Refugee Relocation: Nationalist Isolation or European Solidarity?

On 2 April 2020, the Court of Justice of the European Union (CJEU) No. 40/2020, found Poland, Hungary and the Czech Republic to be in breach of European Union law for refusing to comply with the temporary mechanism for the relocation of applicants for international protection.[1] In 2015, the European Commission adopted a legally binding instrument for the relocation of 160,000 applicants in need of international protection from Italy and Greece to another EU Member State by 2017.[2]

This was done not only to ensure that responsibility is shared fairly across EU Member States, but also to show solidarity with Italy and Greece, which have been overwhelmingly burdened by the huge influx of migrants to their shores. Through their relocation, this mechanism entitles selected asylum seekers living in Italy and Greece to have their asylum applications examined by other EU Member States.

Was Relocation Successful?

At the end of the scheme, the European Commission announced that almost all eligible persons had been successfully relocated.[3] However, approximately only 35,000 were relocated which is significantly less than the 160,000 target initially set.[4] This lower figure was mainly due to the EU-Turkey Statement 2016, which reduced irregular migration flows to Greece, and the fact that the relocation mechanism only applied to those nationals who have an average EU-wide asylum recognition rate equal to, or higher than, 75%.[5] The European Commission noted that the majority of arrivals did not meet the 75% threshold and so were not eligible for relocation.[6] However, the low relocation figures and the eligibility criteria applied has been criticised, as EU auditors noted that far more asylum seekers would have been eligible for the scheme if unified asylum-recognition rates had been applied. In fact, only 4% percent from Italy and 22% percent from Greece were relocated, which is very few in comparison to the total numbers of asylum seekers in both countries. In addition, asylum seekers were relocated to countries such as Lithuania and Luxembourg, and because they had no cultural, language, or family ties to these countries, the asylum seekers left for Germany after a few months. Despite the criticisms, the relocation scheme was an important step in bringing almost all EU Member States together to agree on legally binding documentation on the distribution of asylum seekers, and indeed it was evidence of European solidarity.

Image: Commons Wikimedia/sprklg

Is the Court’s Decision a Step Forward?

The CJEU held that under EU law the three Member States had failed to fulfil their obligations to offer relocation, which was mandatory according to the Council’s decision.[7] The Czech Republic, Hungary and Poland refused to abide by the law and did not take in asylum seekers from the 2015 scheme, and the European Commission subsequently launched infringement procedures against them. Although the Court’s decision upholds the principled position on solidarity and burden-sharing among EU Member States, it remains to be seen what the decision will mean in practice. Austria has criticised the Court’s decision and supported these three countries’ strict asylum policies and their rejection of asylum seeker distribution. The governments of the three Member States called the ruling irrelevant and without consequence because ‘since the quota decisions have long lost their validity, we have no obligations to take in asylum seekers’.[8] The Court rejected the argument by saying that despite ‘the expiry of the period of application of the relocation decisions, a declaration as to the failure to fulfil obligations is still of substantive interest, inter alia, as establishing the basis of a responsibility that a Member State can incur, as a result of its default, as regards other Member States of the European Union or private parties’.[9] The Court held that the failure to accept asylum seekers to offer international protection is an infringement of the EU decision adopted by the Council, with a view to relocation on a mandatory basis.[10]

More recently,  the spread of the coronavirus has once again raised the debate on the distribution of asylum seekers across EU Member States, in order to ease pressure on the overcrowded camps and detention centres in Greece and Italy. The European Member States have a responsibility to show solidarity by offering relocation to asylum seekers, and to uphold everyone’s right to claim asylum. However, the nationalistic isolation stance so far adopted by many Member States has resulted in the European Commission being asked to table a new proposal on the common European asylum system. Minister of Europe Karoline Edtstadler (ÖVP) has declared that Europe’s lack of sharing the responsibility means that ‘the mandatory distribution of asylum seekers in the EU has failed’. Austria, like many of its European Counterparts, has rejected the asylum seeker quota and called for an individual response, arguing that accepting asylum seekers should be down to the sovereign decisions of individual member states, rather than the obligatory redistribution of all asylum seekers entering Europe.[11]

Abdullah Yassen is a lecturer in Public International Law and the Head of the Cultural Relations Unit in the International Office at Erbil Polytechnic University. He received a PhD (2016) in International Refugee Law at Newcastle University, his LLM (2010) with Merit in Public International Law from the University of Leicester, a Postgraduate Diploma in International Law from the University of Nottingham (2009), and an LL.B Law (2008) with Honours from the University of Derby. Dr. Yassen is an external legal expert in the field of international protection for the European Asylum Support Office (EASO), and Independent Monitoring Officer at SEEFAR/ Migrant Project. Dr. Yassen has published several papers in the field of forced migration, refugees, and minority rights, and has also participated in many national and international conferences, workshops and seminars.

[1] Judgment in Joined Cases C-715/17, C-718/17 and C-719/17, Commission v Poland, Hungary and the Czech Republic. Available at: https://curia.europa.eu/jcms/jcms/Jo2_7052/en/

[2] European Commission, Council Decision (EU) 2015/1601 of 22 September 2015, Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece, 24 September 2015, L 248/80. Art. 4.

[3] European Commission, ‘Relocation: EU Solidarity Between Member States’ (November 2017).

[4] Nikolaj Nielsen, ‘EU States Fell Short on Sharing Refugees’ (14 November 2019). Available at: https://euobserver.com/migration/146610

[5] This figure is on the basis of EUROSTAT data.

[6] European Commission, ‘Relocation: EU Solidarity Between Member States’ (November 2017).

[7] Ibid. 2.

[8] Remix News, Austria Rejects Migrant Quotas, Backs Hungary, Czechia and Poland’s Strict Asylum Policies (06 April 2020). Available at: https://rmx.news/article/article/austria-rejects-migrant-quotas-backs-hungary-czechia-and-poland-s-strict-asylum-policies

[9] Ibid. 1. Available at: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-04/cp200040en.pdf

[10] Council Decision (EU) 2015/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece (OJ 2015 L 248, p. 80).

[11] Remix News, Austria Rejects Migrant Quotas, Backs Hungary, Czechia and Poland’s Strict Asylum Policies (06 April 2020). Available at: https://rmx.news/article/article/austria-rejects-migrant-quotas-backs-hungary-czechia-and-poland-s-strict-asylum-policies