EU Migration Policy, the 2015 Migratory Influx Crisis and the Inevitable Future of Differentiated Integration

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1 EU Migration Policy, the 2015 Migratory Influx Crisis and the Inevitable Future of Differentiated Integration Brooke Luetgert, Sabancı University Ieva Vezbergaite, Sabancı University 1 Differentiated integration has been one focus of the academic debate on the future of European Union integration for almost thirty years. Grabitz (1984) introduced the idea of a federal political union with flexible cooperation allowing step-wise participation among some member states with others cooperating later even before passage of the Single European Act. Throughout the nineties and in preparation for the Eastern accession, terms such as a two-speed Europe, or a Europe a la carte grew prominent in the integration debate. Scharpf (1999) went as far as to suggest that multiple policy standards and principles could be introduced for different groups of member states within the EU depending on the domestic political will. Despite the length of this debate, a recent and comprehensive overview by Holzinger/ Schimmelfennig (2012) reminds us that differentiated integration research remains a field with loose theory and sparse data. Yet, within less than twelve months, Europe has experienced (and begun to crumble under) the most dramatic post-wwii political crisis in a policy area that has been largely ignored in the differentiated integration literature. We argue that the limits on internal integration and absorption capacity among member states were overstretched by the migratory influx crisis beginning in 2015, and that the resulting referendum in Great Britain in favor of exiting the Union is a dramatic indicator of the need for continued, flexible differentiation in individual policy field integration. The International Organization for Migration (IOM) announced on January 2016 that 1,071,518 migrants, including refugees, had entered into the EU by either sea or land in Another 452,970 migrants entered the EU in January-May 2016, totaling to over 1.5 million migrants since beginning of The IOM estimates that over 1,250,000 entered by sea via Greece, Italy, Spain, Hungary, Cyprus and Malta, while tens of thousands have come on foot via Turkey and on through Bulgaria. According to Eurostat, at least 942,400 migrants applied for asylum in an EU member state in 2015 and over 450,000 through May While these numbers are increasing with every passing day, the size of the influx has surpassed any humanitarian crisis in modern history. The national statistics reveal the size of this crisis to be several fold larger. German statistics reveal that over 1 million people have been identified in its EASY register for distributing individuals prior to the initiation their official asylum application proceedings. While Germany has clearly received the largest absolute number of asylum seekers, smaller states such as Hungary and Sweden have the highest relative number of applicants per local population. The dramatic proportions of this humanitarian catastrophe have shaken the integrative successes of mobility and elimination of internal borders within the EU to the breaking point. In the past six months, we have observed the re-establishment of border controls in Germany, France, Belgium, and several other countries, a closing of the Oresund Bridge between Sweden and Denmark for tighter monitoring of non-documented migrants, the 1 The authors would like to thank Meltem Müfütler-Baç and colleagues in the MAXCAP EU FP7 consortium for their helpful comments on an earlier draft

2 erection of a patrolled wall along the Hungarian border, and the steady re-emergence of anti- European, nationalist domestic political rhetoric. As the 1.7 million EU citizens who benefited from Schengen and regularly commuted across state borders between work and home now face the imposition of tightened passport controls and interrupted cross-national public transportation, it appears that many hard won steps of integration have been rolled back in the name of preserving domestic security. Indeed, scholars and politicians alike attribute Brexit, the surprising June 23rd referendum in favor of Great Britain leaving the EU (in accordance with Art. 50 of the Lisbon Treaty), to growing dissolution and Euroskepticism regarding national security concerns and the costs of the migratory influx in Europe. With regard to the core political union and the then deepening Eurozone crisis, Jacques Delors stated that The drive to combine efficiency and legitimacy must also lead to move to differentiation within the EU, as in the past (for instance in connection with Schengen and with the Euro) and as the recent crisis impels us. (Jacques Delors et al., Tribune, 30 November 2012) While the Eurozone crisis of the past several years appears to have been more or less mitigated, we have yet to know the effects of Brexit in terms of the fiscal and political stability of the remaining EU members. Further, the dramatic refugee and migrant crisis following five years of horrific warfare in Syria and continuing instability in Afghanistan and Iraq has led to a far deeper and wide-reaching challenge to the political union and legal framework of the EU. The Exit Clause provided in Article 50 of the Lisbon Treaty and the complicated network of agreements still to emerge with Great Britain may provide the harshest example of differentiated policy integration in Europe and its limits. We wish to address the impact of the migratory crisis on the continued differentiated integration prospects for the European Union and its member states. Schimmelfennig et al. (2014) argue that differentiation is an essential and, most likely, enduring characteristic of the EU. Thus, as the competencies and membership of the EU have grown, the opportunities for policy areas to be integrated at different speeds, centralized at varying levels (vertical differentiation) and nonuniformly implemented across member and non-member states (horizontal differentiation) increase as well. Yet, differentiated integration raises crucial political, institutional and legal dilemmas. We face a trade-off between EU political unity and domestic sovereign state interests (Koenig, 2015). We must be concerned about the uniform application of EU law and the reality of national policy response to sudden, unexpected administrative realities. Likewise, we must ask address the unity of the EU institutional framework in light of domestic sub-entities, international interest groups or policy-specific global watch groups. The prevalent models of differentiated integration vary according to the policy area. Most academic research has focused on the four core areas of EU integration: the Single Market, the Economic and Monetary Union, the Area of Freedom, Security and Justice, and the Common Foreign and Security Policy (see Leufen, et al. 2013; Holzinger/ Schimmelfennig 2012) Yet, while Schengen remains a frequently cited example of dynamic differentiation, asylum policy has rarely been addressed. Although asylum policy touches on each of these core policy areas, it is not fully addressed by any one area, nor has it received due attention among scholars. We may observe talk of a two-speed Europe with regard to monetary union, or more temporary and ad hoc differentiation in the area of CFSP, but the Area of Freedom, Security and Justice contains multiple examples of flexible arrangements for opt-outs and opt-ins, allowing more of a so-called a la Carte integration. While the European Council remains committed to an ever closer Union, the Treaty allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do 2

3 not want to deepen any further. 3 The reality of the migratory influx during the past six months has effectively suspended much of the EU policy geometry designed to address asylum application in a unified and coordinated context. Reminiscent of Alesina s fiscal federalism/ functionalist arguments, Schimmelfennig et al. (2014, 15), expect differentiated integration to emerge where high levels of economic and political interdependence and asymmetric politicization are present. Because current migratory flows are challenging the territorial, organizational and conceptual boundaries of statehood and national sovereignty, asylum policy (particularly given the urgency of current affairs) provides the perfect litmus test for the integrative capacity of the European Union. The central dilemma facing differentiation in the area of EU asylum policy is the sense that national policy heterogeneity might undermine the effectiveness and advancement of de facto EU integration as it relates to the mobility of people and the system of registering and assigning regular and irregular third country national migrants (ie. non-eu citizens). Because the EU remains a single organizational jurisdiction with territorial boundaries, we cannot expect entirely task-specific jurisdictions with individual and unique asylum policies. Yet, as evidenced by the coordinated terror attacks in Paris and Brussels and continued threats to all European metropolises, this area also touches on the core or national sovereignty and security concerns, providing an ideal subject for testing Schimmelfennig, et al. (2014) expectations with regard to differentiated integration. In this paper, we look first at the progression of the legal framework regulating migration and asylum. We choose to break down the policy area into six component regimes in order to illustrate the complicated status quo of the system of differentiated integration currently prevailing in Europe and its neighbor states. From there, we will return to a tentative framework for considering integration in the area of migration policy. For asylum and migration policy, we observe notable vertical integration (centralization of decision-making), but also strong horizontal differentiation, internal differentiation and external differentiation, particularly when we shift our view to the issue level. We feel that this is an important addition to the current literature, both because the future of continued integration will hinge on this policy area, and because any view differentiated integration cannot be complete without looking at the individual issue areas and policy regimes comprising the larger policy area. Finally, we move toward an outlook for our continued research and a few concluding remarks. Migration in the European Union We adopt Boswell and Geddes (2011) distinction between two types of population movement in the EU mobility and international migration. EU mobility refers to the nationals of EU member states that exercise their rights of free movement as EU citizens. This intra-eu movement of nationals of member states is a key feature of the Treaty of Rome and of subsequent treaties and legislation at EU level. International migration refers to movement from outside the EU by people who are not nationals of a member state. This extra-eu migration by third country nationals (TCNs) is a relative newcomer on the EU policy making scene with incorporation of Schengen agreement into 3 According to European Council Conclusion during the Brussels, 27 June 2014 conference. 3

4 Maastricht Treaty (1993). Since Amsterdam Treaty (1999) migration and asylum have been included into EU s legal and political framework. Another distinction between regular (legal) and irregular migration is also highly relevant when analyzing international migration. Regular migration includes TCNs that have right to legally reside in the EU member states such as TCN labor migrants or asylum seekers/refugees. Irregular migration includes TCNs that do not qualify for immigration through legal channels (e.g. legal labor migration, asylum). Irregular migration is completely dependent from the definition of regular (legal) migration. Regular (legal) migration is regulated by either highly integrated EU policies like Schengen regime, Dublin regime or policies with none or low EU integration such as member state admission policies for non-eu nationals. What does not fall into the category of regular migration in the EU, automatically is regarded as irregular migration. Mobility and the Schengen Regime Free movement of workers (FMW) and free movement of EU citizens is the cornerstone of EU law. An EU-wide law introduced in 2004 created a common EU-wide framework specifying that all EU citizens have right to move to another member state, to take family members with them and become resident in that state, provided that they are able to support themselves (Boswell and Geddes, 2014: 8). Although EU has temporarily limited the right to FMW to newly acceding member states by providing transitional period for up to 7 years, the internal horizontal differentiation in this policy area eventually end up with uniform integration 4. The FMW policy has also external horizontal differentiation, where EEA members (28 EU member states + 3 EFTA members Norway, Iceland and Lichtenstein) also allow FMW, however Lichtenstein imposes permanent quota for EEA citizens. The Schengen area (with a gradual abolition of checks at common borders) was agreed to on June 14, 1985 by five EU member states. This agreement was implemented in 1990 to include the elimination of internal border controls and a common visa policy. While initially independent of the EU treaties, it came into effect in 1995 and was included in the Amsterdam Treaty in The Schengen area currently includes twenty-six European countries. These countries effectively have a common visa policy and strengthened border controls along external borders with non-schengen countries. Twenty-two of the current twenty-eight EU member states are in the Schengen area. Bulgaria, Croatia, Cyprus and Romania wish to join Schengen, but must first evidence compliance in areas of securing air borders, visa processing, police cooperation and personal data protection. Ireland and the UK continue to maintain opt-outs, although Ireland requested participation in the Schengen acquis in 2002 and subsequently never fulfilled (or filed) the requirements. There are also territories under Schengen member state control that are neither part of the EU nor of the Schengen Area, such as the Faroe Islands and Greenland. As well as microstates such as Monaco and the Vatican City that are not official signatories of Schengen but support open borders with Schengen countries around them. Additionally, Iceland, Liechtenstein, Norway and Switzerland (all EFTA members) also agreed to Schengen despite being outside of the EU. In 2015 Andorra, Monaco and San Marino began negotiating Association Agreements with the EU and would like to become Schengen Area members. 4 Expected date for lifting of the restrictions on movement on workers is 1 July 2018 for Croatia 4

5 In terms of intra-eu migration (mobility), Schengen area facilitates the movement of EU citizens and regular migrants by abolishing border controls, but in terms of extra-eu migration, Schengen created a fortress Europe (Geddes 2008) with more stringent controls on TCNs immigration due to common visa policy and strengthened EU frontier control with EU neighbors. The current influx of migrants traveling through Turkey to Bulgaria and Romania as well as through Greece, Macedonia, Serbia and on to Croatia pose the greatest threat to the further enlargement of Schengen. While some of the newest EU member states would like to join (and are contractually bound to joining at some point), other EU members within the Schengen Area such as Hungary, Germany and Finland continue to threaten with a veto of accession to Schengen. Since the migrant crisis began in Summer of 2015, Germany, Austria, Slovenia, Hungary, Sweden, and Norway 5 had or have re-established border controls to support the application of asylum seekers. France re-opened full border checks and passport control following the November terror attacks. The attack in Brussels, just three months prior to the June referendum further fueled Brexit campaign supporters. As noted by Mike Hookem (MEP and member of the UK Independence party) This horrific act of terrorism shows that Schengen free movement and lax border controls are a threat to our security. With similar sentiments now echoing across Austria and through France, it is clear that a uniform migration policy cannot be maintained. Labor Migration Policy EU has limited capacity to control labor migration of TCNs coming to member states. Although EU regulates rights of TCN workers, at the end it is up for member states to decide admission policies for non-eu nationals. Thus said, each member state regulates what type of labor migrants and how many labor migrants it will admit. As a first step to regulate admissions of international migrants, the EU has introduced Blue Card scheme in The directive covers conditions for entry and residence of TCNs of highskilled employment. The Blue Card is significant in a sense that after staying eighteen months in one member state the card holder can under certain conditions forego the national procedures of admission and move to another member state to seek employment. UK, Ireland and Denmark have all exercised their opt-out from the scheme and in general EU member states are reluctant to apply Blue Card scheme. Member states prioritize their own national admission policies of TCNs. Therefore, it can be concluded that EU has 28+1 schemes of regular labor migrant admissions from third countries. The 2015 migrant crisis led to questioning of regular migration channels and need for a more unified approach towards labor migration, as significant part of migrants into the EU are not asylum seekers (or not qualified as such), but labor migrants seeking employment in the EU. 5 Based on information provided by EC, policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_- _reintroduction_of_border_control_en.pdf 5

6 EU Asylum Policy and Dublin Regime EU Asylum Policy aims to create common EU asylum system. The current asylum framework consists of four main pieces of EU legislation: the Dublin regulation, which specified a one-stop EU asylum procedure; the Reception Condition Directive, which introduced minimum standards for reception, including detention; the Asylum Procedures Directive, which specifies minimum standards of procedures governing the processing of asylum claims; the Qualifications Directive, which sets minimum standards on procedures in member states for granting or withdrawing refugee status. The Dublin Regulation (EU Regulation No. 604/2013) stipulates the EU Member State that is responsible for the examination of asylum seekers applications. Those individuals seeking protection according to the Geneva Convention are expected to provide their fingerprints for an EU wide database for unauthorized entrants to the EU (EURODAC). This system is designed to rapidly assign asylum seekers to the authority of the Member State that marks their first point of entry into the EU. The Dublin regime was established under the Dublin Convention concluded in June It was designed to replace Schengen s asylum chapter (articles Schengen II). Due to the asymmetrical distribution of asylum applicants across the Member States, Dublin (and more notably Dublin II) effectively shifted the processing burden to Member States with external borders and away from the principle receiving countries of Germany and the Netherlands (Aus 2006: 18). 6 Seven years later it came into effect for the first twelve signatories, and the three 1995 accession countries of the EU (Austria, Sweden and Finland) began implementation by January of Norway and Iceland also apply the provisions of the Convention and have concluded a binding agreement of implementation with the European Communities. 7 Despite both Italy and Greece expressing their objection to the point of entry processing stipulation in article 10 of the Regulation, the concern with the 9/11 attacks in New York prohibited the Belgian Presidency from resolving all substantive concerns. However, out of these concerns, both Ireland and the UK were granted an opt-in (Aus, 2006:20). In 2003, the Dublin II Regulation replaced the initial Convention agreement in all Member States except Denmark. 8 Denmark had an opt-out on the implementation of this regime and has since agreed to a separate protocol that extends the provisions of the Norway and Iceland agreement to Denmark. While this extension occurred in 2006, the non-member states of Switzerland and Liechtenstein joined via 6 According to UNHCR data on refugees, taken together with the UK, Germany and the Netherlands accounted for 68% of all asylum applications in the European Union between Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway Council of the European Union. 8 Council of the EU (2003): Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, in Official Journal of the European Union of February 25, 2003, Vol. L 50, pp

7 an additional protocol in The final reform of the Dublin Regulation to the current status quo was passed with the Dublin III Regulation (No. 604/2013) in June of Under this regulation, all member states have agreed that the Member State at the point of entry will store the asylum applicants fingerprints under EURODAC and take responsibility for the asylum claim. 9 While EURODAC was strongly contested, and the divide between the Member States with external borders and those in the center of the Union has extended over more than a decade, EURODAC remains under the management of the Commission and is applied by Norwegian and Icelandic authorities as well. According to interviews by Jonathan Aus (2006:31) the Dublin II regulation was adopted under the silent procedure, a variant of the written procedure designated for foreign and security policy. This procedure notes the agreement of Member States on December 6, 2002; however, this was an informal method of adoption that assumed agreement in the absences of comments. Had the Regulation been subjected to the formal written procedure, all Member States would have been obligated to vote either in favor, against or in abstention from the proposal. Considering the thirteen month period of legislative deadlock on the proposal, Dublin II clearly could not have passed the hurdle of unanimity under the formal written procedure, but under the silent procedure, it slipped through without further debate or written objection within the specified one week period. It is also notable that Dublin regulation has been adopted in 2003 just before EU enlargement where new member states had to adopt it as acquis and therefore the regulation effectively meant shifting the burden of asylum claim consideration to the new member states that found themselves to be a new frontier states of EU. The purpose of Dublin regulation is to prevent member state shopping among asylum applicants as well as the submission of multiple applications. Additionally, the hope is to prevent asylum seekers from being transferred back and forth across member states. The goal is to provide clear delineation for the jurisdiction and processing of asylum applications. While the original Dublin Convention was amended to avoid asylum seekers being returned to or denied access to protection from persecution in their home territories, the Dublin system has increased pressures on the external border states of the EU due to the uneven distribution of asylum seeking claims, and it remains criticized due to the implications for separating families and lack of care for unaccompanied children. According to the Dublin Regulation, asylum must be sought within the country of entry. If the asylum seeker proceeds to another Member State after having been fingerprinted, that Member State retains the right to return the applicant to the point of entry. In 2011 European Court of Human Rights ruled that Greece is violating fundamental asylum standards and also found that Belgium had violated European Convention of Human Rights by applying Dublin regulation and transferring the applicant to Greece (member state of entry) 10. Since then Dublin regime is de facto not applicable for Greece and other EU member states do not transfer asylum seekers to Greece. The current refugee crisis has pushed the Dublin regime to a breaking point. By the end of June 2015, Hungary was so overwhelmed by new asylum applications that it refused to receive any 9 The biometric database, EURODAC, was proposed by the German and Austrian delegations as a means of enforcing the principle of first contact in administrative practice. 10 M.S.S. v Belgium and Greece, Application No /09, Judgement, European Court of Human Rights, 21 January

8 previously returned applicants from other EU Member States. Hungary announced suspension of application of Dublin Regulation on 2015 June 23 which was followed by reversal of the decision the next day. 11 By the end of August, Germany also chose to suspend the Dublin Regulation in application to Syrian asylum seekers in order to process their applications directly. The Czech Republic joined in defying the Dublin Regulation in September and now allows Syrian refugees transit through the country and processing of an asylum application there even if the point of entry was in another Member State. Hence, while the Dublin Regulation was hailed as an example of positive integration that emerged despite the appearance of irreconcilable differences among Member States and significant redistributive implications, we observe that the regime could not withstand the dramatic refugee influx of Looking toward the future, several Eastern European Union Member States have official rejected any revision or enlargement of the Dublin Regulation with reference to permanent or mandatory quotas in sharing asylum seekers. In January 2016, Denmark announced that while it will contribute funds to EU refugee efforts, it will not accept an EU quota on redistributed immigrants, claiming that it has already taken more than its share. The government also defended the decision to search individuals and their belongings to confiscate things of value other than wedding rings and telephones that exceed 3000 Kroner, thus requiring wealthier refugees to pay for their stay in asylum centers. 12 Denmark has registered just over 18,000 asylum claims in 2015, while neighboring Sweden has registered more than 150,000. A number of countries on the EU's periphery consider the system for tackling migration is broken and that the Dublin Regulation places an unfair burden on frontier member states as they are usually the first destination for asylum seekers arriving in the EU. During the 2013 September 22 vote in European Council on the distribution of asylum seekers among member states, the Central European countries such as Czech Republic, Slovakia, Hungary and Romania voted against the quotas and threatened to challenge imposed quotas on them in ECJ. This indicates that not only Dublin regime is crumbling, but it also is not sufficient for common asylum policy of the EU as it does not regulate fair sharing of burden of asylum seekers within the EU. Return Directive and Readmission Agreements The EU s Return Directive is standardizing the procedures regulating the expulsion of irregular immigrants. Directive provides for common rules for the return and removal of the irregularly staying migrant, the use of coercive measures, detention and re-entry, while fully respecting the human rights and fundamental freedoms of the persons concerned. The Directive has been transposed into national law by all member states bound by it (all EU member states except UK and Ireland; plus the 4 Schengen associated countries: Switzerland, Norway, Iceland and June According to a Facebook message posted on Friday December 19, 2015 by Integration Minister Inger Stojberg. 8

9 Liechtenstein). The Directive stipulates that EU member states cannot adopt harsher rules than ones laid out in the directive, however member states can retain or adopt more permissive rules. Although the Return Directive has been adopted to tackle with irregular immigration, it also directly touches on EU asylum policy concerning the asylum seekers who entered EU irregularly and denied asylum seekers. As part of Return Directive, EU has authority to conclude readmission agreements with third countries. EU Readmission Agreements (EURAs) are based on reciprocal obligations and are concluded between the European Union and non-eu countries to facilitate the return of people residing irregularly in a member state to their country of origin or to a country of transit. They operate alongside but take precedence over bilateral readmission agreements between individual EU member states and non-eu countries. EURAs oblige countries to readmit their own nationals, and also to readmit non-nationals who have transited through their territory to enter EU illegally. In terms of asylum policy, the terms safe third country and host third country were developed in order to justify denying certain asylum seekers access to asylum procedures. The idea is that the asylum seeker in question already enjoyed protection in a third country or she had access to such protection. The first readmission agreements were signed with Central and Eastern European countries that had border with EU and now are member states, so these agreements are no longer applicable. As of beginning of 2016 EU has 17 EURAs: with Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, FYROM, Bosnia and Herzegovina, Montenegro, Serbia, Moldova, Pakistan, Georgia, Armenia, Azerbaijan, Turkey and Cape Verde. With 2015 migratory influx crisis EURAs with relevant neighboring countries such as Turkey, FYROM and Serbia (all EU candidate countries) come into light. While Dublin regime has increased pressures on the external border states of the EU due to the uneven distribution of asylum seeking claims, EURAs are an extension of Dublin regime into non-eu member states by transferring asylum seekers to safe third countries, and thus shifting EU responsibilities away from member states to third-countries. EU-Turkey deal reached on March 2016 stipulates that all new irregular migrants crossing from Turkey to the Greek islands as of 20 March 2016 will be returned to Turkey and for every Syrian national returned to Turkey, a Syrian refugee will be resettled to European Union. Since the deal took effect, the irregular migration seems to have been somewhat curtailed with numbers gradually dropping through April and May of Summary of the Status Quo The previous sections illustrate the complexity of migration policy within the EU, and how it has evolved. The four central policy areas include: Free Movement of Workers (FMW) Schengen area Blue Card (high-skilled labour migration) Dublin regime 9

10 Summarized in a series of non-concentric circles in Figure 1, we observe strong differentiated integration across these four areas. We can Figure 1A: EU Migration Policy integration until mid

11 Figure 1B: EU Migration Policy integration as of 28 June 2016 In FMW policy area we observe horizontal external differentiation. All EU member states participate in FMW scheme plus other three members of European Economic Area (Iceland, Lichtenstein 13 and Norway). In Schengen policy area we observe both internal and external horizontal differentiation. United Kingdom and Ireland have opt-outs from this policy area, while Romania, Bulgaria, Cyprus and Croatia are not deemed to be qualified to enter Schengen area. With 2015 migratory influx crisis, we observe disintegration and increasing differentiation in Schengen area due to highly politicized national asylum and migration policies. In 2015 Germany, Austria, Slovenia, Hungary, Malta, Sweden, Norway and France suspended Schengen provisions 14 and Denmark suspended in January As of June 2016, Germany, Sweden, Austria, Denmark and Norway continue suspension of Schengen regime due to migration influx considerations. In high-skilled labor immigration scheme Blue Card we observe horizontal internal differentiation as United Kingdom, Ireland and Denmark has opted out from the scheme. Moreover, Blue Card scheme competes with 28 national labor immigration policies. 13 Lichtenstein has permanent quotas for workers from EEA 14 As of 15 January 2016, six countries have introduced border controls; Hungary, Slovenia and Malta had introduced controls in 2015 due to migrant influx but currently are back in the Schengen zone, based on information provided by EC, what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ ms_notifications_-_reintroduction_of_border_control_en.pdf 11

12 In Dublin asylum scheme we observe external differentiation as all member states 15 and all EFTA states participate in Dublin regime. However, although EU regulations have direct effect and cannot be legally suspended by individual member states, internal horizontal differentiation appeared as a direct result of 2015 migratory influx crisis with Hungary 16, Germany and Czech Republic defying the regulation. Moreover, mandatory application of quotas is opposed by Czech Republic, Slovakia, Hungary and Romania. As Schengen and the Dublin Regime have been suspended and/or defied, we see the assertions of early functionalist find empirical support. The sudden reality of hundreds of thousands of refugees seeking the safety of Europe to re-establish their lives has put this policy mosaic under extreme pressure. The championed successes of positive integration with open internal borders, the free movement of workers, a move toward attracting high-skilled labor and the Dublin regime for regulating regular migration have come to a screeching halt (and even been reversed). The reality of lasting political instability in the Middle East also suggests that the migratory influx has permanently changed the face of Europe. While the immediate humanitarian crisis may be resolved in the coming years, the migrants and their families will remain a part of the European economy and society for at least the next several decades. The sheer volume of asylum seekers poses organizational and basic resource questions. In addition to the above mentioned four areas of migration policy, the question of a mandatory distribution policy for asylum seekers as well as a strengthening of FRONTEX (the agency for external border control) for dealing with irregular migration remain on the horizon of the integration debate. It is clear that the migratory crisis cannot be resolved without policy coordination, and yet, the tremendous costs and societal implications of this influx are clearly disproportionately distributed. Particularly in the area of social policy harmonization, Scharpf (1999: 76) sees the limits of positive integration where no solution is available that would be preferred over the status quo by all, or most, member government. Hence, we should expect continued differentiation along the path of policy integration, particularly as member states acknowledge that returning to a time of heavily patrolled internal borders, fully decentralized asylum policy and a securitization of the immigration debate will lead to less efficient policy making and spatial externalities. If asylum policy become increasingly decentralized, the risk for asylum shopping increases, leading to an increase in irregular migration. The presence of growing numbers of undocumented residents presents a dire and long-term challenge for social policy provision, education, health care and ultimately civil order. Migration policy was always strongly contested among the member states; however, the current refugee influx has exasperated the immediacy of joint policy implications, providing fuel for nationalist claims and Eurosceptics. While facing the double-edged sword of continued policy integration, migration policy reveals a long overlooked and suddenly pivotal point on the European agenda. 15 Denmark has general opt out from Area of Freedom, Security and Justice, but it concluded separate agreement with EU to participate in Dublin III regime. 16 Hungary officially defied the regulation for 1 day. 12

13 Approaching a Theoretical Framework of Differentiated Integration in Asylum and Migration Policy According to the fiscal federalist literature, public good provision is efficient when the taxpayers, recipients and decision-makers are from the same jurisdiction (Olson 1969). When there is a mismatch between the scope of the policy implication and the political decision-making unit, then optimal policy solutions may be reached by centralizing or decentralizing regulation. Accordingly, local problems should be solved at the communal level and global problems through supranational means. Yet, the migrant crisis shows us that optimal policy delegation is a dynamic process subject to external shocks. Indeed, the free movement of workers, Schengen and the Dublin regime appeared to work relatively well despite adjustment after each round of EU expansion. The initiation of the Blue Card is further evidence of the integrative potential in this policy area. However, much like the Eurocrisis in , the collapse of Afghanistan and Syria emphasize the need for a more radical and flexible means of policy integration and coordinated response. Holzinger/ Schimmelfennig (2012) remind us of the potential for functional federalism: When jurisdictions are purely functional and independent of space and political borders, we approach the idea of Functional Overlapping Competing Jurisdictions (FOCJ) (Frey and Eichenberger, 1996). These units are defined by their jurisdictional function. They can formulate and implement shared policy decisions and build lasting yet flexible institutions. As suggested by Holzinger (2000), this multi-level approach to governance can include member states, nonmember states and sub-national regions. Decision-making in this flexible cooperation scheme would be taken by the members of the flexible cooperation, implying that unitary state preferences and unitary EU policy become elements of the past. We would like to suggest that in many ways, this is the political reality that we observe in the area of migration policy. As the policy review above reveals, the current status quo in European migration policy exhibits temporal differentiation (e.g. some states have joined Schengen or FMW with delay after accession, membership in the individual policy areas has shifted over time). We also observe both territorial and sectoral differentiation through a myriad of opt-ins, opt-outs and compliance irregularities. However, the idea behind FOCJs is one of market driven competition (i.e. taxpayers may be willing to pay higher taxes for the provision of better schools or a stronger police force, etc.), which we also observe-to some extent- in venue shopping among asylum seekers. We do observe that migrants with the means to access better, stronger social market economies as their first point of EU entry may have improved prospects than those asylum seekers who come on foot. Yet, in contrast to classic FOCJs, the recipients of the public good or provisions for asylum seekers such as housing, financial support, health care and education are not the tax payers. While Denmark does confiscate some personal belongs to offset the cost of social provision for asylum seekers, we have competing jurisdictions to the extent that higher skilled, better educated migrants are not uniformly distributed across their points of entry. Grabbe (2005) made a valuable contribution to differentiated integration literature in the areas of FMW in the single market and control of movement of persons across the external borders of the Union under Schengen provisions. However, given the dramatic migratory influx and recent changes to migration and asylum policy, any analysis on the Schengen regime should encompass both regular (legal) migration and irregular migration. The observed break down of 13

14 Schengen regime resulted not only from the refugee influx, but also from the influx of labor migrants that could not enter the Schengen area in legal ways (e.g. Blue Card, national admissions). Expanding on work by Grabbe (2005) and Papagianni (2006) as well as our own discussion of the policy status quo, we can now evaluate the theoretical framework provided by Schimmelfennig et al. (2014: 15-17) for the greater policy area regulating asylum and migration. With a focus on the policy characteristics of interdependence, politicization and the asymmetry of politicization, where interdependence is the need for policy coordination (demand for integration) and politicization is the factor that constrains governments in translating integration demand into integration outcomes, we summarize our findings below: Table 1: Policy Characteristics and Integration Outcomes in Migration Policy as Explained by Schimmelfennig et al. (2014) Level of Interdependence Politicization Asymmetry of Politicization Expectation for integration outcome Current state of integration and DI Free Movement of Workers High High High High & internally differentiated High, externally differentiatied Schengen High High Low Low & uniform Low, internally and externally differentiated Dublin Regime High High High High & internally differentiated High, externally differentiatied Blue Card Low Low Low & uniform Low, internally differentiated Concluding Remarks In light of the challenges resulting from one of the greatest migratory flows in the modern history Europe, we are faced with the simple question of what comes next? If the influx of refugees cannot be quickly addressed, the prospects for deeper policy integration remain bleak. It is a pivotal moment, as the legal framework of the EU is suspended, revised, contested and not upheld. Can we ensure effective and legitimate governance when the distribution of costs and the financial burden of this crisis remain disproportionally distributed? Do accession countries and bordering states need to be incorporated into the European legal framework in order to protect a future for deeper political integration? While the EU has always been characterized by varying degrees of vertical differentiation across policy areas, we see variation even at the issue area within migration and asylum policy. Further, the degree of horizontal differentiation continues to increase in this area with a complex pattern of non-concentric internal and external differentiation. Due to the sensitivity of asylum policy and the immediacy of the issue given the current and lasting migratory influx crisis, we 14

15 observe this differentiation as an enduring and dynamic feature of continued European integration. Particularly for this policy area, a shared institutional core can only be maintained through the acceptance of variance across issue areas, territorial space and time. The level of interdependence needed to respond to the migratory influx as well as the strong politicization associated with the securitization and sovereignty concerns of European Union member states and neighboring countries have driven the dynamic differentiated integration that we observe and would expect in this policy area. References Aus, Jonathan P Logics of Decision-making on Community Asylum Policy: A Case Study of the Evolvement of the Dublin II Regulation, ARENA Working Paper No. 3 February 2006 Boswell, Christina and Geddes, Andrew Migration and Mobility in the European Union. Palgrave Macmillian BBC Report on Migration Frey, Bruno and Reiner Eichenberger (1996) FOCJ. Competitive Governments for Europe, International Review of Law and Economics 16(3): Geddes, Andrew The Politics of Migration and Immigration in Europe. Sage: London. Geddes, Andrew Immigration & European Integration: Beyond Fortress Europe? Manchester University Press Grabbe, Heather Regulating Flow of People Across Europe, in F. Schimmelfennig and U. Sedelmeier (eds.) The Europeanization of Central and Eastern Europe. Cornell University Press Grabitz, Eberhard. (ed.) Abgestufte Integration. Eine Alternative zum herkömmlichen Integrationskonzept. Kehl: Engel. Holzinger, Katharina Optimal Regulatory Units: A Concept of Regional Differentiation of Environmental Standards in the European Union, in K. Holzinger and P. Knoepfel (eds.), Environmental Policy in a Europe of Variable Geometry. The Challenge of the Next Enlargement, Basel: Helbig und Lichtenhahn, pp Holzinger, Katharina and Frank Schimmelfennig Differentiated Integration in the European Union: Many Concepts, Sparse Theory, Few Data. Journal of European Public Policy Volume 19, Issue 2, March 2012, pages Koenig, Nicole A Differentiated View of Differentiated Integration. Policy Paper July Jacques Delors Institut, Berlin. 15

16 Leuffen, Dirk, Berthold Rittberger and Frank Schimmelfennig Differentiated Integration: Explaining Variation in the European Union. Palgrave: New York. Papagianni, Georgia Institutional and Policy Dynamics of EU Migration Law. Martinus Nijhoff Publishers: Leiden. Scharpf, Fritz W Governing in Europe: Effective and Democratic? Oxford University Press. Schimmelfennig, Frank, Dirk Leuffen and Berthold Rittberger The European Union as a System of Differentiated Integration: Interdependence, Politicization and Differentiation, IHS Working Paper July