“The winter is approaching” – Juncker and his state of the union address – has it said enough regarding the refugee crisis?

By Kanad Bagchi

With each passing day scores of lives are either ended by bodies being washed ashore or are lost in the faceless congregation of ‘refugees/migrants’ on the peripheries of Europe and beyond. Both the ‘European family’ and the ‘European Fabric’ has laid itself bare in the face of the uncontainable refugee crisis brewing in the heart of Europe, uncovering the stark divide between the East and the West. Amidst the melancholy that has reached the shores of Europe, it is vital to take pause and query whether the present catastrophe could have been contained and what steps are being taken by the European Union (hereinafter referred to as “EU”) towards this end. In this regard, Juncker’s State of the Union address 2015 (hereinafter referred to as “Union address”/ “Address”) comes at an auspicious time and has been met with pensive eagerness. The Union address rightly devotes significant attention towards the refugee crisis and has proposed a slew of measures, both immediate and long term, to alleviate the present situation. This post looks through these developments and assesses whether the measures adopted thus far and proposed for the immediate future are sufficient to improve the current circumstances and prepare the EU and its member states (hereinafter referred to as “MS”) to effectively deal with the continuing crisis.

At the outset the tone and tenor of Juncker’s speech highlights a sense of despair “…there is not enough Union in this Union…” yet determination “…it is high time to act to manage the refugee crisis…”. It also reminds those assembled that, Europe has at some point been a continent of refugees, which today represents “…a beacon of hope, a haven of stability…”. Under the prevailing atmosphere of animosity, alienation and indifference in certain MS like Hungary, any less emphasis on Europe’s past lineage and moral obligation would have been hollow and perfunctory. Indeed, Juncker made a veiled yet stern reference to certain MS erecting ‘walls’ and ‘fences’ and to the blatant vandalism towards refugees, which has increasingly been observed in parts of Germany and elsewhere. He did not mince words when he declared that the EU’s achievements in formulating and augmenting common standards for asylum applications were in jeopardy as a result of its non-implementation by certain MS. He also clearly stated that the Commission will not refrain from initiating infringement proceedings against errant MS.

Some of the more definitive measures contained in the address ranges from emergency relocations to separation of refugee/migrant claims, the proposal of a permanent relocation mechanism, strengthening the Frontex system, a legal migration package, and a long-term foreign policy goal. This post shall consider each of the above in turn.

When you are only a number – Emergency Relocation of 160,000 Refugees

The Commission unveiled its plans to relocate a total of 160,000 of those refugees arriving on the shores of Italy, Hungary and Greece, seeking to propose this measure at the Council meeting on 14th September 2015. That MS would agree to such an intake is at best wishful thinking and at worst illusionary optimism. The author is quickly reminded of the persistent opposition by MS to any EU mandated quota to relocate 40,000 refugees in May, where following much delay and skepticism, some 32000 refugees were agreed to be taken ‘voluntarily’. Although Juncker is right to capitalize upon a visible change in the attitude towards refugee intake observed in several MS marked by a u-turn in France and UK, it is perhaps unrealistic to expect that the above proposal will be readily accepted by all MS, without protest. In this regard, Juncker’s address lacks a viable alternative to this core proposal and does not in any manner adequately reflect lessons of the past. Nor does the speech urge non-EU MS like Switzerland or Iceland, states which have shown renewed vigor in welcoming refugees to their lands, to remain committed in their endeavors and continue their solidarity. A State of the union Speech indeed is meant to be for the Union as such, however, considering the fact that the ‘Union’ can do with assistance on such cross-border matters, the address does not contain any overtones beyond the borders of the EU. The speech also does not acknowledge the use of the ‘sovereignty clause’ in the Dublin Regulation by certain MS as an instance of genuine solidarity, and fails to call upon those MS, which are able and willing to lend an extra hand. As the situation worsens, it will be an excruciating wait to see the unfolding events until the next Council meeting and one can only hope that the present targets with respect to relocations are given effect to, bona fide.

Separation of refugees from ‘Safe’ and ‘unsafe’ countries of Origin

Acknowledging that all of the EU’s resources in the present circumstances need to be directed towards certain groups, the Commission proposes to triage asylum seekers on the basis of their country of origin. Those deemed to be arriving from countries falling within the “common EU list of safe countries of origin” (countries which meet the basic Copenhagen criteria for EU membership) will be presumed to be safe, enabling border authorities to fast- track their applications and focus closely on refugees coming in from other countries, notably from Syria. While Juncker makes a specific reference to the Western Balkan countries being considered to be included in the list of safe countries of origin, he nonetheless recognizes that the fundamental right to asylum is not to be taken away from citizens belonging to those countries.

While one can agree with Juncker that in the present context, a more targeted or selective approach towards dealing with asylum applications is baneful but necessary, parts of the speech exhibit unmindful contradictions and incoherence. Juncker claims in his address that segregation is necessary, yet that it is merely “a procedural simplification”. He states that Western Balkan countries will be included in the safe country list, but nonetheless its citizens would not be completely overlooked. He also states that ‘focus’ will be on Syria but the right to seek asylum will be available to all, including citizens from Albania, Bosnia and Herzegovina, and the likes.

For one thing hardship and persecution can never be weighed, cut thinly and dried to decipher whose suffering weigh heavier than others. However an individual can probably weigh his own immediate chances of a successful asylum application, with a little more clarity and precision coming from the highest executive of the EU. There is no denying the fact that even after almost seven years of independence, political and acute economic exigencies have forced several minority groups from Western Balkan states especially Kosovo to seek refuge in Europe. At this particular time of political and social turmoil, a little more coherence, clarity, and if the author may add, circumscription in the EU asylum policy is essential.

Permanent relocation mechanism and a legal migration package

Taking the cue from its Agenda on Migration, Juncker proposed a permanent relocation mechanism which would be automatically triggered in the face of a mass influx, like the present one, and which would redistribute third country nationals based on certain specific criteria. The mechanism will provide support towards the needs of the migrants and their family and provide for a shelter and other basic necessities. In addition, Juncker specifically remarked that he favors the issuance of work permits to immigrants to earn their own livelihood, pending their asylum application. This is a clear step towards a more sustained labor mobility package which had been proposed in the Migration agenda which sought to convert the migration crisis into a “well-managed resource” mindful of the long term demographic challenges facing the EU as a whole. Towards this end, a specifically tailored ‘legal migration package’ has been proposed entailing rules on visa policy and effective integration of migrants into the community of the MS. A more detailed proposal is expected by the end of the year and the author would reserve his comments until then. Suffice it to say, that in principle, an automatic permanent relocation mechanism with an objectively verifiable set of criteria can go a long way in addressing the lacunas in the present ad-hoc system of indecisive sprinkling of immigrants throughout the EU. Moreover, turning the present crisis into a demographic advantage only signals a win-win situation for both the EU and third countries.

Strengthening Frontex

Again building on its Migration Agenda, Juncker envisioned a much larger role for Frontex, which has been at the centre of the current crisis and has been instrumental in providing logistical and other rescue support to the EU. In his vision to transform Frontex from a coordinating agency into “a fully operational European border and coast guard system”, it is proposed to substantially increase the funding for the organization to reasonable estimates of about three times its current operational budget.

Frontex’s functions, such as intelligence gathering on migration movements and its role in facilitating the return of failed asylum claimants, should be strengthened and collated into one cohesive institutional set up and afforded increased flexibility, both budgetary and administrative. Such an approach can provide the EU with a one-stop destination for crisis resolution in the face of prevailing scattered responses.

Foreign policy goals

With all the immediate measures in place, Juncker outlines the foreign policy objectives of the EU as an effective means to “address the root causes” of the present crisis and suggests a more sustained and ‘assertive’ presence in the EU’s neighboring countries, beset with war and instability. He refers to Libya and urges further contributions from the EU and MS in relation to securing the presence of a government of national accord. While broaching Syria, the Speech acknowledges the failure of both the international community and the EU in providing for reprieve to the people in the region and calls for a “European diplomatic offensive” to redress this issue. Further, Juncker proposes to set up a dedicated emergency Trust Fund, with an initial corpus of €1.8 billion for Africa so as to enable it to attain continued stability in the region. So far the EU’s involvement beyond its borders has been rather limited and cautious and largely in the nature of financial and economic assistance, with some political and diplomatic undertones. While Juncker’s proposal for a broad based and robust foreign policy engagement with affected third countries especially with respect to curbing human trafficking in the Middle East is a step in the right direction, it must simultaneously look within and engage closely with the border countries and its Western Balkan partners, as the focus shifts from the Mediterranean coast. Significant migration flows have been detected on routes passing through the Western Balkans suggesting a resurgence of human trafficking operations bolstered by the easy accessibility to Western Europe along with disturbing reports indicating ill-treatment and abuse of migrants by MS governments on this route. Such incidents demand a severe response from the EU demonstrating its clear stance against the violation of human dignity. With respect to this Federica Mogherini, in the informal meeting of EU foreign ministers acknowledged that more needs to be done with respect to engaging EU candidate countries and rising above “blame games”. A sustained foreign policy outreach is essential to resolve the present crisis, which she rightly declares is “here to stay”.

Final Comments

After the Sovereign debt saga, the migration crisis has exposed some of EU’s most inherent constraints and continues to provoke both urgency and skepticism in the minds of integrationists and others alike. In the face of ever increasing divisions in the EU, the state of the Union address provided the EU with an opportunity to unite and speak in one voice while reviewing its stated positions. The address assembles its pieces from the Commission’s migration agenda and most, if not all of the proposed measures are likely to be put into action only by the end of the year. Much depends on the next Council meeting  in which the EU will decide on the fate of thousands of refugees who have forsaken their lands in search of peace and calm.

Within the system that exists and operates, the present crisis is a rude wake up call for the EU to get its act together as the entire world watches with expectant eyes. A comprehensive package consisting of political, administrative and foreign policy dictates has to be accentuated with a change in the legal framework. In this regard, it will be myopic to suggest at this stage, that the entire Dublin system has failed. However, one must acknowledge that certain aspects of the system, especially burden sharing within the EU, needs rethinking. Moreover, a concerted effort needs to be put in place towards the proper implementation of the Dublin Regulation in as much as it can provide MS and the EU with the necessary tools to avert a future crisis. It is anybody’s guess as to why the Early Warning Mechanism under Art. 33 of the Regulation has not been effectively implemented or complied with. It provides a system under which MS with inadequate or faltering asylum systems have to produce a preventive and crisis management action either in anticipation of a future strain or as a response to current vulnerabilities. The mechanism under the Regulation was specifically enacted for the purposes of anticipation and preparedness in the wake of a crisis. In this regard, it is the author’s opinion that the current levels of strain observed in certain MS like Hungary and Italy with respect to poor asylum conditions could have been adequately addressed had the above mechanism been respected. The Commission and the European Asylum Support Office have been given a shared responsibility in this process and it is urged that a concerted endeavor be undertaken in this regard. If indeed Juncker aspires to live in a different Europe, one that respects the worth and dignity of an individual, it is as he states a “journey…still long”. In that narrow sense, Juncker’s speech does reflect “honesty”, however, it is distant from existent reality.

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