency.

SOME MORE DOUBTS ABOUT AMIF….

Two observations more:

NEED OF A GENERAL REVISION OF THE FUND ALLOCATION

At first glance, 3,137 million Euro might seem to be a huge sum, which could solve any asylum and migration issue[32]; however, we could easily change our mind by having a look at the detailed allocation of the resources between the Commission and the Member States (see above, methods of implementation). Besides, some other doubts arise if we compare, for instance, the money that has been destined to the “essential” Union resettlement programme (€360 million) with the much higher sum (€800 million) that has already been destined to the EU ‘Smart Borders’ project, which actually has no legislative basis yet and has recently been object of wide debate in the EP.[33]

CALL FOR MORE TRANSPARENCY

With respect to the period 2007-2013, there has been no formal evaluation on what has been achieved by the usage of the ERF, EIF and RF; only a special report on the European Refugee Fund (ERF) and the European Integration Fund (EIF) was issued by the European Court of Auditors in 2012[34], which showed that ‘most of the projects audited by the Court gave positive results. However, the overall success of the ERF and the EIF could not be assessed due to lack of proper monitoring and evaluation systems. The effectiveness of the Funds, said the ECA, was hindered by a series of factors, such as: excessive administrative burden in comparison with the size of the budget; implementation delays at EU national level; insufficient coordination with other funds such as the European Social Fund.’[35]

As concern the AMIF, the first assessment is expected for June 2018, when an interim evaluation report on policy developments and evaluation reports prepared by MS on the implementation of their national programmes shall be submitted by the Commission to the EP, the Council, the European Economic and Social Committee and the Committee of the Regions.
So far, no national programme has been made public yet, only some drafts. Moreover, the involvement of the Parliament in the process of approval of the projects is limited[36].
As a result, there seems to be a lack of transparency and a violation of the democratic principle in the process of decision-making concerning the implementation of the allocation of the resources for asylum and migration policy. As correctly argued by the MEP Carlos Coelho in the LIBE committee of 24th March, we also wish that the Commission would soon publish the documents explaining the Multiannual National Programmes. Moreover, we wish the Commission would better absolve her role in the monitoring of the implementation of the Fund and, in doing so, fully respect the principle of transparency.

NOTES 

[1] A UNHCR release of 19th March reported 250 Syrian refugees crossed the border to Jordan every day last week [UNHCR, ‘Syria emergency: Fighting and despair triggers rise in the numbers fleeing Syria to Jordan’, 19th March 2015, available at:www.unhcr.org/emergency/5051e8cd6-550b150ac.html]
[2]See for instance European Union delegation to the United Nations, EU Commissioner Dimitris Avramopoulos calls in Geneva for more protection and admission possibilities for Syrian refugees’, 9 December 2014, Geneva, available at: http://eu-un.europa.eu/articles/en/article_15844_en.htm and Council of the European Union, ‘Council conclusions on Syria’, 3241st FOREIGN AFFAIRS Council meeting, Brussels, 27 May 2013, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137316.pdf
[3] UNHCR, ‘Syria Regional refugee response – Inter-agency Information Sharing Portal’, registering 3, 925,615 Syrian Refugees as of today, Wed. 24 March 2015. [http://data.unhcr.org/syrianrefugees/regional.php]
[4]REGULATION (EU) No 516/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (OJ L. 150, 20.5.2014, p.168-194), available at: http://ec.europa.eu/dgs/home-affairs/financing/fundings/pdf/overview/regulation_eu_no_5162014_of_the_european_parliament_and_of_the_council_en.pdf
[5] A. D’Alfonso, “Asylum, Migration and Integration Fund” (AMIF), European Parliament Research Service, Doc. PE 551.316, March 2015, page 1.
[6]Article 18 Charter of Fundamental Rights of the European Union (EU DOC 2000/C 364/01) states that: ‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 20 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community’.
[7] See note 1.
[8] See also the Regulation (EU) No 514/2014 of the EP and the Council, laying down general provisions on the AMIF and on the instrument for financial support for police cooperation, preventing and combating crime and crisis management [the so-called ‘Horizontal Regulation’].
[9] Statements by the European Parliament :Article 80 TFEU: The European Parliament, in the light of the need to adopt this Regulation in time for implementation of the Asylum, Migration and Integration Fund (‘the Fund’) from the beginning of 2014, in the interests of finding an agreement to that end, and in the light of the intransigence of the Council, has accepted the text of the Regulation as agreed above. Nevertheless, the European Parliament reiterates its view – which it has maintained throughout negotiations on this Regulation – that the correct legal basis for the Fund includes Article 80, second sentence, TFEU as a joint legal basis. This legal basis is designed to give effect to the principle of solidarity as expressed in Article 80, first sentence, TFEU. In particular, the Fund implements the principle of solidarity in its provisions on the transfer of applicants for and beneficiaries of international protection (Articles 7 & 18) and in its provisions on resettlement (Article 17). The European Parliament underlines the fact that the adoption of this Regulation is strictly without prejudice to the range of legal bases available to the co-legislator in the future, in particular with regard to Article 80 TFEU.
Relocation: With the aim of promoting relocation as a solidarity tool and improving the conditions pertaining to relocation, the European Parliament calls the European Asylum Support Office (EASO), in cooperation with the European Commission (EC), to develop a handbook and a methodology on relocation, following a mapping of relocation best practices in Member States, including internal organization systems and reception and integration conditions. In order to create an incentive for relocation and facilitate relocation operations for the participating Member States, the European Parliament calls also the EASO to provide expertise on relocation and coordinate, in cooperation with EC, an expert network on relocation, which could regularly meet for technical meetings on specific practical and legislative issues, as well as provide support on the use of the Asylum, Migration and Integration Fund for relocation. The European Parliament calls the EC to monitor and regularly report on the evolution and improvement of the asylum system in Member States beneficiating from relocation.

Statement by the Council: Article 80 TFEU. The Council underlines the importance of the principle of solidarity and fair sharing of responsibility which, in accordance with Article 80 TFEU, is to be given effect in Union acts adopted pursuant to the Chapter of the TFEU on policies on border checks, asylum and immigration. The Regulation establishing the Asylum and Migration Fund contains appropriate measures to give effect to the above principle. However, the Council reiterates its view that Article 80 TFEU does not constitute a legal basis within the meaning of EU law. Within the said Chapter, only Article 77(2) and (3), Article 78(2) and (3) and Article 79(2), (3) and (4) TFEU contain legal bases enabling the relevant EU institutions to adopt EU legal acts.

Statements by the Commission: Article 80 TFEU. The Commission, in a spirit of compromise and in order to ensure the immediate adoption of the proposal, supports the final text; however it notes that this is without prejudice to its right of initiative with regard to the choice of legal bases, in particular in reference to the future use of Article 80 TFEU.

European Migration Network (EMN):The Commission, in a spirit of compromise, supports the final text on Article 23 which ensures continued funding support to the activities of the European Migration Network while maintaining its current structure, objectives and governance, as set out in Council Decision 2008/381/EC of 14 May 2008. However the Commission notes that this is without prejudice to its right of initiative with regard to a future more comprehensive revision of the set up and functioning of this network, as envisaged in the Commission’s initial proposal for Article 23.
[10] Regulation (EU) No. 516/2014, article 3.1.
[11] Id., article 3.2
[12] ID., article 14.
[13] Id., article 20.
[14] Id., article 21.
[15] Id., article 22. See also the European Commission web page dedicated to the EMN, available at:
ec.europa.eu/dgs/home-affairswhat-we-do/networks/european_migration_network/index_en.htm
[16] Regulation (EU) No. 516/2014, article 23.
[17] See European Commission press release of 25th March 2015: ‘Investing in an open and secure Europe: €1,8 million to fund Asylum, Migration, Integration and Security’, Brussels, 25 March 2015 and European Commission, Dgs Mgration and Home Affairs, Migration-asylum borders, Asylum-Migration-Integration Fund, at: ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/index_en.htm
[18] European Commission – Press Release, ‘European Commission stands by Italy on coping with migratory pressure on Lampedusa’, Brussels, 19th February 2015, available at: Europa.eu/rapid/press-release_IP-15-4453_en.htm
[19] Very important are recitals (2), (7), (44), (46) of the Regulation (EU) No. 516/2014.
[20] Regulation (EU) No 604/2013 of the European Parliament and the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF
[21] See UNHCR, ‘UNHCR proposals to address current and future arrivals of asylum-seekers, refugees and migrants by sea to Europe’, March 2015 at 2.
[22] Id, at 3.
[23] See UNHCR (2011 a), UNHCR Resettlement Handbook, Geneva, page 1.
[24] Decision No 281/2012/EU of the European Parliament and of the Council of 29 March 2012 amending Decision No 573/2007/EC establishing the European Refugee Fund for the period 2008-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’, O.J. L. 92, 30.3.2012, pages 1-3.
[25] Article 17 of (EU) Regulation 516/2014.
[26] European Resettlement Network, ‘EU Funding for resettlement (ERF/AMIF)’, http://www.resettlment.eu/page/eu-funding-resettlment-erfamif
[27] UNHCR, ‘EU Resettlement  fact sheet’, available at: www.unhcr.org/524c31b69.html
[28] State participation in resettlement is still voluntary.
[29] http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf
[30] UNHCR, ‘UNHCR proposals to address current and future arrivals of asylum-seekers, refugees and migrants by sea to Europe’, March 2015 at 5.
[31] See the EU resettlement initiative “Save lives”, presented by the Austrian delegation to the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) on 16th September 2014 (Council of the European Union, Doc. 13287/14)
[32] See Statewatch, ‘Billions of euros for internal security and migration policy’, 26 March 2015, at: http://statewatch.org/news/2015/mar/eu-isf-amif-funding.html
[33] Indeed, it is considered violating the right to the Protection of personal data (art.8 Charter of Fundamental Rights of the EU); moreover, its aim is still doubtful.
[34] European Court of Auditors, ‘Do the European Integration Fund and the European Refugee Fund contribute effectively to the integration of third-country nationals?’, Special Report No 22/2012, European Union publications.
[35] A. D’Alfonso, “Asylum, Migration and Integration Fund” (AMIF), European Parliament Research Service, Doc. PE 551.316, March 2015, at 4-5.
[36] States article 13 of the Regulation No 514/2014 laying down general provisions for the AMIF and ISF-Police Funds: “After the conclusion of the policy dialogues, the Commission shall inform the European Parliament of the overall outcome”.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s