The EU Response to the Refugee Crisis; Masked Centralization and/or Voluntary Decentralization? ABSTRACT

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017! The EU Response to the Refugee Crisis; Masked Centralization and/or Voluntary Decentralization? ABSTRACT The EU has undoubtedly taken many important actions legal, political, financial) in order to manage the large influxes of refugees and provide the necessary protection under its international obligations. The idea of the Common European Asylum System with the Dublin System as its cornerstone constitutes the EU legal basis for human rights protection of refugees. However, criticism of the Union s response towards the Refugee Crisis raises questions as to whether beneath the adopted supranational measures, lies the Union s will to externalize burden-sharing. On the other hand, the absence of a collective functioning legal system gives way to Member States decentralized action based on individual interests. The latter seems to prevail over the basic European values of solidarity and shared responsibility. It will be argued that such a crisis could be better dealt with on a centralized EU level whereby the Refugee Crisis will remain a European matter and not a national one. Introduction The civil war in Syria has resulted in an enormous increase of the number of refugees and migrants arriving in Europe. During 2015, over one million asylum seekers, fleeing the war in Syria, reached Europe. The Refugee Crisis in Europe has undoubtedly unsettled the EU like no other crisis before, revealing the flawed EU s legal and administrative policies and, consequently, huge gaps between Member States. This article will set out the legal measures and policies that the EU has implemented in order to respond to the Refugee Crisis as well as their efficiency judging by the outcome of the whole EU law and policy towards the Refugee Crisis. It will be argued that the collective weakness of the EU to provide a uniform answer to the crisis and a collective functioning legal system pushed Member States to act individually, allowing for national interests to prevail over the Union s values of solidarity and shared responsibility. This article is divided into two main parts; the first part deals with the international legal framework and its transfer 1

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 into the European context and the second one discusses the criticism over the Union s overall response to the Refugee Crisis. International Legal Framework All States are bound to respect their international legal obligations by making sure that their national law and policies are consistent with international law. More specifically, regarding the protection of refugees human rights, the states international obligations mainly derive from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol 1 as well as other international human rights treaties and law instruments. There is a responsibility among States for providing all asylum seekers with the relevant international protection by applying international law when asylum seekers come into their territory. States usually manage to respond to the onward movements of refugees and asylum seekers by engaging into international or regional cooperation arrangements with other States, International Organizations, NGOs or by taking individual legal measures and policies 2. According to the main provisions of the 1951 Convention, a refugee is a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it 3. Refugees are forced to flee because of a threat of persecution and because they lack the protection of their own country. By contrast, a migrant, may leave his or her country for many reasons that are not related to persecution, such as for the purposes of employment, family reunification or study and continues to enjoy the protection of his or her own government. The cornerstone of international refugee and human rights law is protection against refoulement 4 whereby it is prohibited to remove, in any manner whatsoever, a person to a 1 1951 Convention relating to the Status of Refugees, 189 United Nations Treaties Series 137, entered into force 22 April 1954 and UN General Assembly Protocol Relating to the Status of Refugees, 606 Unites Nations Treaty Series 267, entered into force 4 October 1967 Hereafter The 1951 Convention ). 2 Onward Movement of Asylum Seekers and Refugees: Discussion Paper prepared for the Expert Roundtable on Onward Movement, Graduate Institute of International and Development studies, 23/9/2015, p.2. 3 Article 1A 2) of the 1951 Convention 4 Ibid, Article 33 2

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 territory where he/she could face persecution or be at risk of torture or other cruel, inhuman or degrading treatment or punishment as well as other human rights violations. In addition, following Article 14 1) of the Universal Declaration of Human Rights, all people have the right to seek and to enjoy in other countries asylum from persecution 5 while under international human rights law, everyone has the right to leave any country, including his/her own, and to return to his/her country 6. It appears, therefore, that international law provides for refugee status and recognizes the right to seek and to enjoy asylum. Nevertheless, there is no right to asylum under international law; the right to asylum, that is the right of person to be granted permanent residence in a state, clearly lies in the discretion of the particular state. EU legal Framework The European Union was founded on a shared determination to promote peace and stability and on respect for human rights, democracy and the rule of law. These three last principles run through the EUs internal and external policies. Human rights are viewed as universally applicable legal norms and Democracy as a universal aspiration 7. Article 21 1) of the Treaty on European Union The Lisbon Treaty) 8 has reaffirmed the EU s determination to promote human rights and democracy through all its external actions. Moreover, the entry into legal force of the EU Charter of Fundamental Rights, and the prospect of the EU s acceptance of the jurisdiction of the European Court of Human Rights through its accession to the European Convention on Human Rights, underline the EU s commitment to human rights. Within their own frontiers, the EU and its Member States are committed to be exemplary in ensuring respect for human rights. Outside their frontiers, promoting and speaking out on human rights and democracy is a joint responsibility of the EU and its Member States 9. 5 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948. 6 Ibid, Article 13. 7 EU Action Plan on Human Rights and Democracy, Council of the EU, 2015. 8 The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations. 9 EU Action Plan on Human Rights and Democracy, Council of the EU, 2015. 3

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 The European Union, as a supranational organization, has implemented a great set of legal, financial and policy measures in order to face what has been characterized as the ultimate make-or-break issue for the European Union, an unsettling crisis like no other. The legal basis for the EUs asylum policy have been a) Articles 67 2) and 78 of the Treaty on the Functioning of the European Union and b) Article 18 of the EU Charter of Fundamental Rights whereby the EU legal system recognizes the right to asylum after the birth and entry into force of the European Charter on Fundamental Rights 10. The EU as an area of protection Measures taken to confront the Refugee Crisis. The EU Institutions have taken many important legal actions to face the mass inflows of refugees onto its territory. The ultimate turning point which forced the European decisionmakers to start taking the EU Refugee Crisis more seriously was clearly the loss of lives at sea of refugees trying to reach the EU territory. During the 2013 Lampedusa shipwreck, 500 refugees lost their lives trying to reach Italy. Later on, on the 19 April 2015, a tragic sea accident again resulted in 800 dead men, women and children just off Libya fleeing war and persecution in their home countries. The European Council was the first EU Institution to respond. During the European Council meeting in 2015 11 it was stated that We have decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility 12. Later on, the European Parliament adopted a resolution 13 calling upon all relevant actors and Member States that the EU should base its respond to the latest tragedies in the Mediterranean on solidarity and fair sharing of responsibility, as stated in Article 80 of the Treaty on the Functioning of the European Union TFEU), and to take a comprehensive European approach 14, stressed the need for the EU to step up fair sharing of responsibility and solidarity towards Member States which receive the highest numbers of 10 The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community, CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION 2000/C 364/01), Official Journal of the European Communities. 11 Special Meeting of the European Council, 23 April 2015, http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/. 12 Ibid, Statement par.2 13 European Parliament resolution of 29 April 2015 on the latest tragedies in the Mediterranean and EU migration and asylum policies 2015/2660RSP) 14 Ibid, par.3. 4

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 refugees and asylum seekers 15 and called upon EU cooperation in order to promote democracy, fundamental freedom and rights, security and prosperity 16. The Commission soon followed with the 13 May 2015 European Agenda on Migration bringing upon the need for coordinated action at European level in accordance with the principles of solidarity and shared responsibility 17. The measures set out in the Agenda could be classified as follows: a) measures aiming to resolve the enormous ethical problem of lives lost at sea and protection of the EU borders, b) measures taken at the international level and c) measures for the improvement of the already existing policy on asylum Relocation, revision of the Dublin Regulation and CEAS rules). The first set of measures aimed at saving lives at sea and protecting the EU borders. According to the Agenda policy, this would be achieved by strengthening the EU-based Agency, Frontex. Member States would be able to request for the deployment of Frontex teams in order to get immediate help in guarding their external borders. The Commission, though the Agenda, also set up the 'Hotspot' approach; the European Asylum Support Office, Frontex and Europol would work with frontline Member States, such as Italy and Greece, in order to swiftly identify, register and fingerprint incoming migrants. The work of the agencies is complementary to one another. The second set of measures consists of all measures taken by the EU at the international level and more specifically it refers to the close cooperation and collaboration of the EU with third countries countries of origin and transit of refugees). As stated in the Agenda on Migration, The EU must continue engaging beyond its borders and strengthen cooperation with its global partners, address root causes, and promote modalities of legal migration that foster circular growth and development in the countries of origin and destination 18. The way to achieve that would be mainly through the so called EU Delegations in key countries. EU Delegations would report on the most important migratory related issues in the host countries and would contribute to mainstream migration issues into development cooperation and reach out to host countries to ensure coordinated action 19. Moreover, European migration liaison officers would staff the EU Delegations in key third countries, in order to closely cooperate with local authorities and civil society, gather and exchange valuable information. 15 Ibid 16 Ibid, par. 13. 17 Commission A European Agenda on Migration Communication) COM 2015) 240 final 18 Agenda on Migration, p.7. 19 Ibid, p.8. 5

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 The Agenda on Migration also introduced a resettlement mechanism in order to limit the consequences of illegal migration by agreeing to resettle a large number of persons in clear international protection from third countries to the EU Member States. The Commission would propose an EU-wide resettlement scheme to offer 20,000 places in all Member States, with distribution criteria such as GDP, size of population, unemployment rate and past numbers of asylum seekers and of resettled refugees, and would take account of the efforts already made on a voluntary basis by Member States 20. The Agenda on Migration also pointed out that there should be a more effective approach to the abuse of the European Asylum System. Too many requests are unfounded: in 2014, 55% of the asylum requests resulted in a negative decision and for some nationalities almost all asylum requests were rejected, hampering the capacity of Member States to provide swift protection to those in need 21. What was needed was the swift processing of unfounded asylum applications. The Council adopted Conclusions on this issue 22 and the Commission in September 2015 set out a Proposal for a Regulation 23 that would establish an EU common list of safe countries of origin 24 namely Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey. However, the most important step taken by the EU in the international arena in order to confront the EU Migration Crisis is the joint EU-Turkey action 25. The EU decision-makers realized there was a lot to be gained from stepping up cooperation is Turkey. This project aimed at supporting Syrian refugees who had arrived in Turkey and their Turkish hosting communities in order to prevent them from reaching the EU territory by crossing the EU borders. In exchange, Turkey would be provided with substantive operative and financial assistance. 20 Ibid, p. 5. 21 Agenda on Migration. p.13. 22 Council Conclusions on safe countries of origin, Brussels, 22 July 2015, 11133/5. 23 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, COM2015) 452 final. 24 Within the meaning of Directive 2013/32/EU A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU2, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. 25 EU-Turkey Joint Action Plan, 15.10.2015, http://europa.eu/rapid/press-release_memo-15-5860_el.htm 6

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 The third set of measures consist of amendments made on the already existing EU legal framework, that is the Common European Asylum System 26, which was adopted to implement the 1951 Geneva Convention into the EU legal system. The cornerstone of the CEAS is the Dublin System which constitutes the legal basis for ensuring human rights protection of refugees under European law. The core principle of the Dublin Regulation 27 is that the responsibility for examining the asylum claim lies primarily with the Member State which played the greatest part in the applicant s entry or residence in the EU. Through the Agenda on Migration, the EU firstly called upon its Member states to ensure a full and coherent implementation of the already existing Common European Asylum System and secondly triggered the emergency response system envisaged under Article 783) TFEU as an attempt to ensure a fair and balanced participation of all Member States to this common effort 28. The activation of the emergency mechanism of Article 783) TFEU in fact introduced an exception to the Dublin Regulation 29. The frontline member states that have the exclusive responsibility to process the asylum claims under the Dublin Regulation, would be able to benefit from the exception of the relocation mechanism whereby a certain and predetermined number of refugees would be transferred to other Member States 30. The receiving Member State would then be responsible for the examination of the asylum application relieving the frontline member states of their unprecedented pressure of enormous influxes of refugees. The emergency mechanism of Article 783) TFEU was activated and the first relocation plan took place on 14 September 2015 four months after the Commission s initial proposal) whereby 24,000 asylum seekers from Italy and 16,000 from Greece were moved to other member states 31. However, the ongoing increase of the number of refugees fleeing from their homes seeking international protection on the EU territory, very soon led to a second Council 26 European Commission, a Common European Asylum System, https://ec.europa.eu/homeaffairs/sites/homeaffairs/files/e-library/docs/ceas-fact-sheets/ceas_factsheet_en.pdf 27 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. 28 Agenda on Migration, p.4. 29 According to Article 783) TFEU In the event of one or more Member States being confronted with an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the ember States) concerned. It shall act after consulting the European Parliament. 30 Agenda on Migration, p.4. 31 Article 4 of Council Decision EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece 2015) OJ L239/146. The Council Decision was reached by consensus. 7

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 Decision for the relocation of another 120,000 asylum seekers from Italy, Greece and Hungary 32. This decision was made by a qualified majority vote, outvoting Hungary, the Czech Republic, Romania and Slovakia. Hungary, in fact, filled an action for the annulment of that Council Decision arguing that it infringes the principles of legal certainty, necessity and proportionality, and contested the selection criteria for the purpose of relocation stating that it violated the 1951 Refugee Convention and the right of refugees to remain to the territory of the state in which they made their asylum application 33. Slovakia also brought an action against the Council Decision on the pleas of legal certainty, representative democracy and institutional balance 34. The Commission responding to the pressing need for a fair solution proposed in September 2015 an amendment to the Dublin III Regulation by introducing a permanent crisis relocation mechanism as an exception to the otherwise applicable Dublin rules 35. Further on, the Commission acknowledging that there are inherent significant structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy, set out its Communication on 6 April 2016 undertaking the action to propose to amend the Dublin Regulation by either supplementing it with a corrective fairness mechanism or moving to a new system based on a distribution key 36. The Commission s overall objective was to provide a fairer system which could substitute the present poor by design and implementation system which places a disproportionate responsibility on certain Member States and encourages uncontrolled and irregular migratory flows. The new system could be based on two main different options; under the first option, the current criteria for the allocation of responsibility would be essentially preserved, but the system would be supplemented with a corrective fairness mechanism, based on a distribution key, allowing for adjustments in allocation in certain circumstances. Under the second option, the determination of responsibility would no longer be linked with the Member State of first application or irregular entry. Instead, responsibility would be primarily allocated on the basis 32 Council Decision EU) 2015/1601, 22 September 2015, establishing provisional measures in the area of international protection for the benefit of Italy and Greece 2015) OJ L248/80. 33 Case C-647/15, Hungary v Council of the European Union 34 Case C-643/15, Slovakia v Council of the European Union 35 Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism and amending Regulation EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or stateless person COM 2015) 450 final 2015/0208 COD). 36 Communication from the Commission to the European Parliament and the Council Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe, 6 April 2016, COM 2016) 197 final. 8

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 of a distribution key reflecting the relative size, wealth and absorption capacities of the Member States 37. Criticism of the EU Refugee and Migration Policy; EU-Centralized or Decentralized Decision-making? The overall analysis of the main legal steps taken by the EU Institutions in their effort to manage the Refugee crisis clearly reveals the asymmetrical impact of the crisis itself on the EU Member States and most importantly, the different state approaches towards the unprecedented influxes of refugees attempting to reach the EU territory. It could be argued that the EU policy on Migration consists of two conflicting agendas that exist simultaneously and are carried out in a parallel way; on the one hand, the core narrative of the EU integration project, based on democracy, the rule of law and respect of human rights and on the other hand, the notion that security and the protection of borders are equally important, enabling free movement and guaranteeing safety to the European citizens 38. The EU has been strongly criticized for following the second agenda, which focuses mainly on the protection of the EU borders instead of deciding to confront the Refugee Crisis as its own central problem. The EU Approach to refugees could also be characterized by the fusion on behalf of the EU of refugee protection with immigration control; the EU seems to favour the control of the entry of third country nationals into its territory and dealing with migration flows under migration law and has left behind the provision of international protection under refugee law 39. It appears that the EU has failed so far to activate a central legal system which could equally bind all member states in its application and, thus, allowed for different attitudes to prevail, leading to the extreme polarization between the EU Member states. In other words, most decisions taken so far were masked as taken at centralized level while they were actually forcing someone else mostly the individual member states) to act individually, at a decentralized level. The absence of a collective EU response towards the Refugee crisis gave way to the decentralized attitude and opened the floodgates for Member States individual action to prevail over the basic European values of solidarity, shared responsibility and democracy. 37 Ibid, pp.7-8. 38 See Helldorff, J.Von 2015) The EU Migration Dilemma. Heinrich Boll Stiftung. 39 Gilbert, G. 2004) Is Europe Living Up to Its Obligations to Refugees?, The European Journal Of International Law, p.968. 9

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 More specifically, the basic idea behind the strong criticism against the EU law and policy for the refugee crisis is that they were in fact measures aiming to prevent the refugee crisis reaching the Union territory in the first place. All actions for the protection of EU borders, measures taken at the international level and financial support to third countries were designed to ensure that part of the refugee crisis remains somebody else s concern. Frontex actions did not prove to be efficient in the long term; they did not manage to stop the large influxes of refugees or to deal the insurmountable problem of registration of refugees. The resettlement of large numbers of refugees to third countries is seen as a way to give something in return to countries for keeping the problem outside the EU territory 40. The permanent emergency mechanism proposed by the Commission to be automatically activated in cases of emergency, that is in the cases of refugee crisis management of large influxes of refugees, does not consider the fact that uneven responsibility allocation can emerge in situations where there is no crisis at all 41. The Commission seems to favour the centralization of the asylum policy and the protection of external borders whereby Member States are subject to supranational decisionmaking; if it is judged that they cannot cope with the flow of refugees, they will have to accept the deployment of technocrats of Frontex and EASO. However, the centralization of power over member states decision-making and the substantive standards of asylum law aim at creating the conditions under which the exclusive national responsibility for asylum seekers will be preserved 42. In other words, although asylum law is Europeanised, it is formed to ensure that asylum seekers and refuges remain the very last exclusively) national subjects 43. Article 80 TFEU solidarity and fair sharing of responsibility According to Article 80 TFEU The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. Questions arise as to whether the existing legal framework of the Common European Asylum System and its deriving allocation of 40 Selanec, N.B. ) A critique of the EU Refugee Crisis Management: on law, Policy and Decentralisation. pp. 90-91. 41 Kucuk, E. 2016)The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing, European Law Journal, p.468. 42 Menendez, A.J, 2016). The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration, European Law Journal, p. 405. 43 Ibid 10

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 competences and responsibilities are in fact compatible with the wording of Article 80 TFEU; is the common European policy on asylum, migration and external borders based on solidarity and fair sharing of responsibility? Kucuk, E., states there is no doubt that the existing legal framework of the CEAS infringes the basic principles of solidarity and sharing responsibilities as enshrined in Article 80 TFEU 44. Allocation of responsibilities on such crucial issues cannot be based on a simple geographical criterion. The first country rule, set out by the three Dublin Regulations, places the burden of processing of applications on the state of first entry. This is more than unfair. Almost 75% of all asylum application has been considered be Greece and Italy. On the other hand, the overall objective of the Internal Single Market is a single market without frontiers where people will be able to move freely. Therefore, once internal borders among the EU Member States are removed, a decision that grants asylum to a refugee undoubtedly affects the rest of the Member States. Even more, the inevitable infringement of Article 80 TFEU raises the issue of the unconstitutionality of the existing asylum legal framework. As Kucuk, E., points out Each national obligation affects the area of free movement as a whole..it is necessary for all to accept their fair share of responsibility in protecting refugees. This is not only a practical requirement, but also a constitutional obligation, enshrined in Article 80 TFEU 45. Inadequate protection of human rights The first country rule, as imposed by the Dublin Regulation has raised important issues of inadequate protection of the human rights of asylum seekers. Following the Dublin Regulation, asylum seekers that have moved onto another member state will have to be returned by the second member state authorities to the member state of first entry. The return will take place automatically without considering whether the responsible first entry state is in fact a safe country for the asylum seeker. This inevitably leads to the removal of a great number of asylum seekers to the most pressurized member states of first entry that are actually unable to deal with the unstoppable asylum claims and are therefore unable to provide adequate international protection to asylum seekers. A fair system of asylum claims examination should also take into account the interests and will of third country nationals. 44 Ibid, p. 448. 45 Ibid, p.468. 11

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 The European Courts The uneven pressure imposed by the Dublin Regulation onto member states of first entry has also reached the European Courts. In the M.S.S. case 46, the European Court of Human Rights ECtHR) condemned Greece for failing to comply with its obligations of international protection as well as Belgium for returning the asylum seeker according to the Dublin system without examining whether Greece could actually offer the necessary protection of the applicants fundamental rights. In the N.S. and M.E. 47 cases, the European Court of Justice CJEU) concluded that automatic returns under the Dublin Regulation could risk the protection of the fundamental rights of asylum seekers stating that Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Dublin II Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 CFR. Consequently, it appears that the existing legal system proved to be inefficient even in noncrisis situations considering that the abovementioned caselaw came out long before the outbreak of the Refugee Crisis. What remains to be seen is the judgment of the CJEU regarding the latest actions brought by Hungary and Slovakia against the relocation mechanism 48. Individual Member State Action The lack of a collective, uniform EU approach towards the Refugee crisis and the absence of a functional legal system that could lead the road to Member States action, have resulted in individual Member State action and, subsequently, to the extreme polarization among the EU Member States. On the other hand, as previously stated, EU Member States have already started to contest the established Europeanization regarding the EU Refugee 46 M.S.S. v Belgium and Greece, Application no. 30696/09 ECtHR, 21 January 2011) According to the facts of the case, an Afgan asylum seeker who fled Kabul in 2008 entered the EU through and travelled on to Belgium where he applied for asylum. Following the Dublin rules, Greece was considered to be the responsible state for the examination of his asylum application. Belgian authorities transferred him to Greece in 2009 where he faced detention in insalubrious conditions before living on the streets without any support. The possible violations examined were violation of Article 2 right to life), Article 3 prohibition of inhuman or degrading treatment or punishment and Article 13 right to an effective remedy). 47 Joined Cases C 411/10 and 493/10, N.S. and M.E., EU:C:2011:865. 48 Above, n. 32 and 33. 12

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 and Migration policy 49. Member States have sought to implement measures following their own individual interests above the EU cooperation, which rests on solidarity and fair responsibility sharing. They preferred to act on a decentralized level placing the national interest above the European one, ignoring their own commitment to the common values of solidarity and equal sharing of responsibilities. Emergency measures were taken by many Member States and most of them introduced border checks or erected walls along their frontiers 50. It appears that in the beginning of 2016, the area known as without internal borders, had become an area of walls in which respect for European and International Human rights law had been forgotten. The Member States individual behavior, mentioned above, shows the extent to which they are split towards refugees. The fact that the gap between them grows more acute over time does not allow the EU to pride itself on putting human rights at the forefront of its agenda 51. But choosing to move on to short-term domestic decisions over the supranational ones can result in suboptimal political, economic and social outcomes within and across EU Member States 52. Conclusions The discussion around the criticism of the EU response towards the EU Refugee crisis raises questions as to whether the decision-making for the confrontation of the Refugee crisis should be made on a centralized or decentralized level. According to the neofunctionalist perspective of European Integration, the Union as a supranational/international organization has powers and competences that are legally binding for all member states; the Union is itself charged with promoting the collective interest of the Union which, consequently, results in European integration among member states that benefit collectively. On the contrary, according to the intergovernmental perspective, the ultimate authority is in the hands on the member state itself; in that case, decision-making will be made at national 49 By Europeanization, I refer to the enlargement of the scope of the particular area of policy-making from the national area to the European area and to the delegation of powers from Member States to the EU level. 50 Germany announced in September 2015 it would reintroduce border checks with Austria announcing record numbers of refugees that had brought the system into breaking point. At the same time, Austria announced it would start border controls with Slovenia and in October it announced the construction of a border fence. Later on, Slovakia imposed border controls with Hungary. Sweden, which has received the most refugees together with Germany, introduced in January 2016 border controls with Denmark and then Denmark announced similar measures to applied to its borders with Germany. Hungary, which has been very strict in allowing refugees into its territory, erected a 109-mile long barbed wire border fence along its frontier with Serbia. Then, in October 2015, it started building a fence along its frontier with Croatia and then with Romania. Then, Slovenia built a fence with Croatia. One of the latest border controls is the border between France and Belgium. 51 Greenhill, K.M., 2016). Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis, European Law Journal, p.324. 52 Ibid, p.332. 13

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 level decentralized) and most possibly will further the cause of individual national interests. In this case, no legally binding decision can be imposed upon the nation-state, unless the state agrees to that. Ideally applied in the area of the EU Refuge crisis, the neo-functionalist perspective would mean that internal borders of member states are less important than the freedom of movement which promotes the European Identity. In that case, the power of Member States is weakened as the decision-making is transferred to the Union. Member States have to cooperate closely in order to fulfill their Union obligations. The overall response of the EU is actually a neo-functionalist approach. Frontex for example, constitutes the EU s neo-functionalist attempt to gather Member States action against immigration of third country nationals. The mission of Frontex - the European Border and Coast Guard Agency - is to promote, coordinate and develop European border management in line with the EU fundamental rights charter and the concept of Integrated Border Management 53. But as it was previously stated, the Frontex mission failed to cope with the large influx of refugees. Who is to blame? The lack of a collective central EU approach or the Member States voluntary decentralized attitudes? The asymmetrical effect of the Refugee crisis onto the EU Member states seems to be the main reason for the absence of such a collective approach. The first entry states would be very happy to overcome the Dublin impositions while transit states would prefer to convert the flows to another state by building walls and fences. Finally, states that have absorbed most refugees would call for equal burden-sharing. As a conclusion, the Union s humanitarian approach towards the Refugee crisis is uncontested; the Union, as a transnational unity, has taken many important steps which have managed to save lives and protect human rights of refugee and asylum-seekers. The Union promoted political transition, provided financial assistance to hosting states and third countries and joined all United Nations statements and resolutions against war and violence. However, based on its burden-sharing response and the will to safeguard EU borders, the Union has limited asylum protection under refugee law to those who manage to remain on the EU-territory. Very few refugees were granted asylum because Member States have been left with a wide discretion to grant protection; individual interests prevailed over their obligation under European and International law. Thus, EU decision-making seems to be formed on a local, national and regional basis which guarantees far less protection compared to 53 http://frontex.europa.eu/about+frontex/mission+and+tasks/ 14

VakouliMaria+Nefeli GovUNetWorkingMeeting 25.2.2017 international standards; and the reason for this is the Union s reluctance to face the crisis centrally, in a legal manner that strongly binds Member States, and to care for the crisis as its own problem. Indicative Bibliography -1951 Convention relating to the Status of Refugees, 189 United Nations Treaties Series 137, entered into force 22 April 1954 and UN General Assembly Protocol Relating to the Status of Refugees, 606 Unites Nations Treaty Series 267, entered into force 4 October 1967 -UN General Assembly, Universal Declaration of Human Rights, 10 December 1948. -Onward Movement of Asylum Seekers and Refugees: Discussion Paper prepared for the Expert Roundtable on Onward Movement, Graduate Institute of International and Development studies, 23/9/2015. -Gilbert, G. 2004) Is Europe Living Up to Its Obligations to Refugees?, The European Journal Of International Law -Helldorff, J.Von 2015) The EU Migration Dilemma. Heinrich Boll Stiftung. -Kucuk, E. 2016)The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing, European Law Journal -Menendez, A.J, 2016). The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration, European Law Journal. -Selanec, N.B. ) A critique of the EU Refugee Crisis Management: on law, Policy and Decentralisation. -Biondi, P. 2016) Human security and external burden-sharing: the European approach to refugee protection between past and present, The International Journal of Human Rights, p.208. Kneebone, S. 2016) Comparative regional protection frameworks for refugees: norms and norm entrepreneurs, The International Journal of Human Rights, p.153. Guild E. 2016) Does the EU Need a European Migration and Protection Agency? International Journal of Refugee Law. Hathaway, J.C. & Storey, H. 2016) What is the Meaning of State Protection in Refugee Law? A Debate, International Journal of Refugee Law. 15