The European refugee crisis and EU governance

We have all been greatly affected by the unfolding European refugee crisis and the EU’s failure to offer a coherent response. Another EU default, in the same summer as the Greek debt crisis. Most observers will agree that both crises are not just of the EU’s own making, but that does not erase the fact that the policy responses appear wholly inadequate.

In my previous blog I critiqued the rules-based approach of EMU and Eurozone governance. Not that it is bad to have good rules, but for a well-functioning economic and monetary union a mere set of rules on national budgetary discipline is insufficient. Some kind of fiscal transfer mechanism is required. Today I read that a French member of government, Mr Macron, is of the same view.

It is remarkable that a similar analysis can be made of the refugee crisis, as pointed out in Wolfgang Munchau’s excellent FT opinion piece (with apologies to those who do not get behind the FT wall). No need to copy or summarise here, but do read it if you can.

The refugee crisis is a sobering lesson for us, EU lawyers. There is a nice apparatus of EU legislation, harmonising national laws on asylum and the treatment of asylum seekers. There are clear rules in the Dublin Regulation on which country is responsible for dealing with a particular asylum claim. There is the EU Charter of Fundamental Rights which is supposed to protect everyone. There are mechanisms of judicial review, with the possibility for any judge in any EU country to refer questions to the EU Court of Justice – if need be under an accelerated procedure.

Has any of this worked this summer? Not at all. The Dublin rule is proving untenable, but equally hard to modify. Asylum claims ought to be judged by each country under identical rules: the Geneva Convention and EU legislation. But we read and see that there are huge discrepancies in the acceptance of such claims. Germany and Sweden are the most receptive countries, and the Hungarian prime minister considers that refugees are a German problem – implying that they are wholly unwelcome in his country. So far for the rule of law in the EU.

Consider also the following example of how the law can be part of a virtual world which is totally detached from the real one. One of the core principles governing the Schengen free movement zone – which the EU calls the Area of Freedom Security and Justice … – is the principle of mutual trust. It means that, in matters such as asylum, all EU countries are full protectors of human rights, and that their relations should be governed by this principle. They cannot check, when returning an asylum claimant to another EU member State, whether that claimant’s rights will be respected. The EU Court of Justice even went so far, less than a year ago, to declare that this principle needs to be protected from interference by the European Court of Human Rights, which fortunately is a bit less presumptive about standards of human rights protection across Europe.

Mutual trust, this summer? All EU countries offering refugees treatment which respects their human rights? Just think of all the images we are seeing.

So what to do about all this? It is easy to adopt the regressive position of abandoning Schengen, and reinstating border controls. Only, if you think this through, it is no solution at all (again pretty similar to the Eurozone crisis). Even if one discounts the negative effects for everyone else moving freely around a borderless Europe (which does not include the present London-Brussels-London mover of course): the fact is that even more refugees would get stuck in Italy, Greece, and Hungary, which are the most affected borderline states. That would be even less sustainable than the present situation, in a crisis such as the one currently engulfing Europe. Imagine the multiplication of the scenes at Calais, at so many internal EU border crossings.

The crisis proposals which are currently on the table are focused on refugee redistribution – greater EU solidarity, in other words, than under the current Dublin Regulation. Not easy to achieve, in light of the politically toxic nature of immigration in so many countries. But it also dances around the problem of who decides about refugee status. To me, at this point, it seems that this is a policy area which calls for institutional federalism. The EU has so many agencies already. Why not create an EU asylum agency, with offices in most if not all member States, which decides on EU asylum claims. An institutional response, rather than a rules-based one. Federal law, administered by a federal agency. The advantage would not only be that there would be unified decision-making, but also that this agency, if operating under a well-designed status of independence, could de-politicise the treatment of asylum claims. Just like EU competition policy is de-politicised. Perhaps food for further reflection.