Setting the EU scene – a management crisis, not a refugee crisis

The EU can and must show leadership in managing refugee movements effectively in accordance with international law.

By Sophie Magennis

In 2015, more than one million refugees and migrants undertook dangerous journeys across the Mediterranean sea in search of safety. While this figure was exceptional, it needs to be put into perspective. That same year, according to UNHCR figures, 65.3 million people were forcibly displaced worldwide. 86 per cent of the refugees under UNHCR’s mandate were hosted in low- and middle-income countries close to situations of conflict.

Despite the fact that only a minority of those fleeing their homes came to the EU, the member states’ capacity and the Common European Asylum System (CEAS) were severely tested. Many EU member states proved to be insufficiently prepared. The Dublin system faltered. Gaps in the implementation of the other CEAS instruments became apparent. This situation contributed to secondary onward movements within the EU. Despite attempts to address the situation in a concerted manner, many EU member states took unilateral measures. Those measures were predominantly restrictive.

In an attempt to address the situation in a concerted manner, in the course of 2015 and 2016, the European Commission released proposals to recast CEAS instruments. Considering the need for a revitalized CEAS, UNHCR welcomed the launch of the reform process and, in particular, the Commission’s aim of further harmonizing the CEAS. The remaining differences in the quality of asylum practices, reception conditions and integration-related measures are all shortcomings that need to be addressed urgently. However, in UNHCR’s views, aspects of the Commission’s proposals do not go far enough.

Reforming the CEAS, including Dublin, through better management, partnership and solidarity

In line with UNHCR’s mandate, and building on some elements of the current CEAS instruments and of the European Commission’s proposals, in December 2016 UNHCR put forward a number of recommendations. They can be found in the paper “Better Protecting Refugees in the EU and Globally”. With these recommendations, UNHCR aimed at outlining a principled, pragmatic and common approach to manage refugee movements effectively and in accordance with international law. The proposals are also informed by the lessons learned over recent years.

In line with the commitments that all EU member states and institutions made in the New York Declaration, as well as with the European Agenda on Migration, UNHCR proposed a comprehensive approach. UNHCR’s proposals focus on four priority areas: an EU that is engaged beyond its borders to protect, assist and find solutions; an EU that is prepared; an EU that protects through a well-managed common asylum system; and an EU that integrates refugees. These four areas are interconnected and need to be advanced in parallel.

First, EU member states would register persons arriving irregularly in a common EU registration system. This system would build upon Eurodac and other databases to improve data collection and management. A common EU registration would ensure orderly processing of arrivals, security screening and access to protection, and would support family reunion within the EU.

Family reunion would be facilitated immediately after the registration phase. While maintaining family unity, this approach would contribute to reducing onward movement. Indeed, to best address onward movement, it is key to take into account its drivers. Evidence has shown that many asylum-seekers who move onward irregularly do so because of the difficulties to reunite with their family in a regular manner.

Efficient, fair and streamlined asylum determination procedures would help managed mixed arrivals of refugees and migrants. Asylum-seekers with manifestly well-founded or unfounded claims would be channelled into accelerated procedures. When EU member states would be under particular pressure, EU Agencies would support them in carrying out the procedures. The accelerated procedures would provide quick access to international protection for those who need it. They would also facilitate return for those who do not. All the other cases would be processed through regular asylum procedures.

This approach focuses on determination procedures within the EU. By contrast, the introduction of mandatory admissibility procedures based on the safe country concepts would contribute to restricting access to the EU’s protection space while shifting responsibility and burdens upon non-EU countries.

A fair and workable distribution mechanism would guarantee intra-EU solidarity and responsibility sharing. When an EU member State receives more asylum-seekers than a percentage previously agreed at EU-level, a mechanism would be triggered to distribute cases above this share to other EU member states. UNHCR is of the opinion that incentives, rather than sanctions, would foster compliance with this system, thereby reducing irregular onward movement.

Consequently, to the extent possible, the distribution mechanism would take into account the asylum-seekers’ extended family connections, substantive links to EU member states (incl. previous work, studies) and preferences.

Additionally, after six months in the member states which granted protection, refugees who have the means to be self-reliant would be able to establish themselves in other member states. Member states also need to be incentivized to comply with the proposed system. For example, the share of asylum-seekers and refugees they would be responsible for could be reduced as a reward for high quality and fast processing of a significant number of cases.

A common and specific approach would be in place for unaccompanied and separated children, with the best interests of the child at its core. Notably, unaccompanied and separated children would be identified quickly, registered, immediately provided with safe and age-appropriate care arrangements, including a guardian. Together with partners, UNHCR has been consulting with practitioners and policymakers to support EU member states and institutions in putting these standards into practice.

Finally, an efficient system for return for those found not to be in need of international protection after a fair procedure would need to be in place. An effective return system, in line with international standards, is essential to build trust in the integrity of the asylum system.

Making the most of existing instruments, pending their reform

The reform of the CEAS provides a unique opportunity to address the gaps and shortcomings that became apparent in 2015 and early 2016, while fostering a protection-oriented and solidarity-based approach. In that context, UNHCR will continue to engage with EU member states and institutions, notably on the basis of the aforementioned proposals.

Yet, pending the reform of the CEAS instruments, and in particular the Dublin Regulation, existing instruments have the potential to foster solidarity in the interest of applicants and member states alike. This is particularly the case for the Dublin III Regulation, as well as for the emergency relocation mechanism.

UNHCR’s forthcoming study on the Dublin III Regulation shows that the current gaps in its implementation contributed to both the applicants’ and the member states’ lack of trust in the system. This came with adverse consequences on the speediness and outcome of Dublin procedures. However, the Dublin Regulation is the only instrument that has the potential to assist in reuniting families within the EU while fostering cooperation between EU member states. This would require member states to allocate sufficient resources for the system to function. UNHCR also encourages member states to use their discretionary powers under the regulation on compassionate or humanitarian grounds, in particular to keep or bring together extended family relations.

The emergency relocation mechanism is an unprecedented initiative to show solidarity to frontline EU member states in a way that is also in the interest of asylum-seekers. In that context, UNHCR calls on member states to pledge the full amount of relocation places foreseen in the Council’s Decisions without restrictive preferences. It is also key that member states urgently undertake initiatives aimed at streamlining relocation procedures. Finally, member states should step up the relocation of vulnerable persons, notably unaccompanied and separated children.

Conclusion: a two-step way forward

As part of any comprehensive approach, and in line their commitments to global responsibility-sharing, EU member states should be able to offer access to protection to those who need it within the EU, through a well-managed common asylum system. The reform of the CEAS instruments will be key to meeting that objective.

However, pending a reform, EU member states need to make a full use of existing instruments, in particular the Dublin III Regulation and the emergency relocation schemes. These mechanisms have the potential to foster solidarity in the interests of applicants and EU states alike. The EU can and must show leadership in managing refugee movements effectively in accordance with international law.

Sophie Magennis is Head of the Policy and Legal Support Unit at UNHCR’s Office for Europe in Brussels. She is an Attorney and Counsellor at Law at the New York State Bar and holds a European Master’s Degree in Human Rights and Democratisation from the European Inter-University Centre in Venice, Italy.

This article was originally published by OpenDemocracy and is available by clicking here. The views expressed in this article do not necessarily reflect the views of TransConflict.

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