(EP Study on the implementation of the 2015 Council Decisions establishing provisional measures in the area of international protection for the benefit of Italy and of Greece)
THE FULL VERSION OF THE STUDY IS ACCESSIBLE HERE
Abstract : This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines the EU’s mechanism of relocation of asylum seekers from Greece and Italy to other Member States. It examines the scheme in the context of the Dublin System, the hotspot approach, and the EU-Turkey Statement, recommending that asylum seekers’ interests, and rights be duly taken into account, as it is only through their full engagement that relocation will be successful. Relocation can become a system that provides flexibility for Member States and local host communities, as well as accommodating the agency and dignity of asylum seekers. This requires greater cooperation from receiving States, and a clearer role for a single EU legal and institutional framework to organise preference matching and rationalise efforts and resources overall.
AUTHOR(S) : Elspeth GUILD, Centre for European Policy Studies, Brussels, (Belgium), Cathryn COSTELLO, Refugee Studies Centre, University of Oxford, (UK) Violeta MORENO-LAX, Queen Mary University of London, (UK). With research assistance from: Christina VELENTZA, Democritus University of Thrace, (Greece) Daniela VITIELLO, Roma Tre University, Rome, (Italy) Natascha ZAUN, Refugee Studies Centre, University of Oxford, (UK)
In September 2015 the Council adopted two Decisions regarding the relocation of asylum seekers from Greece and Italy to other Member States (‘the Relocation Decisions’). In total, the number of asylum seekers to be relocated was 160,000, to take place over 24 months from the adoption of the decisions. By 2 February 2017, 18 months into the relocation period, a total of 11,966 asylum seekers had been relocated from the two countries. The largest number of people relocated from Greece went to France (2,414) and from Italy to Germany (700). By any measure, this failure to make relocation work effectively and swiftly from the outset is striking.
The second Relocation Decision included a distribution key based on the following elements: (a) The size of the population (40%), as it reflects the capacity to absorb a certain number of refugees; (b) total GDP (40%), as it reflects the absolute wealth of a country and is thus indicative for the capacity of an economy to absorb and integrate refugees; (c) average number of spontaneous asylum applications and the number of resettled refugees per 1 million inhabitants over the period 2010-2014 (10%), as it reflects the international protection efforts made by Member States in the recent past; and (d) unemployment rate (10%), as an indicator reflecting the capacity to integrate refugees. Member States allocation under this distribution key was supposed to be mandatory with only the possibility for Member States to refuse an applicant on the basis of national security.
On this basis, the study pursues the following objectives:
- To describe the development of the relocation scheme in the context of the Common European Asylum System and the movement of third-country national asylum seekers in 2015;
- To investigate the operation of the relocation scheme(s) established in September 2015, the successes, failures, and practical modalities;
- To examine the reasons for resistance from several Member States to the relocation scheme;
- To understand the practices in the relocation schemes that have contributed to satisfactory outcomes for asylum seekers, States and the EU, and those practices that have resulted in unsatisfactory outcomes for all involved;
- To review the links between relocation and the ‘hotspots approach’ as well as action under the EU-Turkey Statement of 18 March 2016 and their impact on the ground;
- To unpack the implications of the incorporation of the relocation scheme in the Dublin IV reform through a permanent mechanism of corrective allocation;
- To formulate concrete proposals to improve and rationalise the workings of relocation within the EU as a stable element of the Common European Asylum System.
Issues and Recommendations
In the Introduction, the research methodology, general orientation, and limitations to this study are explained.
Chapter 1 reviews the central features of relocation in the EU and how this relates to the Dublin allocation of responsibility system. As the active participation of asylum seekers is critical to the success of relocation, it is recommended that the obligation under the Dublin Regulation to ensure family unity is complied with in a prompt and effective manner. This Dublin rule reflects asylum seekers’ human right to family life and the obligation to protect the ‘best interests’ of the child, as per EU fundamental rights standards. Ensuring swift family reunion also greatly aids integration into host societies.
The study, therefore, recommends in particular the following steps should be taken:
- The class of family members eligible to join already present family members in a host Member State be enlarged;
- The class of family members eligible to ‘sponsor’ a take-charge application be widened to include more that first-degree relations;
- Take-charge applications based on family unity should be prioritised and dealt with as quickly as possible;
- Take-charge applications should be admissible even where the Member State where the asylum seeker trying to be taken charge of has been unable to register his or her asylum application, or where return to a third country might be understood to render an application inadmissible. Family ties must take priority over admissibility criteria.
It is further suggested that the EU should have regard to other areas of law and practice where preference matching is working successfully, such as in allocation of university places, ERAMSUS programmes, and other EU student mobility schemes. The study identifies the key principles of institutional design for preference matching systems that could make relocation work better.
Chapter 2 examines relocation in practice, from the perspective of the receiving States, and on the ground in Greece and Italy. It found that, although the Relocation Decisions are legally binding, some Member States have refused or failed to comply with them. These include the Member States that voted against their adoption in the Council (Hungary, Czech Republic, and Slovakia), and a number of others, where practical and political challenges against relocation have emerged. While a few States are on track to meet their relocation commitments, most are not. The most common form of non-compliance has been the failure to pledge or provide sufficient (or in some cases any) relocation places. Even if they have pledged places, States reject relocation requests in a legally questionable manner. The explanations for varying degrees of compliance with the Relocation Decisions lie in varying degrees of 1) political support; 2) reception and processing capacity, in particular for vulnerable applicants; and 3) perceptions regarding security threats posed by applications for relocation. In both Italy and Greece, various practical obstacles have emerged on the ground, but the main problem is the lack of cooperation from receiving States. The result is that asylum seekers lack information on relocation, and are often left waiting, frustrated, and anxious.
The study accordingly recommends that the failure of Member States to pledge relocation places be taken seriously as a threat to the rule of law at the EU level, which may warrant exploration, as well as formal enforcement action. The European Asylum Support Office (EASO) should develop robust systems for external monitoring of the workings of reception and processing systems, and help Member States develop more efficient chain management of the asylum process, to avoid blockages in reception centres. Overall a better package of penalties and incentives should be developed to encourage greater relocation pledges. The administrative and reception challenges in both Italy and Greece demand better coordination of all relevant agencies; greater personnel on the ground with the appropriate communication skills; and a swifter response to requests for relocation. On national security screening, EASO should develop clear guidelines on this matter, both substantively and institutionally. The European Police Office (EUROPOL)’s role should be clarified, in particular in ensuring proper communication across pertinent authorities when there are genuine national security concerns. Finally, many of the practical problems with the workings of relocation would be alleviated if Member States were pledging places simultaneously, which would enable effective preference matching. The voice and agency of asylum seekers must be taken into account if the relocation system is to respect and protect their human rights, and work effectively.
Chapter 3 analyses the role of the ‘hotspot approach’ in relocation, finding that both are operationally linked. Hotspots were conceived to work as ‘enablers’ to the relocation scheme. When first designed, its key function was to support the identification of candidates for relocation. Yet, the practical focus has shifted over time to migration control, giving rise to an emphasis on pre-emption of onward movement that has led to instances of serious fundamental rights violations in both Italy and Greece – in the latter, particularly after the adoption of the EU-Turkey Statement. In addition, this investigation has found that, overall, hotspots have not helped in alleviating pressure on the Italian and Greek systems. On the contrary, they increase burdens, because of structural shortcomings in their design and implementation and due to continuing applications, exacerbating the flaws of the Dublin system that the relocation scheme intended to repair.
The study, therefore, recommends a return to the original purpose of the Relocation Decisions, with the ‘hotspot approach’ regaining its international protection rationale, recognising the needs and rights of the forced migrants concerned.
Chapter 4 investigates the role of EASO and other institutions in the relocation scheme, concluding that, together with EASO, several other EU agencies, international bodies, and other loosely coordinated actors contribute to the implementation of the ‘hotspot approach’ and relocation schemes. Their roles vary, and there is a lack of coordination, due to the absence of a clear definition of roles and responsibilities. In this setup, this research establishes that the European Border and Coast Guard Agency (Frontex) plays a key role, in some respects even more prominent than that of EASO, as it is charged with assistance to nationality determination – which constitutes the gateway to relocation. Yet, both agencies assume tasks and powers beyond the explicit terms of their founding Regulations, acting without a clear EU legal mandate. Also, the lack of a proper operational hierarchy in existing coordination structures between contributing agencies and other stakeholders on the ground creates barriers to the translation of legal priorities into practical action. This generates real risks of fundamental rights violations and the degradation of international protection guarantees.
Accordingly, the study recommends reinforcement of the legal and organisational framework, through the adoption of a dedicated EU instrument detailing arrangements and responsibilities of each individual actor, and advocate the introduction of independent monitoring mechanisms and channels of democratic and judicial oversight to ensure respect for fundamental rights.
Chapter 5 analyses the Commission’s proposal on Dublin IV regarding relocation. The current coexistence of the relocation scheme with Dublin transfers, in light of statistical evidence, is revealed as internally inconsistent and structurally flawed. It leads to perverse outcomes, with incoming Dublin transfers outnumbering relocation figures, wasting resources and compounding strain on beneficiary Member States. Therefore, it is concluded that the resumption of Dublin transfers to Greece, as suggested by the European Commission, is premature and, given current reception conditions in Greece, likely to still be incompatible with ECHR and EU Charter human rights standards. By contrast, the consolidation of the relocation scheme as part of the Dublin IV reform is to be welcomed, as it will provide continuity to the system on a permanent basis. Yet, the fundamental shortcomings of the Dublin system should first be addressed. Maintaining the key features of Dublin will only perpetuate deficiencies and consolidate the unfairness inbuilt into the system, contradicting the spirit of Article 80 TFEU. In fact, the new corrective allocation scheme, if adopted as is, will play a very small role in relieving pressure from beneficiary Member States, because most cases will not qualify for transfer due to the new admissibility and security tests pre-phased to Dublin rules. That Member States may choose not to participate in the scheme through payment of a financial contribution is also ethically and empirically at odds with Article 80 TFEU.
For these reasons, the study recommends that a centralised system, doing away with Dublin deficiencies, be adopted instead. It would reduce bureaucratisation, break the unfairness inherent in the ‘first-country-of-entry’ rule, maximise fair distribution potential, and allocate resources more effectively. In any event, whatever the course finally taken, the rights and preferences of asylum seekers ought to be taken into account in line with EU fundamental rights obligations and for purely practical reasons, to diminish onward movements and recourse to coercion. Short of a system of free choice, the ‘preference matching tool’ developed by EASO within the relocation scheme should be further developed.
In Chapter 6, the study identifies the key elements necessary for the Dublin IV provisions on relocation to be effective and finds that there are real opportunities to make relocation a viable and useful part of the CEAS. It puts forward that, to fulfil their potential, the measures need to be based on cooperation with asylum seekers and the recognition that their acceptance of relocation is key to the success of the system.
The study, thus, recommends that asylum seekers be fully involved in the relocation process, be provided with ample reliable information on the range of options available to them, and have their preferences taken into account. Family unity must be granted priority (over and above relocation), in line with fundamental rights obligations and also due to its practical potential to facilitate integration in the host community. Asylum-seekers with family members in the EU should not have their claims deemed inadmissible. Legally, the human rights principles of family unity and best interests of the child take priority over any admissibility criteria.
Relocation under the distribution key should only be pursued when reunion on the basis of family links has been fully exhausted. Within the Dublin system, the take-charge provisions should have priority over relocation; asylum seekers need reliable and accurate information about the living conditions and integration possibilities for them in the proposed relocation State. The engagement of civil society is key in making relocation work properly in this regard; the active participation of asylum seekers is an essential part of making relocation effective and durable; The establishment of a clearing-house system, as many Member States have for young people seeking university places, for asylum seekers relocation; key tenets of the ‘Dublin without coercion’ model, taking full account of asylum seekers agency and dignity, should be incorporated into any replacements of the Dublin III Regulation and Relocation Decisions.
It is critical that the EU genuinely acknowledges that refugees are an opportunity, not a burden, and so helping them to achieve their potential is also in the interests of the EU as a whole. In line with the ‘Dublin without coercion’ model – expounded in two previous studies for the European Parliament on this matter.1 The study finds that this can best be achieved through cooperation, rather than coercion.
In the conclusions the study revisits key findings from each Chapter and summarises the recommendations highlighted above.
1Guild et al., Enhancing the Common European Asylum System and Alternatives to Dublin, Study PE 519.234 (European Parliament, 2015); Guild et al., New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International, Study PE 509.989 (European Parliament, 2014).