Abstract [1] :

I. Preventing human catastrophes associated with illegal migration

After two catastrophes that occurred in April 2015, in which nearly 1,200 people died, successive shipwrecks[7] led to a tripling in the resources devoted to FRONTEX operations (Triton and Poseidon) in the Central and Eastern Mediterranean. These operations helped save 250,000 human lives in 2015[8]. However these are emergency actions that do not impact the causes of the crisis and which might also be interpreted by smugglers as an encouragement to launch boats with the latter counting on rescue. These measures did not however prevent 3,771 deaths in the Mediterranean in 2015.

From a more structural point of view the issue of opening channels to legal access to the European Union for people seeking protection has been raised[9]. The Member States and their associates adopted a recommendation in July 2015 that aimed to resettle 22,000 people who were in clear need of international protection over a two-year period from third countries (Lebanon, Jordan and Turkey notably)[10]. Moreover on 15th December 2015 the European Commission put forward a voluntary humanitarian admission measure (humanitarian visas) from Turkey which might involve up to 80,000 people per year[11]. In addition to that, under the joint EU-Turkey declaration dated 18th March 2016 the European Union and Turkey notably committed to a mechanism that aims to substitute irregular entries by legal access channels to the European Union, which could involve up to 72,000 Syrian refugees registered in Turkey. In April and May 2016 this measure enabled the reduction of the number of deaths to 10 and 0 in the Eastern Mediterranean in comparison with 275 deaths in January, 46 in February and 45 in March[12]. More generally the Commission announced that it would put forward a permanent resettlement mechanism in 2016.

However, the European Union is not competent in terms of resettlement, since these programmes depend on the agreements between the Member States and the HCR. Moreover, resettlements provided for under the EU-Turkey Agreement of 18th March are the counterpart for the dispatch of illegal migrants from Greece to Turkey in now contested circumstances[13]. The scope of the resettlement programmes provided for also seems limited, if, in the context of the conflicts in the Union's southern neighbourhood, the number of asylum seekers is said to lie between 600,000 to a million per year. The precautions taken by the Member States regarding legal channels to access the European Union can be explained by their desire to retain control over sustainable numbers of arrivals for their asylum systems that are already saturated by these spontaneous flows.

Beyond the protection of human lives the second biggest challenge is to improve the internal functioning of the Common European Asylum System.

II. Strengthening the effectiveness of the common European asylum regime

Two challenges have to be addressed in this area given the influx of migrants and asylum seekers: the distribution of asylum seekers amongst the Member States and the rapid, effective identification of people who really need international protection.

1. Improving the distribution of asylum seekers between Member States

1.1. The principle of responsibility of the first State of entry established in the Dublin regulation was severely challenged in 2015.

Italy and Greece have indeed witnessed entry of 154,000 and 885,000[14] illegal migrants respectively. Deeming that they did not have the capacity to register and receive all of these migrants and that European solidarity meant better distribution of asylum seekers with other Member States, these two countries did not respect the Member State of first entry rule as they only registered 83,000 and 11,000 new asylum requests[15]. The main final destination countries - Germany (441,000 asylum requests in 2015), Sweden (160,000), Austria (85,000)- have asked for the introduction of greater solidarity rules regarding the distribution of asylum seekers. Other Member States, that have been less affected by the migratory crisis - Poland (10,000 asylum seekers in 2015), Czech Republic (1,200), Slovakia (270) - have strongly adhered however to the principle of responsibility of the first State of entry that is designed to guarantee this country's commitment to the control of the common external borders. As a result they only accept the relocation mechanism on a voluntary basis and after having been guaranteed that efforts will be made by the country of first entry to address the flows of asylum seekers.

This deep rift helps explain the mediocre result produced by the two emergency decisions[16] adopted by Council in September 2015 that aimed to relocate towards other member states a total of 160,000 people clearly in need of protection, over two year period, from Italy and Greece (1,500 people effectively relocated on 13th May 2015 after seven months of relocation work[17]); it also explains the poor progress made in negotiations over a Commission proposal which aims to create a permanent crisis relocation mechanism between Member States[18].

The proposal to revise the Dublin Regulation put forward by the Commission on 4th May[19] does not challenge the principle of responsibility of the first State entry but puts forward a corrective mechanism that triggers automatically when the number of asylum requests exceeds 150% of a reference figure. Financial compensation (250,000 € per person) would then be demanded of a Member State that wants to be exempted from this new corrective mechanism.

Debate firstly opposes those who strongly challenge the principle of the responsibility of the country of first entry to the benefit of a centralised asylum seeker distribution mechanism, against those who remain attached to the principle of the responsibility of the country of first entry; then it opposes those who would accept relocations from the destination Member States and those who are against this, because it would imply acknowledgement of the end of the responsibility of the countries of first entry; moreover there are those who defend and those who contest the automatic nature of corrective mechanism and its pace (after greater or lesser effort demanded on the part of the countries of first entry). The field of application of this proposal, which would enable the relocation of people who did not appear to be in clear need of international protection, is deemed too wide by some Member States, because it would be costly to relocate people whose asylum admission prospects were uncertain. Conversely the proposal to oblige the States of first entry to assess the admissibility of all asylum requests, justified by the wish only to relocate people whose asylum request is admissible, is deemed by the latter countries to be too cumbersome and contrary to the idea of solidarity. The proposal to introduce financial compensation in the event of exemption from the corrective mechanism is largely rejected by most Member States. Hence the quest for greater solidarity between Member States in the distribution of asylum seekers will not be easy. And even if this were to work, it might be undermined by secondary movements from one Member State to another by asylum seekers and protected people.

1.2. The fight to counter secondary movements

Secondary movements can firstly be explained by an inadequate lack of harmonisation in the rules, which is linked to the numerous facultative clauses in the "procedures" "reception" and "qualification" directives: existence or not of an accelerated procedure, a national list of safe countries of origin, more or less generous conditions of reception, with faster or slower access to the labour market etc. And since the right to asylum granted to a person is always the result of an individual, sovereign decision, the way in which it is implemented varies from one Member State to another (91% asylum admission in Bulgaria versus 11% in Latvia in 2015)[20].

In order to overcome this, the Commission is firstly trying to achieve greater harmonisation in the national asylum systems. In September it put forward the establishment of a common list of safe countries of origin (SCO)[21], in which Human Rights are deemed satisfactory, thereby enabling the application in all Member States of an accelerated procedure or a procedure on the border for all the citizens of these countries. Likewise the Commission plans to transform the "asylum procedures" directive into a regulation that would include uniform, direct application rules, notably regarding the use of concepts of safe third countries of first country of protection in which a person received or might receive adequate protection[22]. The harmonisation of asylum admission criteria might notably lead to conditioning access to a long term asylum permit on a reassessment of the need for protection. The Commission is also proposing the transformation of the European Asylum Support Office into a fully-fledged European Union Asylum Agency: its mandate would be strengthened so that it might ensure that Member States implement the Common System's rules in a harmonised manner and in the event of serious dysfunction, intervene in a Member State.

Finally the Commission is proposing, as part of its review of the Dublin Regulation, to sanction asylum seekers who make secondary movements by withdrawing material advantages associated with their reception, as well as implementing an accelerated asylum procedure. At the same time the Member States would also be obliged to take back someone benefiting from international protection, who has illegally been living in another Member State.

The very idea of countering secondary movements and therefore not to take into consideration asylum seekers' and protected persons' wishes raises debate both amongst the NGOs supporting their rights as much as it does amongst the Member States most reticent about their reception: both of these groups criticise the impact these coercive measures have on the integration of migrants. At a small scale, a pilot project undertaken under the relocation programme based in Malta between 2009 and 2011[23] did however try, with some success, a matching experiment between the wishes of the people to relocate and those of the Member States. Fundamentally we might suppose that on a large scale the mutual distribution of asylum seekers between Member States would necessarily go against the consideration of the people and in this case, the integration of protected people must depend on other types of measures.

The implementation of sanctions against those who undertake secondary movements might also be debated; this type of measure highlights that not only do asylum seekers have rights, but also obligations towards the Member States that host them. However, migrants are not always totally responsible for secondary movements, since some Member States (Italy and Greece), which have not always had the ability and/or the desire to register them, and therefore to retain them there, have allowed them to organise their transit to other States freely. However the consequences for asylum seekers in the application of this approach of "no registration, no rights" seem particularly serious. Indeed it is harder to organise one's defence in a supposedly unfounded asylum procedure if one does not have access to the material conditions to do so (which sometimes means living in the street).

In addition to this we might question the extent of the commitment of all Member States to a process for greater harmonisation of the Common European Asylum System. Those who host many asylum seekers are of course the ones asking for this harmonisation, in order to achieve a more balanced distribution of people seeking protection. But Member States which know that they are less attractive to asylum seekers are also less committed to any harmonisation. Hence the Commission has given up trying to harmonise via a regulation the reception rules governing asylum seekers and the criteria governing the qualification for asylum, since the task appears to be insurmountable. In anticipation of this obstacle some countries that attract migrants and asylum seekers (notably Germany, Sweden, Austria and Denmark) have started tighten the rules governing their national asylum processes in order to make them less attractive (less attractive reception conditions, toughening up on the conditions for family reunion, a shortening of the length of time for which protection is granted etc.). The attachment the Member States have for their sovereign right to grant asylum, or not, has also led to opposition to the creation of a European Asylum Agency, which in its bid to harmonise the approach to asylum, would interfere in terms of this right.

Finally we should stress that the total harmonisation of European asylum rules alone might not settle the issue of secondary movements of people in quest of protection, which also finds explanation in the existence of established diaspora and in the Member States' varying degrees of economic attractiveness.

2. Identifying as rapidly and as effectively as possible those really in need of international protection

Indeed in 2015, it was deemed that 52% of those who asked for asylum were eligible for immediate international protection on first instance and 14% on appeal, which also means that 30 to 40% of asylum requests were deemed unfounded[24].

2.1. Lessons to be learned

For the rapid and secure identification of the people to protect, undoubtedly we have to draw the lessons from the functioning of the hotspots introduced in Greece. Existing as open centres until 20th March 2016, they did not attract migrants who preferred to continue their journey, without the Greek authorities preventing them from doing so, to Germany or Sweden. These hotspots also received little support on the part of the other Member States and they did not play the role given to them in terms of identifying people that were clearly in need of protection and or help in their relocation towards other Member States. On becoming closed centres after 20th March 2016 under the EU-Turkey Declaration they were severely criticised by the HCR[25], because they forced detention on asylum seekers, which went beyond the grounds provided for in the "reception" directive2; overcrowded, they offer undignified living conditions for the people who find themselves there and who now however, are requesting international protection on a massive scale. In a bid to relieve these centres Greece has shortened its asylum procedure to 14 days which allows people little time to support their asylum request. Finally, still in a bid to relieve the hotspots, people whose asylum request has been rejected now have to be removed as quickly as possible to their country of origin or towards a transit country (Turkey under the EU-Turkey declaration). The risk of mistakes, the consequences of which can be serious, is high.

2.2. The acceleration of the asylum procedures and the development of inadmissibility raises debate about the development of the quality of the Common European Asylum System

The acceleration of asylum procedures, which is not a novelty[27], is justified by the idea that when an asylum request is deemed unfounded, for example the person is a citizen from a safe country of origin, this should be prevented from blocking the Member State's asylum system to the detriment of other more legitimate requests. The accelerated procedure does not prevent an individual, in-depth assessment of the asylum request but de facto it reduces the possibilities for a person to organise his/her defence.

In the Commission's proposal for a common list of safe countries' of origin this supposition would apply to citizens from the countries of the Western Balkans, for whom the asylum admission rate was low in 2015 (0.9 % to 7.8% in first instance in 2014[28]). But it would also apply to Turkish citizens, in a context in which the democratic development of Turkey is worrying[29]. Debate in European Parliament and possibly appeals to the European Courts (ECHR and ECJ) are therefore to be expected on this issue.

Moreover the proposal to revise the Dublin Regulation (art 3.3) provides to make an assessment of admissibility obligatory regarding all asylum requests in view of the notions of first country of asylum and safe third countries. In this instance the person would always benefit from an individual assessment of his/her asylum request and the right to appeal, but only focusing on the question of the protection that a first country of asylum or a safe third country might give him/her, and not on the basis of his asylum request, i.e. regarding his fears vis-à-vis his country of origin. To date these notions of the first country of asylum or safe third country have only been optional and a certain number of Member States have not transposed them. The proposals to make obligatory these common asylum request admissibility criteria would lead to a drastic restriction to the scope of international protection in the European Union, since only requests on the part of people whom the Union deems would not receive sufficient protection in other third countries would be examined. Here the rationale that governed the EU-Turkey declaration of 18th March 2016 would prevail, but this is already being challenged at the European Court of Human Rights and the European Court of Justice, since the qualification of Turkey as a first country of asylum or a safe third country would appear questionable[30]. However it seems to fall in line with a European political context in which the populist anti-immigration parties are rising to ever higher political responsibilities or a moving closer to it (notably in Denmark, Poland, Hungary, Austria). The polls have also highlighted that immigration on the part of people from countries outside of the EU was the source of negative feelings amongst 56% of those interviewed in May 2015 (59% in November 2015)[31]. If we add the tightening of access to international protection in the Union to the measures that are trying to reduce reception facilities (the sanctioning of secondary movements, harder access to long term asylum permits), we understand that the European Union is oriented towards reducing the quality of the Common European Asylum System. Indeed this involves making the latter less attractive to neighbouring countries, some of which (Tunisia, Jordan, Lebanon) are not signatories of the Geneva Convention or have issued certain restrictions regarding this convention (Turkey), in order to discourage arrivals in Europe. Hence the convergence between Member States seems oriented more to the reduction of the present common asylum system and to try to externalise the processing of asylum, rather than seek solutions based on solidarity between Member States. However, might protection issues be better managed in third countries?

III. Stabilising people in quest of protection closer to their country of origin?

Since 2005 the European Union has supported regional protection programmes (RPP) notably in North Africa (Libya, Tunisia and Egypt) which aim to support the asylum system of third countries that lie close to zones of conflict. The new generation of these programmes in 2015-2016, in the Near East, in North Africa and in the Horn of Africa aims to combine the humanitarian and development approach by supporting the host communities' reception capacities and by making refugees self-reliant. The idea is that integrating refugees can help toward the economic development of the host countries[32]. These concerns are also part of the European aid to countries on the Western Balkans route (1 billion € promised)[33], to Syria's neighbouring countries (Turkey, Lebanon, Jordan), and also in the EU-Turkey action plan on migration as updated by the 18th March EU-Turkey declaration (6.5 billion € since 2011 and 6 billion € promised by 2018)[34] and to that adopted after the La Valletta Summit in November 2015 (1.9 billion € promised)[35]. More generally this approach was confirmed in the Commission's communication on the external dimension of the European migratory and asylum policy[36], which provides for greater funding for third countries that commit to supporting it. From an even greater structural point of view the European Union is trying to develop an "integrated approach" that aims to deal with the in-depth root causes of forced migration which are the origin of flows of people in quest of protection, notably via conflict prevention and resolution actions[37].

This approach is justified by the idea that people seeking protection have not chosen to come to Europe and they can hope to go home as soon as possible to their country of origin. Moreover, stabilising the displaced near to their country of origin prevents them from starting on perilous journeys across the Mediterranean Sea.

However, this requires an agreement on the part of the third countries to improve their reception of more displaced people. But in order to convince them that the reception of migrants, that the European Union does not want, will help in terms of their economic development, financial resources will have to be found or great pressure will have to be exercised. The danger that third countries hosting refugees will instrumentalise migrant flows towards the European Union to obtain major counterbalances from the latter (Cf. Turkish requests for early visa liberalisation, for additional financing, the launch of membership chapters) cannot be ruled out. Beyond this we have to be sure that the retention of refugee populations in third countries does not destabilise these host countries (Lebanon, Jordan, Turkey), which are sometimes extremely unstable. To do this the mobilisation of the entire international community will undoubtedly be necessary.

Reforming the Common European Asylum System in a period of migratory and European crisis, in order to make it more "human" and more "efficient" is indeed a major challenge. European solidarity is at present illustrating its limits, which leads the European Union to seek fragile agreements with third countries. The Member States are tempted to reduce their own asylum systems to make them less attractive than those of their other European neighbours, and the European Union is tempted to reduce the rights granted under the Common European Asylum System, in order to make it less attractive in comparison with asylum systems in other countries.

But in a context in which conflict continues to rage on the Union's doorstep and in which living conditions in the countries that lie close to the zones of crisis remain precarious, the flows of migrants and refugees towards Europe might last long term. After only initially affecting some Member States of first entry and destination, this might now impact a greater number of Member States due to the modification of migratory routes or because of "secondary" migratory flows.

This is why it might be good for the Member States to look beyond their immediate national interests (bookkeeping of the refugees to be hosted, upcoming elections) and see the more long term benefits of the spirit of solidarity: beyond the sharing of the reception of migrants and refugees, it is mutual trust that might be restored, and with this the European project, its values and its meaning which would be provided with renewed energy.