Asylum in Europe: Conditions for a Common Pact

Europe’s policy on asylum is marred by blatant geographic imbalances whereby certain countries accommodate asylum seekers in far greater numbers than others, with Greece and Cyprus leading the way (see our up-to-date indicator, maps and graphs and blog from 2019). In 2020, the European Commission put forward its New Pact on Migration and Asylum as a means of remedying these imbalances, which, paradoxically, have only been exacerbated by the Dublin agreement. This blog post will examine the key criteria required to make the pact a success.

The European Commission introduced the New Pact on Migration and Asylum in September 2020, under which the provisions agreed in Dublin would be abrogated (or at least amended) in favor of a mechanism whereby applications for asylum are redistributed following an initial assessment in the country of arrival. Countries wishing to host fewer people would instead be tasked with returning failed applicants or providing logistical resources. This “flexible” take on solidarity may meet opposition from the Visegrád Group (Hungary, Poland, the Czech Republic and Slovakia), while other nations could also prove reluctant to commit to hosting people. True to form, Swiss authorities appear to be cautiously in favor of implementing this kind of redistribution approach.

Several countries already operate similar systems for geographically redistributing asylum seekers and/or existing refugees; such systems often work to a satisfactory extent, in spite of the Herculean effort it can take to implement them. This is the case in Germany, for example, which operates the “Königstein key” system between federal states (the “Bundesländer”), and on an intercantonal level in Switzerland. That said, implementing this kind of system across 27 countries, ideally including Norway, Switzerland, and in time, the United Kingdom and the Balkan nations, is a different matter entirely. A project of that magnitude should only be implemented if it meets the following four requirements, designed not only to ensure its feasibility from an administrative standpoint, but to make it acceptable to authorities, local populations and the asylum seekers themselves.

Uniformity of processes and standards for deciding an applicant’s status

The variability in terms of current rates of acceptance (refugee status) or protection (refugee status / subsidiary statuses) for certain nationalities (Afghan, Turkish, etc.) indicates that host countries differ in how they evaluate the grounds for granting protection; this would not be tolerated under a common asylum policy, even where such discrepancies stem in part from differences in the profiles of applicants of the same nationality. Such differences were also observed in Switzerland prior to the nationwide standardization of the asylum application process. To overcome this challenge, Europe will need to go far beyond its current “Qualification Standards Directive” and establish a harmonization and supervisory authority to complement European Court of Justice case law, which to date has been found wanting. Issues surrounding the right to appeal must also be taken into consideration, as must the right to due process and what happens at upstream borders. Indeed, one of the most serious failures of Europe’s policy on asylum has been the denial of the right to due process of those stuck in EU neighbor states (so-called “pushbacks”).

Determining when relocation should occur

The relocation of refugees could potentially take place at one of two stages in the process. Upstream, people would first have to travel to their allocated host state, wherein the bulk of the process would be carried out; this corresponds to the “old Swiss model”. While this model is more time-efficient and eliminates the need for heavy border infrastructure, it would also involve substantial transfers of people across the continent. Downstream, people would be relocated once their request for asylum had been assessed at one of many initial evaluation centers (commonly referred to as “hotspots”) located in the EU neighbor states in which the majority of applications for asylum are made. This second option forms the basis of the “new Swiss model”, in which federally operated centers are responsible for (at most) the first 140 days of the process before redistribution to one of the cantons, and seems to be the Commission’s preferred option. This type of system does indeed appear to be the most appropriate for Europe, but would entail a much more substantial investment in administrative infrastructure within the states that host these “hotspots”.

Scope for individual mobility

Before moving tens of thousands of people across Europe, it should be ensured that family ties are taken into account in a more flexible way than allowed for under the Dublin system. Immediate assignment of a location can be justified if the person in question does not have a preferred destination, but the time frame would have to be clarified: once an asylum seeker has been granted protection, are they then allowed to relocate to a different country of residence? If so, under what conditions (e.g. economic independence)? And on what timescale? Will a distinction be made between different forms of protection (temporary admission or refugee status), like in Switzerland? The European Commission is considering a settled status mechanism, given the possibility of significant secondary migration once people have been granted refugee status, but the form this could take is still hazy and will be politically sensitive.

Room for maneuver for national governments

Given that certain EU member states are opposed to the idea of accepting more asylum seekers, the idea of “common but differentiated responsibility sharing” seems the logical choice. However, assigning to these countries the role of returning people (cynically referred to as “sponsored returns”) seems problematic and would require strict monitoring to safeguard individuals’ basic rights. Asking certain countries to help bolster operational capacities, as well as imposing financial penalties significant enough to ensure true solidarity throughout Europe (as is now required by ECJ case law), appears to be more realistic in the medium term.

Conclusion

Having examined the extent of the current imbalances and the innumerable challenges associated with implementing a common policy, this newly suggested system of asylum feels something like a “last throw of the dice”. Here’s hoping that the relative lull in terms of the number of new asylum seekers gives the Union the chance to start working again on its project for a common asylum policy, without having to act out of urgency like it did in 2015.

Etienne Piguet is a Professor of Geography at the University of Neuchâtel, project leader of the research project Migrant Entrepreneurship, and vice-president of the Federal Commission on Migration FCM/CFM/EKM.

This is a repost of an article that has been written in French in Asyl – Revue suisse pour la pratique et le droit d’asile and is a follow-up of a blog contribution published in 2019.

References :
– Piguet, Etienne (2021). Comment partager la responsabilité de l’asile en Europe ? Asyl – Revue suisse pour la pratique et le droit d’asile (1), 17-21.
– Piguet, Etienne (2021). Quelle serait une répartition équitable des réfugiés en Europe ? nccr – on the move, Migration-Mobility Indicators. Neuchâtel: nccr – on the move, 2021.