ORIGINAL PUBLISHED ON OPEN DEMOCRACY (29 September, 2016)
by
The increase in the flows of asylum seekers towards the European Union in recent years has re-awakened the discussion over the meaning, extent and limits of the principle of solidarity in European asylum law.
In view of this politically sensitive and ongoing discussion, this contribution aims to assess the legal meaning of solidarity in the Common European Asylum System. I will attempt to demonstrate that the evolution and content of the principle of solidarity in both EU primary and secondary law is predominantly state-centred, with claims of solidarity being advanced primarily with states as reference points and as beneficiaries.
I will aim to demonstrate the limits of this state-centred approach to solidarity both in terms of ensuring effective protection of the rights of asylum seekers and refugees and in terms of achieving an efficient and well-functioning European asylum system. I will advocate in this contribution a paradigm change: moving from a concept of state-centred solidarity to a concept of solidarity centred on the individual.
I will demonstrate how the application of the principle of mutual recognition in the field of positive asylum decisions can play a key part in achieving this paradigm change. I will argue in particular that positive mutual recognition- if accompanied by full equality and access to the labour market for refugees across the European Union- is key towards addressing the lack of effectiveness in the current system.
I will end this contribution by looking boldly in the future, and exploring how refugee-centred solidarity can be achieved by moving from a system of inter-state cooperation based on national asylum determination to a common, EU asylum procedure and status.
State-centred solidarity in European asylum law – a constitutional perspective
An examination of European constitutional law reveals a concept of asylum solidarity which is state-centred, securitised and exclusionary. (Mitsilegas 2014). The emphasis on state-centred state is confirmed by the provisions of the Lisbon Treaty on solidarity in the Area of Freedom, Security and Justice.
According to Article 67(2) TFEU, the Union shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. Article 80 TFEU further states that the policies of the Union on borders, asylum and immigration will be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.
Solidarity is also securitised: as with other areas of European Union law, solidarity in European asylum law reflects a crisis mentality and has led to the concept being used with the aim of alleviating perceived urgent pressures on Member States. This view of solidarity as an emergency management tool is found elsewhere in the Treaty, in the solidarity clause established in Article 222 TFEU according to which the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural man-made disaster.
The concept of solidarity here echoes the political construction of solidarity in European asylum law, in responding to perceived urgent threats. This view is confirmed by the growing trend towards the securitsation of migration and asylum in EU law and policy Placed within a state-centric and securitised framework, solidarity is also exclusionary.
The way in which the concept of solidarity has been presented in EU constitutional law leaves little, if any space for the application of the principle of solidarity beyond EU citizens or those ‘within’ the EU and its extension to third-country nationals or those on the outside.
One of the few provisions of the Treaty which may be seen as leaving the door open towards a more human-centred concept of solidarity, Article 2 TEU on the values of the European Union, states that these values are common to the Member States in a society in which…solidarity… [must]prevail. The inclusion of asylum seekers and refugees in this concept of solidarity is unclear. Although asylum law is centred on assessing the protection needs of third-country nationals, and in this capacity they must constitute the primary ‘recipients’ of solidarity in European asylum law, the application of the principle of solidarity in this field appears thus to follow the exclusionary paradigm of solidarity in other fields of EU law where issues of distributive justice arise prominently.
Dublin as the embodiment of state-centred solidarity, and the failure of negative mutual recognition
In order to understand the issues arising from the discussion regarding solidarity in the context of the allocation of asylum seekers and refugees across the European Union, it is essential to point out that the Common European Asylum System currently in place is based on the development and interaction of national asylum systems.
The European Union has not developed a unified EU-wide asylum procedure and refugee status. While a key element of the evolution of the European Union into an Area of Freedom, Security and Justice has been the abolition of internal borders between Member States and the creation thus of a single European area where freedom of movement is secured, this single area of movement has not been accompanied by a single area of law.
While there has been ongoing harmonisation of national rules on asylum procedure, reception conditions are refugee qualification, asylum applications in the EU are still examined by individual Member States following a nationalasylum procedure and leading to a national refugee status and ensuing rights.
In this context, governance of asylum flows within the European Union and allocation of responsibility for asylum seekers and refugees has been designed within a system of interaction between national legal systems rather than under a system of centralized allocation in a single area. A key mechanism of governance of asylum flows within the European Union has been the application of the principle of mutual recognition in European asylum law.
Mutual recognition creates extraterritoriality and pre-supposes mutual trust: in a borderless Area of Freedom, Security and Justice, mutual recognition is designed so that the decision of an authority in one Member State can be enforced beyond its territorial legal borders and across this area speedily and with a minimum of formality.
As with other areas of EU law, most notably EU criminal law, in the field of EU asylum law automaticity in the transfer of asylum seekers from one Member State to another is thus justified on the basis of a high level of mutual trust. This high level of mutual trust between the authorities which take part in the system is premised upon the presumption that fundamental rights are respected fully by all EU Member States across the European Union.
The presumption of mutual trust is inextricably linked with automaticity in inter-state cooperation. Automaticity in inter-state cooperation means that a nationaldecision will be enforced beyond the territory of the issuing Member State by authorities in other EU Member States across the Area of Freedom, Security and Justice without many questions being asked and with the requested authority having at its disposal extremely limited- if any at all- grounds to refuse the request for cooperation.
In the field of EU asylum law, mutual recognition based on automaticity and trust has been introduced by the Dublin Regulation, which sets out a system of automatic inter-state cooperation which has been characterised as a system of negative mutual recognition. Recognition can be viewed as negative here in that the occurrence of one of the Dublin criteria creates a duty for one Member State to take charge of an asylum seeker and thus recognise the refusal of another Member State (which transfers the asylum seeker in question) to examine the asylum claim.
The Dublin Regulation thus introduces a high degree of automaticity in inter-state cooperation. Member States are obliged to take charge of asylum seekers if the Dublin criteria – including notably the criterion of irregular entry via one of the EU Member States- are established to apply, with, at least initially, only limited exceptions.
In this system of inter-state cooperation based on automaticity and trust, there is little place for the individual situation and rights of asylum seekers to be taken into account. Mutual recognition in Dublin thus reflects a model of state-centred, securitised and exclusionary solidarity: Dublin has been designed predominantly with the interests of [certain] states in mind, and is a system which aims to deflect undesirable asylum seekers from Member States’ territory.
Notwithstanding judicial challenges to automaticity and blind trust in the Dublin system (see in Strasbourg M.S.S. v. Belgium and Greece, judgment of 21 January 2011, Application No 30696/09 and Tarakhel v. Switzerland, Application no. 29217/12 and in Luxembourg N.S. and M.E., Joined Cases C‑411/10 and C‑493/10), the current Dublin system reflected in the legislation currently in force (the Dublin III Regulation) continues to reflect predominantly a state-centred concept of solidarity. It is thus unsurprising that the Dublin III Regulation has not succeeded in addressing the flaws of the Dublin system, with its inefficiencies becoming more apparent in the wake of the post-Syria conflict refugee flows.
In this context, the Commission has recently proposed a new Dublin Regulation (so-called Dublin IV) aimed at addressing the current shortcomings (COM (2016) 270 final, Brussels, 4 May 2016). Dublin IV very much continues to reflect a state-centred model of solidarity.
The hierarchy of Dublin criteria – including the centrality of irregular entry- is maintained (chapter III of the Regulation), with applicants entering irregularly facing consequences if they fail to lodge an asylum claim in the first Member State they enter (Article 4(1) and 5(1)). Member States where asylum applications are lodged are under obligations to run a series of admissibility screenings (Article 3(3)).
The early warning mechanism provided for in Dublin III is repealed and will be replaced by a more permanent monitoring role by the European Asylum Support Office (EASO), which will play a key role in the functioning of a new mechanism introduced by Dublin IV, namely ‘the corrective allocation mechanism’ put forward in Article 34 of the draft Regulation. The mechanism will apply in cases where Member States are faced with a disproportionate number of asylum applications, where the number of applications and resettled person sis higher than 150% of the number determined under a ‘reference key’ developed by EASO on the basis of Article 34(4) and 35 of the Regulation (Article 34(1) and (2)).
Under an automated system applicants would be allocated to Member States with a number of applications for which they are the Member States responsible below their share pursuant to Article 35(1) (Article 36(1)). This new system is backed up by a lengthy provision on financial solidarity, which allows inter alia Member States not to accept asylum seekers under the above system if they make a ‘solidarity contribution’ of EUR 250,000 per each applicant who would have otherwise been allocated to that Member State which will be paid to the Member State determined as responsible for examining the respective applications (Article 37(3)). In this manner, the Dublin model of state-centred solidarity is being reinforced.
Allocation of responsibility is based exclusively on the needs of states. Solidarity is being commodified with the Commission blatantly using terms as ‘solidarity contributions’ when Member States are dealing with vulnerable individuals. The system of automaticity remains and is strengthened, with no direct consideration of the individual situation of asylum seekers. As with the –largely unimplemented- relocation mechanism devised to address emergency refugee flows in 2015 (See in particular Council Decisions (EU) 2015/1523 of 14 September 2015 and 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece), the distribution of responsibility in Dublin IV does not take into account at all the agency and choice of asylum seekers themselves.
Towards a paradigm change: mutual recognition of positive asylum decisions as refugee-centred solidarity
A way in which the current conceptual and human rights limits of solidarity in the Common European Asylum System can be transcended is to think differently about the application of the mutual recognition principle and focus on the establishment of a system of mutual recognition of positive asylum decisions, which will then carry with them the rights granted to refugees at the national level throughout the European Union.
I have advocated the application of the principle of mutual recognition of positive asylum decisions in a Report I prepared for the Open Society Foundation in 2014, which I presented at the Italian Presidency of the Council of the EU conference on asylum in November 2014 (for the main findings see Mitsilegas Mutual Recognition of Positive Asylum Decisions in the European Union, FREE Group website, 12 May 2015).
My proposal for adopting a model of mutual recognition of positive asylum decisions has since been endorsed by the Council of Europe Parliamentary Assembly (Council of Europe 2015) and reflected in a recent study prepared for the European Parliament Civil Liberties Committee (Guild et al, 2015).
I have argued that the application of mutual recognition in order to achieve the extraterritorial reach of rights has already been applied in the European criminal justice area by Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order (OJ L338, 21.12.2011, p.2). The Directive aims to apply the principle of mutual recognition in criminal matters to orders issued to protect victims in one Member State when these victims find themselves in other EU Member States-in other words, it is aimed that the recognition of a European Protection Order by the authority in the executing Member State will mean that the protection will ‘follow’ the victim to the Member State they have moved to.
The Directive also puts forward the principle of assimilation, by stating that a European Protection Order must be recognised with the same priority which would be applicable in a similar national case, taking into consideration any specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person.(Article 15, emphasis added).
The free movement rationale of the Directive is evident already in tis Preamble, where it is stated that in a common area of justice without internal borders, it is necessary to ensure that the protection provided to a natural person in one Member State is maintained and continued in any other Member State to which the person moves or has moved and that it should also be ensured that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) of the TEU and Article 21 TFEU does not result in a loss of their protection (Mitsilegas 2016a).
I have argued that the application of the principle of mutual recognition on decisions granting rights to individuals can be applied in the Common European Asylum System. The application of the principle of mutual recognition of positive asylum decisions provides five distinct and clear benefits:
1. It will create legal certainty as regards the status and rights of refugees throughout the EU in an AFSJ without internal frontiers
2. It is consistent with the Treaty aim of establishing a CEAS and a uniform status (Article 78 TFEU)
3. The necessary harmonisation which is necessary for the effective operation of mutual recognition exists at EU level, with the adoption of the second generation CEAS instruments post-Lisbon. There is a need to focus on the implementation of and compliance with these instruments across the EU.
4. Mutual recognition of positive asylum decisions is a corollary to developments examining possibilities for the pooling of reception conditions and join processing of asylum claims. Pooling of reception and procedure must be combined with the pooling of protection. Joint efforts in procedures and reception before the granting of refugee status will create joint ownership and mutual trust which will facilitate the subsequent recognition of positive asylum decisions across the EU.
5. Mutual recognition of positive asylum decisions focuses the discussion on solidarity specifically on the needs and rights of the refugee.
But how can the principle be applied? There are three factors which must be considered when examining the precise conditions and modalities for the application of the principle of mutual recognition to positive asylum decisions:
1. Time: from when will mutual recognition kick in? One option is for mutual recognition to kick in from day one, namely from the date of the judicial decision granting refugee status. This is the preferable option and it could be based on a model granting equal treatment to refugees with citizens of the Union.
Another option may be for mutual recognition to kick in after 2 years of continuous residence in the state which has granted protection in line with the time limits established by the European Agreement of Transfer of Responsibility.
A third option may be a hybrid model where movement to the second Member State happens immediately but equal treatment with long-term resident third-country nationals is granted from day one, whereas equal treatment with nationals of the second state is granted after 2 years.
2. Rights: For mutual recognition to be meaningful, the recognition of status should be accompanied by the recognition of rights. The protection and rights which the refugee is granted in the first Member State should follow her in the second Member State. There are different moments in time when this can happen (see under i).
3. Quotas: a possible way forward is to combine mutual recognition with the allocation of responsibility between Member States on the basis of quotas. However, this option faces two challenges: it may disregard the particular situation and wishes of refugees (eg in the context of family reunification); and it is difficult to enforce in a Union without internal frontiers.
—
By focusing on positive mutual recognition and the extraterritorial application and reach of the rights of beneficiaries of international protection, mutual recognition of positive asylum decisions could be seen as an important step towards intra-EU mobility in line with one of the key underlying principles of the EU, providing more flexibility to enable protection holders to use their skills and labour where these could be needed within the Union.
It would also ensure legal certainty for both Member States and recipients of international protection vis-a-vis the position of the latter in the borderless Area of Freedom, Security and Justice. It may also act as a first step towards the establishment of a meaningful uniform status for refugees across the European Union, by leading to a centralised EU system of asylum determination and relocation, and by addressing –by focusing on rights and granting legal certainty in the field- the current failure of the modest EU relocation initiatives.
The move to the mutual recognition of positive asylum decisions and ultimately to a uniform status poses fewer challenges than integration on these terms in the field of criminal justice, as European asylum law is marked by a high degree of harmonisation underpinned by a series of detailed human rights standards in European Union and international law. A positive model of mutual recognition would thus empower refugees, and contribute to a paradigm shift from state-centred solidarity towards a model of solidarity centred on the individual.
From mutual recognition to unification and a uniform refugee status in the EU
The application of the principle of mutual recognition to positive asylum decisions pre-supposes the continuation of the current model of the Common European Asylum System which is based on the interaction of national asylum systems and the existence of national asylum determination procedures.
A bold way forward to strengthen refugee-centred solidarity would be to contemplate a move from national to EU asylum determination and refugee status. This idea has been discussed recently and included in the Commission Communication on the reform of the Common European Asylum System published in 2016 (COM (2016) 197 final).
One of the options put forward by the Commission was the setting up in the longer term of a new system transferring responsibility for the processing of asylum claims from the national to the EU level, for instance by transforming EASO into an EU-level first-instance decision-making agency with national branches in each Member State, and establishing an EU-level appeal structure (pp.8-9).
As seen above in the discussion of Dublin IV, this proposal has not been taken forward. However, the European Union has started examining distributive models – albeit with limited political will by Member States and under a model of solidarity heavily centred on the needs of states- both in it relocation initiatives and in Dublin IV, and these measures constitute timid but first steps towards rethinking the distribution of asylum seekers and refugees across the European Union.
A centralised, EU-wide system is feasible in view of the high level of harmonisation of asylum law in the EU and the international protection roots and needs inherent in the system. Such a centralised system has the potential to achieve the aim of a uniform refugee status across the EU and it can act as a catalyst for the transformation of solidarity under the essential condition that it places the agency and preferences of asylum seekers at its heart.
Conclusion
The development of Europe’s Common Asylum System has been based on a concept of solidarity which is predominantly state-centred. This approach has not served EU Member States, or applicants for international protection, well.
The Dublin Regulation- notwithstanding its regular revisions- is a highly inefficient mechanism of allocation of responsibility for asylum applications and it poses significant challenges to the rights of asylum seekers without ensuring a high level of compliance with EU asylum law by Member States.
The recent revision of the Dublin system by the Commission remains grounded on a state-centred model of solidarity, and therefore it is predicted that it- like its predecessors- will fail if the agency and rights of asylum seekers continue not to be taken into account.
This contribution has argued that the way forward to ensure an efficient and rights-compliant asylum system in the European Union is to achieve a paradigm change and move from a concept of solidarity centred on the state to a concept of solidarity centred on the refugee. This paradigm change can be achieved in two ways.
In the short term, by applying the principle of mutual recognition to positive asylum decisions. The contribution has highlighted precedents in the field of criminal justice and has demonstrated the potential that positive mutual recognition has in order to bring the rights and preferences of refugees into the fore. In the longer term, a unified, truly common, European asylum system which will move from national to EU determination and status can be the way forward in reversing the paradigm of solidarity.
This paradigm change can only happen if the asylum seeker and the refugee, their agency and choice, are taken into account fully in the development of European asylum law.
—-
An extended version of this article will appear in: Marianna Karakoulaki, Laura Southgate & Jakob Steiner (eds.), Migration in the 21st Century, e-international relations book
(*) Valsamis Mitsilegas is Professor of European Criminal Law, Director of the Criminal Justice Centre and Head of the Department of Law at Queen Mary University of London. He has published widely in the fields of security and human rights, surveillance and privacy, European criminal law, immigration, asylum and borders, and on legal and policy responses to transnational crime and terrorism. He is a regular advisor to governments, parliaments, EU institutions and NGOs and is currently member of the European Commission’s Expert Group on European Criminal Policy. His recent monographs include The Criminalisation of Migration in Europe(Springer, 2015) andEU Criminal Law After Lisbon: Rights, Trust and the Transformation of Justice in Europe(Hart/Bloomsbury, forthcoming, May 2016).
References
Council of Europe, Parliamentary Assembly (2015), After Dublin- the urgent need for a real European asylum system, Report by Committee on Migration, Refugees and Displaced Persons, doc. 13866, 10 September 2015 (rapporteur: Michele Nicoletti).
Mitsilegas, V. (2016). EU Criminal Law After Lisbon. Rights, Trust and the Transformation of Justice in Europe, Hart.
V. Mitsilegas (2015), Mutual Recognition of Positive Asylum Decisions in the European Union, FREE Group website, 12 May 2015.
Mitsilegas, V., (2014), ‘Solidarity and Trust in the Common European Asylum System’ in Comparative Migration Studies, vol.2, 2014, pp.231-253.
European Area of Freedom Security & Justice 