A Happy New Year for Migration and Asylum Policy? A Critical Review of the Legal and Policy Developments in 2016 in Relation to the Crisis of the European Union

If the crisis started in 2015, one may wonder if 2016 really saw its end with the decrease of the numbers of migrants and asylum seekers following the Balkan Road on their way to the EU.

The Odysseus Network decided to devote its 2017 Annual Conference to different issues closely related to this crisis because of its deep influence on the course of the Migration and Asylum Policy. Before looking at the very diverse issues on the programme, it is necessary to better understand which crisis we actually face(d).

Hence, we have asked two of our colleagues to engage for the opening plenary session in a dialogue on the basis of the articles that both published in the Common Market Law Review in 2016: Thomas Spijkerboer with Coercion, prohibition and great expectations: the continuing failure of the Common European Asylum System (CEAS) and Daniel Thym with The refugee crisis as a challenge of legal design and institutional legitimacy.

The authors agree that this crisis  is not a “refugee crisis” because of the numbers of persons arriving but a crisis of the European asylum policy due to the way the EU deals with the unprecedented number of refugees it received,  which revealed structural deficiencies as well as a problem of integration through law. Both look for possible solutions in the same direction, in particular towards a greater role and the strengthening of EU agencies (Frontex and the European Asylum Support Office (EASO)) while underlining, however, that there are several legal obstacles to a centralisation of competences at EU level or that such a federalisation is only realistic as a long-term perspective.

Spijkerboer considers a much more modest alternative with “a novel system following the example of the proposal for a European Public Prosecutor’s Office under which delegates of the European Agencies would operate within specific Member States subject to the control of national courts” which refers to the collaboration between the Greek administration and Frontex/EASO emerging in hotspots  that will be discussed during Workshop 4 (see below). He concludes that the EU response is likely to make the the crisis worse because it does not reconsider the very foundations of the CEAS: “coercion towards asylum seekers, prohibition of travelling from third countries to the European Union and unrealistic expectations of what border controls can achieve”.

Thym’s conclusion is only a bit more optimistic: due to the lack of a consensus about asylum, he considers that the EU  lives a constitutional moment in which conceptual foundations are reconfigured between the option of the ‘welcome culture’ epitomised by the initial policy of the Merkel Government and the restrictive approach symbolised by the closure of the Balkan road, all the while fearing that this process may be complicated due to  the populist contestation.

After this introduction, nine workshops will follow, gathering academics and high level practitioners from Member States, the European Commission, the European External Action Service and EU agencies (Frontex and EASO), as well as judges and attorneys, representatives of NGOs and international organisations (UNHCR, ICMPD). The diverse issues on the agenda follow three streams, each proposing a different approach in order to critically analyse policy and legal developments in 2016 while also reviewing ongoing initiatives.

Stream 1: “Cooperation between Member States”

• Commissioner Avramopoulos for Home Affairs and Migration said on 6 October 2016: “From now onwards, the external EU border of one Member State is the external border of all Member States – both legally and operationally. In less than one year we have established a fully-fledged European Border and Coast Guard system, turning into reality the principles of shared responsibility and solidarity among the Member States and the Union”.

The words highlighted in this quotation are highly challengeable because the European Border and Coast Guard (EBCG) may indeed be a new model, but it is unfortunately built on an old logic according to which each Member State remains in control of its external borders. It represents a progress on some aspects, but remains in contradiction to Article 80 TFEU (see below) and is not more than another small step forward, in line with the ‘incremental method’ of the European integration process. Actually, the name Frontex remains in use as if no overhaul of the policy had taken place, the new Agency being a kind of ‘Frontex plus’ rather than a genuine EBCG.

Workshop n° 1 devoted to the European Border and Coast Guard will bring together academics among the best specialists in the area, such as Rector Jorg Monar and Jorrit Rijpma, author of a report on the Commission proposal for the European Parliament, who will engage on a critical dialogue with practitioners. The discussion about the level of ambition for the EBCG Agency is also relevant for those interested by the supposed transformation of the European Asylum Support Office (EASO) into a ” European Asylum Agency” that is currently debated by the Parliament and the Council on the basis of a Commission proposal.

• Workshop n°4 is centered on EU Agencies and hotspots seen as part of the gradual emergence of a European integrated administration. Hotspots (analysed on this blog by Francesco Maiani) have been conceived as registration and relocation centres, but have evolved into detention centres for processing asylum claims and returning people. This workshop does not aim at underlining the legitimate concerns for human rights that this situation generates (as underlined by a report by ECRE) but will rather analyse how national administrations collaborate with EU agencies such as Frontex and EASO under European administrative law. The workshop places the emphasis on Greece, where joint forms of asylum processing are emerging in hotspots, and where the involvement of Frontex and EASO in migration management processes and asylum processing has been officially recognised in Greek national law.

This raises complex legal questions in EU and national law that will be introduced by Lilian Tsourdi who will present a cutting-edge research as the outcome of her PhD titled “The Administrative Governance of the CEAS”, presented at the Université libre de Bruxelles (ULB) last December where she underlines the limits of the European administration in establishing a Common Asylum system.

• Workshop n°7 is about relocation. The failure of this new scheme is blatant despite the recent increase in the number of relocated asylum seekers, as signaled by the Commission in its 8th report on the issue. Relocation has generated political controversies, to the point that two Member States decided to ask the Court of Justice for their annulment).

The workshop aims to explore the reasons behind the failure of this new instrument of physical solidarity between Member States from a legal and technical point of view. This is significant because the Commission has included a permanent relocation mechanism in its proposal for Dublin IV and because the issue of solidarity remains high on the political agenda of the Maltese Presidency after the failed attempt of the Slovak Presidency to promote its idea of flexible or effective solidarity. The EU is thus still desperately searching for solidarity in EU asylum and borders policies, as explained in the papers and podcasts published after our last annual conference in 2016.

Stream 2: “Protection of persons in the European Union”:

• Workshop n° 2 will examine the judicial protection of migrants detained for the purpose of return. It is well known that the Return Directive allows for detention up to a maximum of 18 months, but several conditions have to be fulfilled to justify such a long period. Judicial scrutiny clearly is an essential element to ensure that the legal limits and procedural guarantees are respected in practice. The results of two research projects (“Contention” and “Redial”) involving a European network of judges carried out by the Odysseus Network with the Migration Policy Centre (MPC) of the EUI and the financial support of the European Return Fund will be presented. These research projects investigate especially the implications that the status of judges (administrative, civil, criminal) may have on their control of the administration and at judicial interactions, not only vertically as in the procedure of preliminary rulings involving the Court of Justice, but also horizontally between judges of different Member States. A database providing access for both projects and to hundreds of national cases is open to the public.

• Workshop n° 5 will look at the next generation of asylum legislation proposed by the European Commission in 2016 (apart for the proposal on Dublin IV analysed separately in the next workshop). One has to remember that the completion of the CEAS was celebrated in 2013 with the adoption of the second generation of asylum instruments. The proposals for more legislation therefore appear as a surprise.

Actually, the Commission does not anymore propose harmonisation of national law by means of directives but rather unification through regulations on qualification and asylum procedures. One should however check if the content of those proposals keep these promises. Moreover, as legislation appeared almost useless during the “crisis”, one may wonder if more legislation is really what the EU needs. The CEAS is not limited to legislative harmonisation but encompasses other important elements such as institutional cooperation between Member States – an issue that has already been tackled in the book “Reforming the Common European Asylum System: The New European Refugee Lawpublished by the Odysseus Network in 2016 as the outcome of our 7th European Conference.

The present workshop aims at discussing the policy model inspiring the Commission proposals regarding reception conditions for asylum seekers, qualification of persons eligible for protection and asylum procedures, on the basis of a report presented by Steve Peers, who is one of the most productive academics in Justice and Home Affairs (and, in particular, the founder of the successful blog EU Law Analysis, where migration and asylum issues are often covered). Vincent Chetail (the Odysseus Member for Switzerland) has already opened the debate by publishing a paper  “looking behind the rhetoric of the “refugee crisis”, analysing the seven legislative proposals presented by the Commission and concluding that the reform  will fail because it exacerbates the systemic flaws of the CEAS as underlined by Spijkerboer (see above).

• Workshop n° 8 will be devoted to an analysis of the Commission proposal for a Dublin IV Regulation. The Dublin system appeared to be dead during the period of the ‘crisis’, but it has apparently resurrected with the Commission proposal for a Dublin IV Regulation as if it really was the “cornerstone” without which it it is impossible to conceive a CEAS. The system of responsibility distribution behind Dublin is however considered a big part of the problem not only in times of crisis (Germany is considered by some lawyers as having violated EU law by deciding not to apply anymore the Dublin system during the night of 4 to 5 September 2015), but also under normal circumstances (there is indeed a contradiction in a system of responsibility determination built for preserving the national competence of Member States for the implementation of a Europeanised common asylum system). The problem is even bigger as the proposal for Dublin IV could, if adopted, worsen the defects of the Dublin III Regulation currently applicable, following analyses published on our blog (see Hruschka’s blog in English or in French, and Di Filippo’s blog in English only).

The debate will be introduced by Francesco Maiani  who is the author of a report prepared for the European Parliament on the Dublin IV proposal, that includes also ideas for alternative models to the Dublin system. In order to learn more about the negotiations between the Council and the European Parliament regarding the Commission proposal, we have the honor and pleasure to announce that the workshop will involve MEP Cecilia Wikström, Rapporteur on Dublin IV for the LIBE Committee.

Stream 3:   “Management of migration flows”:

• Workshop n° 3 will scrutinise the developments of a second generation of European databases after the creation of the SIS, VIS and Eurodac  due to the transnational terrorist attacks against several EU Member States. As already underlined on our blog, EU legislation appears to have recently acknowledged the need for massive surveillance with the adoption of the PNR Directive, the systematic check of all EU citizens at the crossing of external borders against the Schengen information System (SIS) to detect movements of foreign fighters. Further to be mentioned are the proposals for the creation of a system registering all third-country nationals upon entry and exit at the external borders (EES) and of a EU system of travel authorisation (ETIAS) that will cover all persons not registered in the Visa Information System (VIS), imitating the ESTA system put in place by the US.

This evolution from “securitisation” of migration to “securitisation” of mobility resulting in a blurring of the distinction between citizens and foreigners will be analysed on the background of the groundbreaking jurisprudence that the CJEU is forging nowadays in cases like DRI, Schrems and Tele2 Sverige. This will be done by a research duo from Queen Mary University in London made of Valsamis Mitsilegas and Niovi Vavoula. What is at stake seems to be the compatibility of mass surveillance as such with the European Charter of Fundamental Rights. If this has finally been accepted by the political actors (in particular recently the European Parliament), judges will sooner or later have to rule explicitly about this issue that is (or was?) one of the pronounced differences between the EU and the US up to date.

• Workshop n° 6 will be devoted to the proposal reforming the existing Blue Card Directive that is almost the only point of the European agenda regarding legal migration. After having considered that new legislation was too early in a report of 2014, the Commission pushed by its new President presented in June 2016 a proposal to reform the Directive. It has been positively evaluated on our blog, but what is at stake now is the compromise on the Commission proposal that will be negotiated between the Council and the Parliament. The hope is that its content will not be too hollowed out by the Council, which explains the past failure of Directive 2009/50. The change from the intergovernmental to the “community” method introduced by the Treaty of Lisbon for the area of legal migration should allow the European Parliament to fight under the co-decision procedure for a compromise with a real added value.

Philippe De Bruycker will introduce the workshop by analysing the Commission proposal and the respective positions of Council and Parliament before a discussion with a rich panel of practitioners from the OECD, the bar, the Belgian Aliens Office and the Unit for Legal Migration and Integration from DG Home affairs of the European Commission. Among the key issues are the definition of a highly skilled worker (is the target not too large so that the mechanism to favor admission will not be ambitious enough?), the acceptance of a true harmonisation with the replacement of national schemes by a real European one (will Member States accept to limit the competition between each other?) and the provisions on the mobility of Blue Card holders to allow them to benefit from freedom of movement in line with the objective of article 79, 2, b) TFEU (will the EU manage to extend freedom of movement to highly skilled third country workers as it did for intra-corporate transferees (ICTs) under Directive 2014/66, in a moment when even the freedom of movement of EU citizens is challenged, inter alia by Brexit?). In case of success, the EU will still have to explain to the rest of the world that it has this time created a real Blue Card and not a fake one like Directive 2009/50

• The so-called “external dimension” is at the core of the European agenda on migration, with the EU more than ever looking for an external solution to what is perceived as another potential “migration crisis’. Keeping in mind that the deal with Turkey of 18 March 2016 considered – rightly or wrongly – as the element that solved the crisis and as a blueprint for new agreements with other countries, has already been the object of numerous analyses (also on the Odysseus blog), workshop n°9 will focus on the new European Partnership Framework with third countries presented by the Commission in a Communication of 7 June 2016. The five main target countries under this scheme (Senegal, Nigeria, Niger, Mali, and Ethiopia) located along the road passing through sub-Saharan countries towards Libya, reflect the EU’s fear that this failed State becomes an increasingly important departure point for maritime migration using Italy as an entry door to the EU.

Even for observers paying careful attention to policy developments, this partnership framework appeared by surprise because it replaced without explanation the Global Approach to Migration and Mobility that was the framework previously governing the external relations of the EU and its Member States in this area. It seems to be a less global approach than before as it puts a greater emphasis on the idea of “stemming the flows” through the fight against illegal migration. The nexus between migration and development again seems to be at the core of the debate with the come-back of several questions like: does more development really mean less migration? Is it wise to use development aid to sanction third countries that are not ready to cooperate in the fight against illegal migration? Is development money diverted to the management of  migration flows through new financial instruments? (see an extremely critical report of the European Parliament on the EU Trust Fund for Africa and its implications for development and humanitarian aid). Finally, it is the meaning and limits of the notion of development in relation with migration policy that is at stake, as illustrated by the case C-377/12 of the Court of Justice about its link with the issues of readmission of illegal migrants.

The workshop will benefit from the participation of high level practitioners such as Dr Georgia Papagianni from the European External Action Service (EEAS) who has contributed to the first and second reports evaluating the results of the new partnership framework. The controversial issue of “humanitarian” visas as a means for asylum seekers to join the EU in a legal and safe manner, which is at the core of the discussions between the Council and Parliament regarding the revision of the European Visa Code, will also be presented by Violeta Moreno-Lax, who was awarded this year the Odysseus prize for the best publication by a young researcher. The recent refusal of such visas by Belgium to a Syrian family generated a question for a preliminary ruling by the Belgian Council of Aliens Law Litigation that will give rise to a potentially very interesting case from the CJEU in the next months under the urgent procedure. It is already documented by our colleague Thomas Spijkerboer, the Dutch Member of the Odysseus Network, who gave a legal advise in this case.

The conference will end with a second plenary session during which high level EU representatives will debate on the basis of the conclusions of the three streams of workshops. The hope that the conference will contribute  to understanding whether 2017 could be the year in which EU Member States will manage to “broaden EU consensus on long term migration policy and apply the principles of responsibility and solidarity” following one of the objectives of the Bratislava Roadmap. The European Council stated in its conclusions of 15 December 2016 that “sustained efforts over the past months to review the CEAS have shown some areas of convergence, while other areas require further work. (…) the Council is invited to continue the process with the aim of achieving consensus on the EU’s asylum policy during the incoming Presidency”. One can easily guess that “the areas requiring further work” actually stand for those that remain the object of strong and persistent divergent views, meaning essentially solidarity.

The supposed “principles of responsibility and solidarity” used by the European Council to build its political reflection on the future of the EU, are not in line with the Treaties, according to which the migration and asylum policies are governed by “the principle of solidarity and fair sharing of responsibility” (article 80 TFEU), which is not exactly the same as I have argued in this blog. Observing such misunderstanding (or manipulation?) of one of the key constitutional principles of the Area of Freedom, Security and Justice by the Heads of State or Government who have simply scratched some words of a Treaty provision does not lead to much optimism. Nonetheless, I would be pleased to acknowledge that I was wrong when we meet at the beginning of 2018 for the next Odysseus Annual Conference.

Even if we know that it is not about a refugee or asylum crisis but a deeper and even existential crisis for the EU, it is nevertheless positive that the more acute moments are beyond us because of the reactions in favor of building fortresses that they provoked at national level. It could be that the years 2015-2016 will later appear as another crisis that allowed the EU to progress towards more integration. However, continuing with business as usual is risky because it is unlikely that the EU will be ready to face another crisis with the reforms engaged up to date.

Sooner or later, the EU Member States will have to consider crucial and profound changes because the classical principle of indirect administration, according to which EU legislation is implemented by Member States, does not work anymore for migration and asylum policies, in particular because the Member States do not face the same difficulties in this area. Intrinsically linked to the lack of solidarity that appears extremely difficult to overcome, this is a challenge of institutional nature that the EU will have to face in the future, which brings us back to the subject of the introductory session devoted to the type of crisis the EU is passing through. Searching for solutions to an existential crisis in the outside world through a so-called “new” partnership framework with third countries can maybe provide a period of rest, but the EU will eventually have to find real solutions within its Member States if it does not want to fail in the face of present and future challenges.