FULL STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE AVAILABLE HERE
by Darren NEVILLE, Sarah SY, Amalia RIGON
The migration and refugee crisis has brought multiple challenges for the European Union’s migration, asylum and border management policy architecture. The sheer number of new arrivals, together with their concentration on certain migration routes (first into Italy and subsequently into Greece and then onwards along the Western Balkan route), have placed the EU and particularly frontline Member States under considerable strain. The crisis has thus exposed shortcomings both in EU policy and its implementation. And – as some Member States resort to national responses, such as internal border checks, and countries along the Western Balkan route effectively close their borders – more and more migrants and refugees have found themselves trapped in Greece, sparking a humanitarian crisis.
The unprecedented migration flows have generated substantial policy and legislative activity centred around the European Commission’s May 2015 European Agenda on Migration. The Agenda sets out five priority actions to manage migratory flows, since backed up by a number of initiatives – for example to combat migrant smuggling and enhance border management – with further initiatives to overhaul the asylum system, to improve reception conditions and to bolster resettlement in the pipeline. The Agenda emphasises specifically the need to return those with no right to remain and to relocate some of those in clear need of international protection out of frontline Member States as part of a responsibility-sharing mechanism. Both on return and relocation, initiatives have followed. These include two decisions, adopted by the Council in September 2015, to provide for the relocation of 160,000 people in clear need of protection from Greece and Italy to other EU Member States. In particular the need to cooperate with third countries to bring order to migratory flows, stressed repeatedly by the European Council, led to the EU-Turkey statement of 18 March 2016. The statement, which aimed to drive down the number of irregular and dangerous migrant crossings from Turkey to the Greek islands, established a mechanism governing the return of irregular migrants from Greece to Turkey and the resettlement of Syrians from Turkey to the EU.
As part of the immediate response to assist frontline Member States facing disproportionate migratory pressure, the Commission outlined a new hotspot approach to migration in its European Agenda on Migration. Located at key arrival points in frontline Member States, hotspots are designed to inject greater order into migration management by ensuring that all those arriving are identified, registered and properly processed. Hotspots thus link inextricably both to the relocation programme and to the aim of ensuring effective returns. Hotspots are based on the operational deployment of multiple EU agencies, notably Frontex, EASO and Europol, and are coordinated by a Regional Task Force in each Member State where hotspots are in operation – currently Italy and Greece. Rollout of the hotspots proved initially sluggish, due in part to the need to build them from scratch and to remedy infrastructure shortcomings, but has gathered pace significantly since early 2016. Four of the five planned hotspots in Greece are now operational as are four of the six planned in Italy. There seems to be consensus that hotspots have delivered greater order and substantially improved registration and fingerprinting rates.
And yet criticism of the hotspots has been vehement in certain quarters. Critics point, for example, to a lack of clarity about what happens to those who do not qualify for relocation, but nonetheless wish to apply for international protection. The new mechanism agreed with Turkey has also prompted NGOs formerly providing essential services in the hotspot on Lesvos to pull out in protest at the conversion of the hotspot into a closed facility and at what they regard as a move to collective expulsions. Their withdrawal has reportedly led to a worsening of conditions in the hotspot centres. The Commission itself also acknowledges that the EU-Turkey Statement has shifted the focus in the Greek hotspots from identification and registration to return.
Nevertheless, for all the difficulties to date, the hotspot approach remains fundamentally valid. By providing on-the-ground operational support from EU agencies, it can help to ensure that migration is effectively managed on the frontline. In order to meet this challenge, however, a number of policy recommendations might merit consideration by the European Parliament:
The European Parliament could consider the need to regulate hotspots through a stand-alone legal instrument, taking into account its interaction with other relevant instruments, such as the EU Asylum Procedures and Reception Conditions Directives. The loose policy framework surrounding hotspots may provide operational flexibility, but the absence of a stand-alone legal instrument may in turn lead to a lack of legal certainty. Regulating agencies’ roles in hotspots through separate legal instruments – such as a new European Border and Coast Guard Regulation – could undermine the multi-agency foundation.
Members could call for a clearer role for individual agencies and clearer framework for their cooperation within hotspots. While both Frontex and EASO are heavily engaged in the hotspots, there is considerable disparity in terms of their respective staff deployment and budgetary resources. Europol’s on-the-ground deployment appears to be patchy, while the role of Eurojust seems even less well developed. The Fundamental Rights Agency is invited to provide input through existing cooperation agreements, though there is no mainstreaming of its role.
Mainstreaming fundamental rights in the hotspots. A clearly designated role for the FRA in the hotspot approach could help to address the obvious fundamental rights challenges in the pressurised environment of the hotspots. This is especially important given the need to protect the fundamental rights of vulnerable groups, such as women and children. Equally, while executive powers may rest with Member States, the enhanced operational support provided by EU agencies in hotspots calls for much clearer rules on the extent to which they can be considered liable and accountable for their actions.
Members should insist that proper procedures for all protection seekers are guaranteed in hotspots as enshrined in the EU Asylum Procedures Directive. Swift processing of migrants and refugees within hotspots must not come at the expense of their rights and proper safeguards. Migrants must always be given the opportunity to apply for international protection and applications must be assessed on an individual, objective and impartial basis. Returns can only be carried out subject to a prior non-refoulement and proportionality check. Hotspots cannot provide a binary choice between relocation and return, but must have clear procedures for those wishing to apply for international protection, but not qualifying for relocation.
Members should insist that efforts to register and identify all migrants arriving in the hotspots continue in order to enhance both relocation and return procedures and to improve overall security. In both Italy and Greece, registration and fingerprinting rates have improved considerably, reaching 100% in both countries. The Commission has also stated that the hotspot workflow and relocation process include systematic security checks. It is important to redouble efforts and ensure that everyone arriving is registered and checked against relevant Interpol and EU databases.
On the Dublin Regulation:
The European Parliament should, in its role as co-legislator, insist on a fundamental change to the Dublin Regulation and a binding distribution system.
The natural extension of the relocation policy and the deployment of EU agencies in hotspots would seem to be a fundamental overhaul of the Dublin Regulation with a binding system for distributing asylum seekers among the Member States, using a fair, compulsory allocation key.
Any resumption of transfers to Greece under the existing Dublin Regulation should take into account that Greece still receives a large number of protection seekers on a daily basis. Regardless of the Commission’s proposed Dublin reform, plans to reinstitute Dublin transfers to Greece under the existing Dublin Regulation in June 2016 seem to contradict the idea of an emergency relocation mechanism to transfer those in need of international protection out of Greece. Resumption of Dublin transfers before pressure has been alleviated and adequate reception conditions are guaranteed appears premature.
On a possible new mandate for EASO:
EASO should be given a stronger mandate and enhanced resources. In parallel with the creation of a European Border and Coast Guard with a reinforced mandate, the Parliament could support the Commission’s proposal to enhance EASO’s mandate in line with its operational role in hotspots and increase parliamentary oversight. If the agency is to play a new policy implementation role and a greater operational role, it will require sufficient financial resources and adequate legal means.
On the EU-Turkey statement:
Members should call on the Commission to monitor carefully the implementation of the EU-Turkey statement. The Commission must be vigilant in monitoring implementation of the mechanism and respect for human rights, not least in light of the criticism from NGOs and other international organisations. Reports of illegal detention or deportation must be fully investigated. The Parliament should fulfil its role as co-legislator when it comes to the visa liberalisation process and budgetary aspects.
TABLE OF CONTENT
2 THE POLICY FRAMEWORK SURROUNDING HOTSPOTS
Relocation and resettlement programmes
Irregular migration and return
Improving border management
Creating adequate reception capacity and conditions
- THE SITUATION IN GREECE
3.1. Reception and asylum in Greece
Reception capacity in Greece
Asylum applications in Greece
3.2. The situation at the Greek borders and the Schengen area
The situation at the Greece-FYROM border: the makeshift camp of Idomeni
Greece and the Schengen area
Budgetary support to Greece
The EU-Turkey statement – the consequences of the new mechanism
The revised Greek law on asylum
The Greece-Turkey Readmission Agreement
Initial impact on migration flows
- THE LEGAL AND POLICY FRAMEWORK GOVERNING HOTSPOTS
4.1. Hotspots: the policy framework
Coordination of the hotspot approach
Tasks to be performed in the hotspots
Hotspots: the legal framework
Hotspots: outstanding policy and legal questions
Ensuring proper procedures for all asylum seekers
The absence of a stand-alone legal instrument
The enduring question of fundamental rights liability
Mainstreaming fundamental rights in the hotspots
The policy focus of hotspots
- HOTSPOTS IN PRACTICE – GREECE AND ITALY
5.1. Hotspots in Greece
Agency presence in Greek hotspots
The legal and regulatory framework
The EU-Turkey statement: a shift in focus for hotspots
Hotspots in Greece – a brief assessment
5.2. Hotspots in Italy
Agency presence in Italian hotspots
The legal and regulatory framework
Hotspots in Italy – a brief assessment
- EUROPEAN PARLIAMENT POSITION AND ACTIVITIES
- CONCLUSIONS AND POLICY RECOMMENDATIONS