Sur EU Immigration and Asylum Law Policy : Hotspots and Relocation Schemes: the right therapy for the Common European Asylum System?
The Common European Asylum System (CEAS) and the Schengen travel area are in considerable jeopardy. The spontaneous arrival of approximately one million persons in 2015, 90% of them from the top refugee-producing countries of the world, has cruelly exposed their paradoxes and set in motion centrifugal forces that appear to threaten their very existence. The remedy proposed by the EU institutions includes as its centrepieces the “hotspot approach” and intra-EU relocation schemes. Great store is being placed in their implementation. Indeed, Greece is reportedly under the threat of exclusion from Schengen if it does not implement its “hotspots roadmap”. Hotspots and relocation also loom large in the debate on the future of the CEAS. The Commission has already proposed to include them permanently in the Union’s crisis toolbox and reportedly plans to replace Dublin with a permanent distribution key “quasi-automatically” allocating protection seekers to Member States.
While no one denies that the CEAS and Schengen urgently need therapy, it is worth asking whether the EU and its Member States are selecting the right one. I will offer my reflections on this after recalling the context in which hotspots and relocations schemes have been devised, their essential features, and the first experiences made to-date with their implementation.
The arrivals observed throughout 2015 have been concentrated in both Greece – accounting for more than 800,000 in 2015 alone – and Italy. These two “frontline” states, have been faced with the formidable logistical challenge of organising the first reception and identification of migrants. A full implementation of Dublin and EURODAC would have made the challenges even more difficult. Frontline states would have been responsible for fingerprinting all arriving persons, receiving their claims, and in most cases – given that Dublin assigns responsibility primarily to the state of first entry – processing them as well as organizing long-term reception or return.
Many of these responsibilities have remained virtual. A large number of those who arrived on Greek shores in particular have moved on to other Member States via the “Balkan route” without filing a claim or even being identified there. Failed identification in the first state of entry raised security concerns and rendered the Dublin system practically inapplicable vis-à-vis the frontline states – nothing new in respect of Greece, already “excised” from the Dublin system by the European Court of Human Rights in 2011. Destination and transit states reacted with a flurry of unilateral responses ranging from the temporary reintroduction of checks at internal borders, to the erection of barbed wire fences, to the announcement of national ‘caps’ on the number of persons who would be admitted to claim asylum.
The situation is quickly degenerating in a chaotic and acrimonious chacun pour soi, where refugees are literally left out in the cold at the borders of e.g. Greeceand Croatia. The very idea of common policies based on common rules, common interests, free travel, respect for refugee rights and solidarity (see Art. 77, 78 and 80 TFEU) is in tatters.
The ‘Hotspot approach’ and the Relocation schemes: essential features
As part of a package of ‘immediate actions’ to counter the unfolding crisis, the Commission announced a series of measures in May 2015, including the ‘hotspot approach’ and ‘relocation measures’. Both were endorsed by the European Council – nota bene in the perspective of ‘better contain[ing] the growing flows of illegal migration’ inter alia through the ‘reinforcement of the management of the Union’s external border’.
In the European Agenda on Migration, hotspots were presented as an initiative to ‘assist’ frontline states ‘to swiftly identify, register and fingerprint incoming migrants’ – or more enticingly as ‘comprehensive and targeted support by the EU Agencies to frontline Member States’. As per the official definition of the Commission, a “Hotspot” is a section of external borders characterized by “specific and disproportionate migratory pressure, consisting of mixed migratory flows”. The “hotspot approach” means that EU Agencies intervene there in a coordinated manner through “Migration Management Support Teams”, relying essentially on personnel and equipment to be made available by other Member States.
Subject to arrangements to be made on a case-by-case basis, the support that may be provided includes the identification, registration, and removal of apprehended migrants (FRONTEX); the registration of asylum claims, the preparation of files, and the relocation of claimants (EASO); the investigation and prosecution of crimes (EUROPOL and EUROJUST). Not included in this “comprehensive and targeted support” are the reception of claimants and the processing of claims. Returns also remain essentially in the hands (and on the budget) of the host state despite some funding and assistance being available from the EU. The host state must finally submit a “roadmap” setting out “complementary measures” to be adopted to manage the situation (e.g. building reception facilities).
On the whole, notwithstanding the “assistance” rhetoric, hotspots are clearly designed to shift back on frontline states all the responsibilities they (theoretically) shoulder under current EU legislation: to identify migrants, to provide first reception, to identify and return those who do not claim protection, and to channel those who do so towards asylum procedures in the responsible state – in most cases, none other than the frontline state itself.
This is where temporary relocation schemes come in. Established by the two Decisions of 14 and 22 September 2015 as temporary emergency measures under Art. 78(3) TFEU, relocation schemes constitute a derogation from Dublin: until September 2017, the responsibility for a number of applications (66,400 from Greece and 39,500 from Italy) should be transferred to other Member States. In conformity with the goal of the scheme – re-establishing EURODAC/Dublin “normality” in frontline states – applicants may only be relocated after applying for protection there, being properly fingerprinted, and after the responsibility of Italy and Greece under Dublin has been established (Art. 3(1) and 5(5) relocation Decisions). Furthermore, only applicants “in clear need of international protection” are eligible, i.e. those who possess a nationality for which the EU-wide recognition rate at 1st instance is 75% or higher (Art. 3(2) relocation Decisions). Very much in the Dublin tradition, the persons to be relocated have no right to choose the relocation state or to refuse relocation as such.
The policy link with the “Hotspot approach” is made explicit in Articles 7 and 8 of the relocation Decisions: relocation is to be accompanied by “increased operational support”, and may be suspended should the beneficiary state fail to comply with its “Hotspot roadmap”.
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