Dismantling the Fortress

Dismantling the Fortress

The Syrian tragedy has exposed the shortcomings of the EU’s asylum policy. The newly agreed-upon rules will not help to cure the system’s birth defects. What the EU needs is real burden-sharing – or at least more competencies for the Commission.

A destination of hope

As the Syrian civil war keeps raging, more and more people flee the country. The UNHCR expects that, by the end of the year, 3.4 million Syrians will have left their home to escape large scale violence and misery. Although the vast majority have found provisional shelter in neighbouring countries, many move on to Europe. Their experiences show that, despite its long-standing commitment to establish a Common European Asylum System (CEAS), the EU is still far from a unified approach in the protection of displaced persons.

National opposition and unequal burden-sharing

Some states, particularly Germany and Sweden, have taken a comparatively liberal approach in accepting Syrian refugees. When the German government started to fly in 5000 Syrians, mostly from Lebanon, for ‘temporary protection’ in mid-September, some hoped that this would stimulate similar commitments by other member states and, ideally, a common European response.

They have been disappointed. To the contrary, a number of member states continue to adopt a restrictive policy, with visa restrictions for Syrian nationals and acceptance rates close to zero. The situation is particularly severe in Greece, which is dealing with an extremely high inflow while at the same time having to fight domestic economic crisis. Non-governmental organisations report that many Syrian asylum seekers are refused entry or put into detention upon arrival. If they manage to apply for protection, their eligibility is often insufficiently checked.

Earlier this year, the EU Parliament has endorsed amendments to the CEAS which seek to further homogenize reception procedures and enhance the rights of refugees. But even if these amendments are rapidly translated into national law, the legislation is unlikely to provide for a unified policy due to two fundamental birth defects.

The first is the failure of the current system to establish an effective burden-sharing mechanism. Under the Dublin II regulation, the member state of first entry is the one responsible for processing an applicant’s case. So far, the project-based financial aid from diverse EU funds has not eliminated the incentives for border states to deny asylum seekers access to regular procedures, particularly in situations of massive inflow.

The second shortcoming is the persistent dominance of national actors in the implementation of the common asylum policy. The Temporary Protection Directive in effect provides the possibility of emergency relocation within the EU in cases of “mass influx”, which would be a useful instrument to deal with situations such as the Syrian crisis. However, the authority to invoke the Directive lies with the member states, and even if this is successfully done, participation is entirely voluntary. Under the conditions of unequal burden-sharing, free-riding of member states that are less affected by the inflow is encouraged, so it is hardly surprising that the Directive has not been applied since its enactment in 2001.

Two options to change the fate of millions

Obviously, the two problems are closely interconnected. As a consequence, the EU has two options to make the CEAS work: The first option would be to grant the Commission the right to apply the Temporary Protection Directive independently from the member states, and to determine who has to accept how many asylum seekers in a binding way. This is more of a workaround for emergency situations, and it would leave the underlying structural problems untouched.

The more fundamental alternative would be to dump Dublin II altogether and establish a fixed quota system, based on indicators such as population and economic performance, for the distribution of responsibility for asylum claims. The ‘allocation’ has to take place before the actual processing of the applications because in countries like Greece, one of the main problems is getting access to the regular asylum procedures in the first place.

Both of these options are ambitious. But the Syrian tragedy should remind European leaders that those who have the most to lose in negotiations about asylum policy are not those who conduct them.

by Kilian Spandler

The author is Assistant Director of IFAIR’s South and East Asia regional group and a PhD student in International Relations at Tübingen University, Germany. In his dissertation, he is analysing stability and change in the regional institutions of Europe and Southeast Asia.

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