Burden-sharing or Burden-shifting: The European Response to Refugees

By Lisa Weihser

Published on November 18, 2016

Europe is facing the most severe refugee situation since World War II. Due to geopolitical circumstances in some of the EU’s neighbouring countries, record numbers of people (more than 59 million individuals) have fled conflict regions in recent months. These unprecedented flows have put tremendous pressure on frontline Member States. As part of the European Agenda for Migration, the European Commission’s proposal, (supported by the European Parliament and adopted by the Council,) has seen the emergency relocation of 160 000 asylum-seekers from Italy and Greece to other Member States. However, disparity between the numbers that other Member States would take was considerable. The notion of “burden-sharing” was acknowledged in the Preamble to the 1951 Geneva Convention on the Status of Refugees, which specifies that granting asylum may place unduly heavy burdens on countries, implying the need for international concord. The main difficulty is found in the Dublin Regulation, as part of the wider Common European Asylum System. Under Dublin, the Member State which the individual initially entered is responsible for examining the application for international protection and those who seek, or have already been granted protection, are not allowed to choose freely in which Member State they wish to stay. Unfortunately, the Dublin system was not designed to provide an effective and proportionate responsibility – sharing mechanism; a major flaw showcased by the current crisis.

The (Tr)ublin Regulation?

The Dublin Regulation was designed to resolve the problem of secondary movements in the European Union. Theoretically, it aimed to safeguard those Member States that removed their internal borders. Practically however, through the “entry criterion”, Dublin creates concentration effects in frontline Member States. Thus, rather than protecting Members, it aggravates their inability to safeguard those in need of international protection. Asylum seekers arrive in one EU Member State such as Greece, request asylum, and then move to another Member State, perhaps France (where they may have family). They apply for asylum upon arrival in France, but when French authorities take their fingerprints based on the EURODAC Regulation, they return the individuals to Greece. Asylum seekers cannot ask for asylum in two different Member States, and under Dublin, France would need to deport the individual to Greece. This leads to the inevitable problem of the Member States that are easiest to access being unable to cope with the influx of refugees. As a result, with regard to the current European refugee “crisis”, the term “burden-sharing” emerged due to the fact that in 2015, 70% of asylum seekers were dispersed in only five EU Member States (Germany, France, Italy, Greece and Hungary).

Call for Solidarity

These overwhelmed States have requested solidarity from other Members of the European Union; specifically from northern States that have taken comparatively few asylum seekers. This highlights another obstacle in the current European system, as asylum seekers in these overburdened States may face inhumane and degrading treatment in detention centres. Asylum seekers are therefore placed in a state of legal limbo, as they cannot be sent back to the Member State of first arrival, due to the principle of non-refoulement.

However, the request was not welcomed by other Member States, who were reluctant to share responsibility for the influx of asylum seekers. At the same time, they cannot be held legally accountable for withholding co-operation, as international law contains no enforceable obligation of solidarity. Even though one could try to ground burden-sharing on international custom, and solidarity in theory represents a fundamental principle of international law, state practice does not confirm this stance. Furthermore, although the European Court of Justice declared solidarity to be a principle of EU law, it is far from creating obligations in the realm of asylum. It is feasible to envisage some Member States closing their borders to asylum seekers (as happened with the closure of the so-called ‘Balkan corridor’) by countries such as Hungary and Bulgaria. Over time, burden-sharing has acquired a negative connotation in the countries choosing to avoid taking their fair share of refugees.

Cost-Benefit Analysis

The current mechanism is incoherent and fragmented, and predicates an impasse. Since granting refuge is a mere ‘charitable act’ by the host State, States have no incentive to do more. The key issue about burden-sharing is why States should limit their sovereignty by accepting a compulsory mechanism. In contrast to market integration (which created a more beneficial win-win situation for all Members) burden-sharing creates “losers” in the process. Therefore since the 1980s, EU Member States have formed an exclusionary alliance and have joined a ‘race to the bottom’ in making it unappealing for asylum seekers to seek refuge. The current EU immigration policy appears to advocate the goal of keeping asylum seekers out, and shifting the burden to other States. The trend towards the increased adoption of non-entrée measures among several Members has created tension in the European Union.

Due to the uncertainties that the acceptance of asylum seekers on a State’s territory entails, this may have short-term relevance, but in the long term it can be beneficial for society. On the one hand, a predictable, proportionate intra-European burden-sharing mechanism would give States insurance against uncontrolled long-term mass inflows. It would lead to enhanced stability and security in the Union, and States would also be demonstrating their willingness to protect human rights in the process. Burden-sharing would reduce costs, promote more inter-State cooperation to combat a global problem, and increase predictability. Alternatively, non-cooperation might hamper the completion of the internal market and the establishment of a common migration policy, and so impede the effective operation of the Schengen and Dublin structures.

Prohibition to refouler

The most prevalent problem in the European Union is that there is currently no binding mechanism to share responsibility. This results in open-ended free-riding opportunities for States that are unco-operative in sharing the inflow of asylum seekers. The reason for this exclusionary thinking is legal responsibility. Article 33 of the Refugee Convention prohibits the refoulement of individuals to the country of persecution, once the asylum seeker has filed a request for protection on the host State’s territory. As Professor James C. Hathaway correctly acknowledges, international refugee law “arbitrarily assigns full legal responsibility for protection to whatever state asylum-seekers are able to reach”. Yet, the regime allows States to exclude criminals convicted by final judgment and persons deemed a national security threat. This is the only possibility for States to reject asylum applications. Apart from this, the principle of non refoulement has been understood to include the prohibition to reject protection seekers at a State’s frontier, but does not allow for the potential adverse impact that mass inflows may have on host States. It is this disregard for the State’s interest that has provided the pretext to avoid international obligations altogether. This reasoning is frequently justified under ‘state interest’s and as a matter of national security.

Current legal mechanisms

In 2015, the Commission proposed two temporary emergency relocation schemes for around 160 000 persons in need of international protection from frontline States; primarily Greece, Hungary and Italy to other Member States. These should be implemented over a two year period. Agreement was reached about the feasibility and implementation of one such obligatory distribution mechanism – resembling the German “Königsteiner Schlüssel”; this was adopted in September 2015. Under both Decisions adopted by the Council, only asylum seekers who in demonstrable need of international protection would be eligible for relocation. This suggests that only nationals of States with a European average asylum recognition rate of at least 75% would be eligible, according to the latest available Eurostat data. In accordance, all people eligible for international protection would come from the main crisis regions, including Syria, Eritrea and Iraq. This exclusionary tool is a violation of the principle of non-discrimination, and is incompatible with the right to an individual assessment of one’s case. The absence of an individualised case-by-case examination may lead to a violation of the prohibition of collective expulsions under Article 19(1) of the Charter of Fundamental Rights of the European Union and Article 4 of Protocol No. 4 to the European Convention on Human Rights and Fundamental Freedoms as reiterated by Andric vs. Sweden. This also violates several EU Directives, especially the “Qualification” and “Procedures” Directives.

The way forward

An efficient permanent relocation mechanism should be adopted and should cover those individuals whose countries of origin do not have a European average asylum recognition rate of at least 75%, as required for temporary relocation. The new mechanism would be essential for all those people outside the three priority nationalities for protection who would nonetheless qualify for international protection under the 1951 Refugee Convention. This permanent relocation proposal was based on Article 78(2)(e) of the TFEU. It could be argued that a burden-sharing mechanism like this derives from general international law and the United Nations Charter under humanitarian and moral grounds. There is however a risk that Member States refuse to comply with the permanent relocation mechanism as demonstrated by Slovakia and Hungary in 2015. Even though the Commission may start infringement proceedings under Article 258 TFEU, this should be a decision of last resort, as it could create more tensions between Brussels and the EU Member States. Those that are uncooperative may actually prefer sanctions for non-compliance with the European Court of Justice ruling. Conversely, the European Parliament might be more successful in adopting its proposed coercive mechanism, which would oblige free-riding Member States to pay €250,000 per refused asylum seeker. This could eventually incentivize States to share responsibilities under the relocation mechanism.

The European Parliament study in 2000 has calculated an asylum responsibility index for each Member State, by measuring the relative pressure according to its capacity. It took into account the States’ GDP per capita, population, and size and population density (weighted 50%, 25% and 25% respectively). These three criteria, however, cannot be taken as a representative means of distributing protection seekers across European States. Instead, the unemployment rate, the connection to the host Member State, language skills of the individual, as well as existing family ties in any country should be taken into account

Due to limited jurisdictional powers, the European Court of Justice and the European Court of Human Rights offer insufficient remedies to refugee-related claims. To avoid additional case overload at the existing courts, an independent Common European Asylum Appeals Court could be created to interpret asylum-seekers’ rights consistently. It should nonetheless be noted that the jurisdiction of such a court would be limited to those States that have ratified the Optional Protocol to the Refugee Convention.

Another essential reform of the system should include the introduction of humanitarian visas, which refugees can request at the relevant EU State’s embassy in their country of origin. Once this hurdle is cleared, the embassy would be required to cooperate with the specialised European agency (possibly the European Asylum Support Organisation) in charge of assessing and enacting the relocation orders, and ultimately determining responsibilities across the EU Members. It has been suggested that this agency (if not the EASO) could resemble the European Central Bank. It would be feasible to finance it either via Member State contributions proportionate to their GDP or directly through the EU budget. This would ultimately relieve the burden placed on frontline Member States, and above all, end to the current dangerous obstacle course across the Mediterranean Sea, and create safer routes to Europe. With humanitarian visas, protection seekers could finally travel to Europe legally, and avoid smuggling routes altogether.

Another, possibly utopian solution could be to create Charter Cities in either the home State’s uninhabited territory, in States neighbouring the conflict zones or – as suggested by the Egyptian businessman Naguib Sawiris – on uninhabited islands. This system would resemble the way in which the British leased Hong Kong from China, which also served as a safe haven for those fleeing Mainland China during the 1945-1950 civil war. The Charter or Refugee Cities could be governed by officials from countries with a high level of rule of law or even the EU or the UN. In these cities, refugees might establish a well functioning economy, undertake commercial activities and be given a purpose with a bright future to look forward to.

The Author

Lisa Weihser studied Law (LLB) at the University of Groningen in The Netherlands before pursuing a Master of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Her main interests are International Refugee Law, Humanitarian Law and Counter-Terrorism in International Law.

Article picture: denzel via Pixabay


Law & Philosophy