The European Union response to the refugee/migration crisis

Migrations have always been part of the Humanity History and a benefit for its development. Today, populations trying to reach the boarders of the European Territory have different hopes and ambitions, if some will try to enter by legal means it is not always the case due to the emergency of specific situations: wars, political oppression or poverty.

The European Union seems to be the only way out to theses circumstances, for whom looking for the protection of their fundamental rights and a better life including access to education and labor. As a matter of facts, During the years 2015 and 2016 more that 1 billion persons arrived in EU, mostly trough the see and landed in the coastal states of the EU. It has been the biggest historical influx of people in Europe, most of them having run away from the war and the terrorism which strike Syria as well as other countries.

Since the beginning of the crisis, measures have been taken to stabilize the current case at the European level even if it had and  it is still a sensitive subject regarding the cooperation between Members States and theirs politics : the new Italian government and the Aquarius Case, Viktor Orbán politics related to migrants are exemples of cooperations issues within the European Union. In this essay, it will be depicted the European Union response to the refugee/migration crisis, terms which need to be defined in the first place. In order to give a complete analysis of the topic, parallelisms with the content of the course will be made. It will be seen the EU legal instruments and fundamental principles in regards with the refugee/migration response, as well as how the institutional system works on this matter and the decision-making procedure to finally linked the EU judicial system and judicial enforcement of EU law with the subject. In order to apprehend rightly the subject a definition of the terms and their implications is necessary. It is required to differentiate a refugee and a migrant because it leads to legal differences.  The statute of refugee was internationally defined in The Geneva Convention of 1951, article 1 and it’s applicable to a person who is outside of its nationality country or where she or he has his/her usual residence; who is afraid with good reason of being persecuted because of its community, by its religion, by its nationality, by its membership in a certain social group or by its political beliefs, and who cannot or does not want to refer to the protection of this country or to return to it because of the fear.

The definition is not the same for migrants because of the absence of danger and fear, they are not forced to leave their countries they are doing the choice to leave and go elsewhere: The UN Convention on the Rights of Migrants declared that \”The term \’migrant\’ in article 1.1 (a) should be understood as covering all cases where the decision to migrate is taken freely by the individual concerned, for reasons of \’personal convenience\’ and without intervention of an external compelling factor. » 

It is known that the European Union is an organization of integration and it is important to mention it within this topic which is the refugee and migration crisis. In facts if there is a real interest to treat it, it is because of the question of the competences in those areas. On the refugee area, It was the Maastricht Treaty of 1993 which integrated the intergovernmental cooperation for international protection in the institutional framework of the EU, however the Court of Justice was not competent to deal on this area and the competences were limited. The Treaty of Amsterdam and Nice had a major impact because of the new competences granted especially in the legislative field and the decision making process (co-decision was possible) and the Court of Justice had the right to intervene on some specific cases. After the adoption of the Tampere program in 1999 the European Council decided that European common policy required to be established step by step: firstly by the adoption of minimal norms which were, then, supposed to lead to a common process and an uniform statute for the refugees seekers in all the EU. This program led to the Common European asylum system (CEAS). Finally, The Treaty of Lisbonne, in 2009, really changed the system: its was not anymore a question of minimal norms but a real establishment of a common policy on asylum with uniforms procedures and an European statute of the refugee. The Treaty also modified the decision making procedure on asylum: the co-decision procedure became the model procedure, furthermore, the judicial control made by the court of Justice was improved : preliminary rulings can be asked by all the jurisdictions of a Member State, and the jurisprudence became more an more important as it will be seen later.  In addition, since this time, the article 80 of the TFUE express explicitly the principle of solidarity and the equitable share of responsibilities between the Member States. By contrast, the migration and the migrants question is different, in relation to the legal immigration the EU is competent to define entry and residence conditions of foreigners on a member states and according to the family reunification. But, Even if the EU goal is to establish a well-balanced approach of management of the legal migration and fight against the illegal immigration , Member States still decide of the number of foreigners that can enter in their territory and here come the question of EU integration in this area: It can be seen that in contrast with the refugee matter EU Member states still maintain a kind of sovereignty regarding to this subject due to its sensitiveness.

The EU competences are not as important as on the refugee matter even if the EU try to fight illegal immigration with various means (frontex agency, readmission agreements, here it’s a matter of external competences (art.261 TFEU)). In was then, logic that the Lisbon treaty expressed that the competences are shared between the Member States and the EU but the treaty has an important impact it introduced the co-decision process, the qualified majority for legal migration and established the ordinary legislative procedure for legal and illegal migration (Council and Parlement are on the same feet). In 2015, The Commission published an European Diary on Immigration which was supposed to deal with the crisis and led to the adoption of norms in the European Union (it will be seen later). Theses situations remind the principle of conferral, subsidiary and proportionality of EU law seen in the course.       

It is necessary to come back now on the sources of laws and their implications: the article 80 is a source of the EU law and a primary one, the article 78 established the common policy on asylum and there are others as the article 18 of the Charter of Fundamental Rights or the title n°5 of the TFUE related to the space of security and freedom and the Protocol (No 24) of the TUE on asylum for nationals of Member States of the European Union. The primary sources for migration are the article 79 and 67 of the TFEU, it is required to notice that article 80 is applicable too to the common policy of migration.Theses sources are primary law of the EU which means as it was seen in the course that is composed of the treaties and the general principles governing the EU and International treaty rules subject to the Vienna Convention on the Law of Treaties’ of 1969. The primary law is at the top of the hierarchy of norms and get the benefit due to its statute of the absolute primacy in the juridic order of the Union and have direct applicability and direct effect on Member States. (Van Gend and Loos Case) On this basis, Regarding asylum, the ordinary legislative procedure applies to pursued the objective of the creation of a \” European system of asylum \” (art. 78 TFUE). Regarding immigration, measures can be taken by virtue of the ordinary legislative procedure too but only in certain spheres of skills because, as it was seen member states have capacities to fix the volumes of entrances to their territory. The ordinary legislative procedure is made by co-decision between the Council and the European Parliament, procedure that can be linked to the principle of institutional balance of EU framework. The secondary law regarding the migration and refugee topic is various, this part will be clearly linked with the relation between the Members States and the EU.  The secondary law is composed of regulations, directives, decision, recommendations and opinions, it is necessary to focus on the binding ones because they are the more significant one. In the Refugee and Immigrations areas it will be found mainly regulations in directives (exemple for migrations: The European credit card for highly qualified employments; A unique working licence;A residence permit for the victims of human trafficking). In the relation between Member States and the EU they have an important role: Regulations have direct applicable and direct effect because they don’t need implementation in the national law. Directives have to be implemented and that let a margin of appreciation of the States which is a different relation with the EU. In relation with the topic, the Regulations Dublin II of 2003 was a regulation 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 a stateless person, In fact it is important to mention it because of the implications of such measure in regard to the cooperation between the Member states: the main principle was that the member state on which a refugee was entered in the EU should be in charge of him, in order to avoid « forum shopping ». This treaty was modified (Dublin III in 2013) after a law-case called N.S where the problem was explicite: the fact that another member state can send back the refugee to his entry state because of this principle, which was clearly not the solution to face the refugee crisis, one or two states can not efficiently take care of the magnitude of the task and a certain solidarity between the Member States was and is still essential.

Normally in order to respect the article 78 of the TFUE which plans the principle of solidarity and the fair division of responsibilities, it is a logical fact that every Member States should accept the same proportion of refugees on their territory  and treat their demande in respect to the principle of effectiveness and equivalence however several states categorically refused as Hungary and Slovakia. That is why, The Court of Justice intervened using the argument of the Fundamental rights and the right of a due process arguing that it was made a bad application of the Dublin II, justify herself that by imposing the treatment of applications for asylum by the country of first welcome was developed in a context where the set of States participating respects the fundamental rights and that Member states can agree on mutual confidence. In other words, the transfer of an asylum seeker towards the Member state indicated as in charge when it is known that this member state ignore or can not maintain conditions of welcome and that the applicant will run a real risk of being subject to inhuman and degrading treatments is not possible anymore a reference was made to article 4 of the charter of the fundamental rights of the European Union. In consequences, directives have been modified: The revised Reception Conditions Directive 2013//33 of the 26 June 2013 determined that the minimal norms of reception of refugees (such as housing) in all the EU and that the fundamental rights of the concerned persons need to be fully respected. Then, The Qualification Directive modified in 2013 gave and clarified the statut of refugee and the conditions to obtain international protection (there are the same that in the Geneva convention) however as a directive, States can have a margin of appreciation which can lead to a different ratio of recognition between the Member States. The revised Asylum Procedures Directive complete the qualification procedure in indicating how Member States must do the asylum demand examination procedure. In 2015, The Council took a decision 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece In order to equally share the responsibilities of each states ont this matter. 

It was to the establishment of quota but it was not a success, some states still refused to cooperate and will have to face sanctions. In relation with sanctions, EU judicial system and judicial enforcement of EU Law, the N.S case is an exemple, and the Role of the Court of Justice of the European Union is essential in this matter in order to the preliminary rulings, in interpreting EU Law and settle dispute. But the major exemple of the action of the EU in the judicial matter is the Hungary case and the infringement procedure in front of the Court of Justice; the European Commission decided to refer Hungary to the Court of Justice of the European Union (CJEU) for non-compliance of its asylum and return legislation with EU law, the infringement procedure being a legal action against a MS for failure to fulfill an obligation under EU law. In conclusion, the refugee/migration crisis is a perfect subject to understand how the EU works and a solid topic to remind us all the content of the course even if the essay could have been even more developed it was seen that the sources of the EU Law and their impact, the question of the competences, the principal of conferral, the decision-making (in a minor part) and the judicial system were approached.