To What Extent is the EU Failing to Address the Refugee Crisis?

31631 words (127 pages) Dissertation

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Abstract


The Arab Spring, having spawned the largest displacement crisis since World War II, has forced an unprecedented number of refugees, desperate for asylum, onto the shores of Europe in what has manifested as a humanitarian crisis of incalculable scale.

A successful response to this crisis, it is suggested, must be predicated upon the EU and its MSs adopting a ‘dual’ construction of solidarity – where the promulgation of MS-refugee solidarity is espoused alongside the traditional, interstate exposition – allowing the EU to address the crisis in a manner that combines, both, efficiency and welfare consideration. It is proposed that this ‘dual’ conception of solidarity should be understood as being underpinned and motivated by three, interdependent, core tenets, derived from Rawls’s “cooperative virtues”: fairness, fidelity and trust. However, in its response to the crisis, both as it pertains to the CEAS and to its external border policy, these central components have been subverted, or selectively applied, by the EU and its MSs. This has precipitated the application of a narrow, unilateralistconception of solidarity at best, and an outright abrogation of ‘dual’ solidarity at worst, with both consequences working to perpetuate an already desperate situation for refugees and MSs alike, notwithstanding the European Courts’ endeavours to impose ‘dual’ solidarity where the MSs’ refusal to do is particularly egregious.

Moving forward, a loyal adherence to ‘dual’ solidarity would ideally realise a centralised asylum system, complete with a supranational relocation mechanism, in conjunction with a de-securitised mandate for the border. However, it also appears that the political will for a comprehensive, holistic expression of ‘dual’ solidarity is lacking, which in itself raises important questions about the EU’s future as a cooperative, political union.

List of Abbreviations

CEAS Common European Asylum System
CJEU Court of Justice of the European Union
EASO European Asylum Support Office
EC European Community
ECHR European Convention of Human Rights
ECtHR European Court of Human Rights
EU European Union
EUCFR Charter of Fundamental Rights of the European Union
JO Joint Operations
LTV Limited Territorial Schengen Visa
MS Member State
NGO Non-Governmental Organisation
RABIT Rapid Border Intervention Teams
SAR Search and Rescue
SBC Schengen Border Code
SVC Schengen Visa Code
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
UN United Nations
UNHCR   United Nations High Commissioner for Refugees

Introduction

On the 17th of December 2010, a young, Tunisian street vendor’s self-immolation unleashed the ‘Arab Spring’.[1] José Manuel Barroso, President of the European Commission, was assiduous in his zealous support of this fight for a “future of freedom and dignity”,[2] asserting that “Europe’s place is at the side of those who aspire to dignity, democracy and freedom”, whilst simultaneously stressing the importance of solidarity as a basic value of the EU; a value to be practiced not only within the Union, but towards all with a “commitment to a better present and a better future”.[3]

However, over four years on, his words ring disquietingly hollow.

In 2015 alone, the EU received an unprecedented 1,015,078 claims for asylum.[4] Whilst the on-going Syrian conflict, a product of the Arab Spring, has manifested as the principal generator of refugees,[5] persistent violence, abuse, and destitution in countries such as Eritrea, Afghanistan and Kosovo has forced hundreds of thousands more onto the shores of Europe in what is the largest global displacement crisis since World War II.[6] Yet, in response, the EU has deployed “weak, slow, ineffectual and poorly coordinated mechanisms”,[7] which have exacerbated, rather than ameliorated, the humanitarian and political damage wreaked by the crisis.Indeed, the Dublin Regulation,[8] the cornerstone of the Common European Asylum System (CEAS),[9] places responsibility for an asylum application on the refugees’ first Member State (MS) of Arrival,[10] overburdening Southern MSs, resulting in immense human misery. At the external border, the imposition of visa requirements, coupled with carrier sanctions, operate so as to necessitate perilous journeys across the Mediterranean, whilst the EU’s emphasis on securitisation has legitimatised a disregard for human rights.

The answer, it is suggested, lays not in an exclusive commitment to interstate solidarity. Rather, a ‘dual’ construction of solidarity – where the promulgation of MS-refugee solidarity is espoused alongside the traditional, interstate exposition – would allow the EU to successfully address the crisis in a manner that combines, both, efficiency and welfare consideration. In fact, had Barosso given practical effect to his admirably broad conceptualisation of solidarity, the humanitarian disaster that continues to unravel on Europe’s extremities might have been avoided.

However, ‘solidarity’ has been left largely undefined within the EU’s legal landscape. Therefore, to mandate an understanding of the principle without an intelligible comprehension of its core tenets would leave a definitional lacuna, exposing the term to a myriad of incongruent, contrived interpretations – a natural consequence of divergent national interests that have thus far thwarted the EU’s response.[11] Therefore, it is suggested that this universal, holistic understanding of solidarity is attainable by reference to three, core tenets, derived from Rawls’s “cooperative virtues of justice”: fairness (on behalf of MSs to each other, and towards refugees), fidelity (by MSs to EU and International law) and trust (as between MSs).[12]

However, this essay will seek to expound on the notion that, in its response to the crisis, both as it pertains to the CEAS and to its external border policy, these central components have been subverted, or selectively applied, by the EU and its MSs. This has precipitated the application of a narrow, unilateralistconception of solidarity at best, and an outright abrogation of ‘dual’ solidarity at worst, with both consequences working to perpetuate an already desperate situation for refugees and MSs alike, notwithstanding the European Courts’ endeavours to impose ‘dual’ solidarity where the MSs’ refusal to do is particularly egregious.

Ultimately, it will be concluded that, upon moving forward, adherence to ‘dual’ solidarity mandates, in particular, a centralised system of asylum. Yet, a lack of coherent, political will threatens to stymie such an approach – an understanding that will operate not only to exacerbate the crisis, but also raise portentous questions about the EU’s future as a political union, with the crisis having already bared the friability of European order.

A Principled Outline

It was Schuman, in his celebrated Declaration of May 1950, who first presented the seminal notion that “solidarité de fait”[13] was, and remains, a necessary precondition to an effectual multistate union, with numerous provisions of EU primary law,[14] in addition to multiple ruling’s,[15] having since embedded the principle into the EU’s legal infrastructure.

However, any certainty pertaining to the principle begins and ends with an acknowledgement of its existence.[16] The Lisbon Treaty, as well as its predecessors, provides minimal assistance into its definitional determination,[17] with, as Lang illustrates, the “the benchmarks against which to measure its fulfilment [left] undefined”.[18] Two fundamental, yet inextricably related, difficulties arise from this inherent nebulosity: the obligations it can be said to impose are uncertain,[19] whilst ascertaining between whom the principle relates is also unclear.[20] Therefore, in order, through the complex prism of solidarity, to meaningfully examine the EU’s failures in addressing the crisis, it is of critical, initial importance that these matters are considered.

A ‘Dual’ Conception of Solidarity

Whilst the Treaty of Rome[21] appears to have ascribed solidarity an almost exclusively statist form,[22] Hilpold observes that “the situation changed…in a radical way”[23] with the inception of Union citizenship in the Maastricht Treaty,[24] a concept which provided, for the first time, a “linkage of social solidarity”[25] in conferring social rights to migrants, notwithstanding their exercise of economic rights.[26]

In underpinning a perspicuous social dimension to the internal economic market, the EU conferred implicit recognition to a postmodernist notion that the individual, rather than the State, exists as the protagonist in the European integration process;[27] that the State’s primary function is to serve the well-being of its population, rather than existing as “a means of themselves”.[28] Hence, with European citizens as the primary addressee of action taken light of solidarity, [29] an enduring, solidarity-based relationship with the EU and its member states is established.

Yet, the ‘primary addressee’ of EU asylum law is not the EU citizen, nor the MS. Rather, as a “particularly vulnerable group in need of special protection”,[30] asylum law functions to protect the refugee.[31] Just as the EU’s recognition of a social element within the internal market has created a relationship of solidarity with its citizens, EU asylum law must, if to avoid formal fallaciousness, be regarded as having generated a similar relationship of solidarity between refugees and the EU, an understanding that garners further legal corroboration from Article 62(2) TFEU,[32] which demands “solidarity between Member States, which is fair towards third country nationals”.[33]

Therefore, it follows that a ‘dual’, holistic configuration of solidarity can be understood to have spawned.

Defining ‘Dual’ Solidarity ­

To contend, however, that MSs are bound, in their response to the crisis, by EU law to exhibit ‘dual’ solidarity is patently meaningless unless and until it is substantively elucidated upon. Indeed, as Hartwig and Nicolaides incisively ask, “is it possible…to engender a ‘We perspective’[34] without having a pre-existing consensus on [solidarity’s] constituent elements?”[35] Indeed, given “the multiplicity of meanings and contents”[36] attributable to solidarity, persistent non-substantiation empowers MSs to distort the principle in light of their own, often conflicting, interests. For example, David Cameron, in professing the importance of demonstrating solidarity with refugees,[37] added that the UK would not participate in a program of refugee ‘burden’-sharing,[38] as this would “encourage them [the refugees] to make lethal journey’s to Europe”;[39] implying that such a redistribution proposal would be inconsonant with solidarity. Yet, just three days prior, German Chancellor, Angela Merkel, had stressed the need for a ‘sharing of duty’, conducted through an equal distribution of refugees between MSs in a manner that would respect the principle of solidarity.[40] Whilst Merkel’s comprehension of solidarity accords with the desirable, dualistic understanding propounded above, the principles’ indeterminacy accommodates different conclusions on identical facts.

Hence, it is proposed that ‘dual’ solidarity, as explicated, should be understood as being underpinned and motivated by three, interdependent, core tenets, derived from Rawls’s “cooperative virtues”: fairness, fidelity and trust.[41] The legal foundations on which these tenets rest, and the obligations that they can be said to confer, will be now explored.

Fairness

Article 80 TFEU, which calls for solidarity between MSs in the area of asylum and border control, explicitly refers to the “fair sharing of responsibility”;[42] that there should be, as Zürcher observes, a “natural kinship between members of the community”,[43] with Article 80 delimiting such a community so as to only include MSs. Article 80, motivated by a perception of shared problems and interests, therefore inferentially vindicates a rational understanding[44] of fairness; one conceived on grounds of latent reciprocity,[45] which Rawls argues assists in the promotion of a sense of fairness that is conducive to the realisation of a wider social justice.[46] As it relates to the crisis, MSs might therefore be compelled to act equitably in, for example, accepting a ‘fair share’ of refugees, due to a given State’s particular interest in reducing their number of illegal entries, the nascency of ‘migrant jungles’,[47] or, indeed, an expectation of homologous assistance when confronted with unrelated emergencies.

However, for Rawls, “well-ordered peoples have a duty to assist burdened societies”.[48] Hence, ‘dual’ solidarity must not be driven by mutual-benefit alone, but also by a normatively driven appreciation of distributive justice,[49] rooted in, as Deprmann observes, “the care and the moral responsibility for the rights or welfare of others”,[50] which insists on the “primary good”[51] intrinsic to distribution of membership into a given political community, such as the EU.[52] Indeed, Article 62(2) TFEU, requiring “solidarity between Member States, which is fair towards third country nationals”, is an exceptional example of its kind, envisioning not only the MS, but also the refugee as party to Zürcher’s ‘community’. Hence, fairness, in this regard, demands “a certain level of commitment and sacrifices of the group members”,[53] even where tangible, reciprocal benefit is lacking.

Fidelity

Respect for fairness ordinarily breeds fidelity.[54] As Rawls posits, fidelity “is but a special case of the principle of fairness applied to the social practice of promising”, requiring compliance with contracts voluntarily made.[55] ‘Dual’ solidarity therefore necessitates MS fidelity to obligations that arise out of EU membership.

Whilst the Regulations, Directives and Decisions which comprise EU asylum and border policy will be elucidated on below, the aforementioned ‘vulnerability’ of refugees inexorably entails, in an assessment of the EU’s crisis response, that the fidelity accorded to their fundamental rights is placed at the heart of any such discussion, the prime sources of which will now be considered.

The 1951 UN Convention relating to the Status of Refugees (‘Refugee Convention’) is the foundational source of legal obligations pertaining to refugees and human rights.[56] Importantly, all EU MSs are signatories to the Convention, and Article 78(1) TFEU provides that the CEAS must concord with its provisions. The Convention, for present purposes, espouses two, central precepts. First, it defines a refugee as anybody who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality” and is unable or, out of fear, unwilling to available himself of the protection of that country.[57] The United Nations High Commissioner for Refugees (UNHCR) has observed that those fleeing civil war in Syria invariably qualify for refugee status.[58] The second, cornerstone principle of the Convention relates to the principle of non-refoulement, the germinal requirementthat no refugee may be returned to the borders of a state where he or she fears persecution.[59]

At European level, two principal human rights instruments exist. The European Convention on Human Rights (ECHR),[60] overseen by the European Court of Human Rights (ECtHR), a permanent legal body of the Council of Europe. Whilst the EU has yet to accede to the ECHR on a supranational level,[61] as foreseen by Article 6(2) TEU,[62] all MSs have, like the Refugee Convention, ratified it. Article 3 of the ECHR, which prohibits torture or inhuman or degrading treatment or punishment, is of foremost concernment. The ECtHR has long-held the Article as implying a prohibition on refoulement where he or she could be subject to a real risk of treatment contrary to Article 3 – a judicial construction considered by Hurwitz as constituting a “de facto [albeit implicit] right to asylum”.[63] The second instrument ofconsequence is the EUCFR,[64] which exists as primary EU law and carries the same legal weight as the EU’s founding treaties,[65] with its provisions interpreted by the Court of Justice of the European Union (CJEU). Unlike the Refugee Convention or ECHR, it enshrines an explicit right to asylum under Article 18, whilst Article 19 re-affirms the principle of non-refoulement.

Trust

Eventually, maintained Rawls, satisfaction of the fairness and fidelity tenets will arouse sentiments of mutual trust,[66] which, as the European Commission has observed, acknowledging the essential link between trust and the generation of solidarity,[67] is “fundamental to a well-functioning asylum cooperation”.[68]

Indeed, distrust risks cultivating MS incentive to prioritise national interest over supranational coordination, thus contravening basic, interstate solidarity.[69]  Yet, trust is of peculiar significance to the EU’s asylum policy. First, the automaticity of the CEAS, as conferred by the Dublin Regulation’s ‘First State of Arrival’ rule,[70] is founded upon a trust-based presumption of fidelity – that fundamental rights are fully respected by all EU MSs;[71] a notion that itself finds legal expression in the well-established ‘presumption of equivalent protection’.[72] Second, in logically observing that “good neighbours make good fences”,[73] Pickles aptly surmises that the successful control of borders, and by extension, an asylum system,[74] is predicated on sentiments of “fellow feeling”[75] or mutual trust.

Having discussed the three tenets of ‘solidarity’, it is the EU’s failure to fully respect these, thus stymying a vital realisation of ‘dual’ solidarity, which will now be analysed in light of the Dublin Regulation.

 ‘Dual’ Solidarity and the Dublin Regulation

The establishment of a CEAS, following the Lisbon Treaty’s incorporation of Article 78(2) TFEU authorising the adoption of common asylum standards and procedures, was transformed from a mere, political objective, into a firm, legal commitment.[76] In 2013, following lengthy negotiations, the EU, in pursuance of such common requirements, adopted a recast ‘asylum package’. This included a recast of the Reception Conditions[77] and Asylum Procedures[78] Directives, the EURODAC Regulation, establishing a fingerprint database for those entering European territory,[79] and, most pertinently, the recast Dublin Regulation (Dublin III). Founded on exclusionary notions of security, however, Dublin III is afflicted by a structural unfairness that risks not only undermining the ‘dual’ solidarity tenets of fidelity and fairness, but positively encourages their subversion.

Structural Unfairness

  •  A Securitised Premise and ‘Mutual Trust’

The Regulation’s central principle, the ‘First State of Arrival’ rule, imposes an asylum-processing responsibility on the ‘first’, invariably Southern, MS in which the asylum-seeker arrives. By logical extension, an asylum-seeker may also be returned to this first MS of arrival if he or she engages in secondary movement.[80] Despite a decade of fierce criticism,[81] the rule nonetheless survived the recast process unscathed. In so doing, Dublin III continues to unfairly perpetuate the geographical disparity in migratory pressure between Northern and Southern MSs, with just five, Southern MSs processing 72% of all asylum claims in 2014.[82]

However, the rule is explicitly justified, judicially[83] and politically,[84] in a desire to inhibit systematic abuse by asylum-seekers, thus avoiding ‘refugees in orbit’[85] and ‘venue-shopping’.[86] As Noll identifies, this logic of ‘abuse’ securitises asylum;[87] by construing the refugee as a threat,[88] in their perceived capacity to undermine notions of state security, sovereignty and economic stability,[89] it legitimates the imposition of onerous, administrative measures, such as the ‘First State of Arrival’ rule, in the course of a “war against illicit migrants”.[90] This, therefore, exempts Northern MSs from their legal duties of fairness and responsibility to refugees and Southern MSs alike, which necessarily obstructs the formation of, both, the interstate and MS-refugee solidarity required in order to successfully address the crisis.

The inequitable variance in MS responsibility, whilst justified by a perception of insecurity, is afforded operational, legal potency by ‘mutual trust’. In essence, ‘mutual trust’ bestows an assumption that MSs assonantly respect the tenet of legal fidelity; that all MSs treat refugees in full accordance with national, European and International Law,[91] rendering the Dublin mechanism, both, ostensibly fair and fundamentally consonant with a refugee’s human rights. Yet, it is a norm lucidly characterised by Noll as predicated on the “fictive equality of divergent asylum systems”,[92] with Dublin III’s presupposition of legal harmonisation between MSs dangerously misplaced. Brekke, for example, observes that asylum-seekers received by Norway, a Northern European nation,[93] ordinarily encounter a clean, well-organised reception system, together with a two-year introductory programme and extensive welfare benefits.[94] In stark contrast, the ECtHR, in relation to Greece’s sorely overburdened detention centres, has remarked on the “appalling” hygiene conditions, lack of sanitary facilities, space, ventilation and the ever-present fear of assault and/or robbery, cumulatively amounting to a breach of Article 3 ECHR.[95] A dogmatic, ignorant reliance upon ‘mutual trust’ could, therefore, imply a violation of the principle of non-refoulement where an asylum-seeker is returned, on account of the ‘First State of Arrival’ rule, to a MS ‘trusted’ as safe.

The paucity of fairness, both rational and normative, that exemplifies the Dublin mechanism therefore risks manifesting as a contravention, by Southern MSs, of fidelity, as the sheer number of arrivals ipso facto results in overwhelmed, deficient asylum procedures and reception conditions,[96] to the ultimate detriment of a refugees’ fundamental rights.

  • An Incentive for Infidelity

Yet, in addition to rendering fidelity to the law impracticable, Dublin III’s inherent, structural fairness has also, following the crisis, incentivised MSs to premeditatively violate fundamental rights.

Indeed, the regulation’s ‘State of First Arrival’ rule, and the attendant responsibility it imposes on receiving MSs, has induced a number of ‘push back’ policies by MSs on Europe’s periphery, in apparent contravention of the principle of non-refoulement.

Italy’s adoption of such a practice, in which African asylum-seekers, bound from Libya, were returned en-route following a ‘Friendship and Cooperation’ agreement with the Libyan authorities,[97] is, perhaps, the best-known example; a policy that only ended following the ECtHR ruling in Hirsi that it constituted an exercise of jurisdiction within the meaning of Article 1 of the Refugee Convention, engaging MS responsibility under, inter alia, Article 3 ECHR.[98]  The Spanish government has also proposed amendments to its immigration law in order to legalise its ‘push back’ policy for those arriving from Ceuta and Melilla,[99] a move criticised by the Council of Europe as a “clear breach of human rights law”,[100] given its apparent irreconcilability with the Hirsi principle and is pending a ECtHR challenge in NT v Spain.[101]

Yet, the ‘First State of Arrival’ rule also goads MSs into inaction – manifesting as a negative form of legal infidelity. Indeed, despite the establishment of the European Asylum Support Office in 2010 (EASO),[102] formed in order to enhance the implementation of the CEAS, both Italy and Greece, in wake of the Arab Spring, have persistently disregarded their obligation under the EURODAC Regulation to fingerprint asylum-seekers.[103] In doing so, the identification of those who engage in secondary movement is problematised, diminishing the possibility of a return under Dublin III.[104] The “frustratingly slow” development of ‘hotspots’,[105] introduced by the EU in September of 2015 in order to register and fingerprint asylum-seekers in Italy and Greece,[106] suggests that change is, at least in the short-term, improbable. Although plausibly illustrative of – albeit unintentional – MS-refugee solidarity, such legal infidelity, if continually practiced, ultimately breeds deep, political mistrust between Northern and Southern MSs, impeding any serious prospect of successfully addressing the crisis.[107]

At its most extreme, this incentive for infidelity has contributed to ‘systemic deficiencies’[108] in Greece’s asylum system, prompting the ECtHR to institute a prohibition on Dublin returns to the country.[109] As Bastasserts, the crisis “is not…solely, the result of refugees that simply overwhelmed [MS asylum systems], but rather the consequence of a boycott of a system that the local actors did not perceive as taking their interests into account”.[110] In fact, Greece’s meager ‘reward’, upon improving its reception conditions, would be a lifting of the current deportation ban, thereby aggravating the situation.[111] This explains, to some degree, the unusually poor domestic transposition and implementation of the recast Directives,[112] rendering any new provision of rights functionally inefficacious. Whilst the Commission, in December of 2015, initiated eight infringement decisions against Greece, Croatia, Italy, Malta and Hungary for failing to transpose and implement the legislation,[113] the practical difference such measures can, or will, make is greatly uncertain.[114]

A failure to address the fairness-deficit at the crux of Dublin III’s ‘First State of Arrival’ rule has, therefore, incentivised MS infidelity to EU and International law, both in a positive and negative sense, thereby subverting trust between Northern and Southern MSs, inhibiting the formation of ‘dual’ solidarity, and by necessary extension, rendering deficient the EU’s response to the crisis.

The European Courts: Forcing ‘Dual’ Solidarity?

With the Dublin Regulation’s elemental unfairness the principal cause, the ‘cooperative virtues’ of ‘dual’ solidarity have evidently been, at best, disjointedly enunciated. Given this, the role of the European Courts has taken on especial significance, enforcing such solidarity where MSs have been otherwise reluctant to in light of the crisis. Indeed, whilst the ECtHR[115] has performed its important ‘monitoring’ function,[116] the CJEU has synchronously asserted itself as a “fundamental rights court”,[117] and in doing so, as observed by former Attorney-General Jacobs, “has treated…the ECHR as if it were binding upon the Community, and has followed scrupulously the case-law of the ECtHR”.[118]

The Courts and the Dublin Regulation

Most conspicuously, the problematic anchorage of the Dublin Regulation to the principle of mutual trust has been extirpated where a lack of fidelity to fundamental human rights is evidenced, and by extension, a risk of refoulement exists.

In KRS,[119] a pre-crisis case, despite upholding the “independence, reliability and objectivity” of UNHCR evidence that indicated unacceptable conditions for asylum-seekers in Greece,[120] the ECtHR held that such concerns could not preclude a Dublin transfer from the UK, given the presumption of Greece’s fidelity to the law.[121] The Court appeared, therefore, to be sanctioning the “willful ignorance”[122] of MSs in the illusory name of mutual trust, to the considerable detriment of fairness and legal fidelity.

However, in wake of the Arab Spring, and the resultant, enormous rise in Europe-bound refugees, the Courts have departed from such reasoning, opting, instead, to address the matter by enforcing a brand of ‘dual’ solidarity. Indeed, in MSS,[123] the ECtHR unanimously found that detention conditions in Greece violated Article 3 ECHR. This had generated a specific, positive obligation on Belgium not to return the applicant, a ruling referred to by the CJEU in NS,[124] where the Court resolved to preclude Dublin transfers where reception conditions provided “substantial grounds”[125] for believing that an asylum-seeker would face inhuman or degrading treatment.[126]

The decisions, therefore, amounted to a “resounding reassertion of each State’s responsibility to ensure that ECHR [and EU Charter] guarantees were practical and effective”,[127] with MSs now, following MSS, obligated to apply the Article 17(1)[128] Dublin III ‘sovereignty’ clause’, an otherwise voluntary derogation from the ‘First State of Arrival’ rule, in order to prevent a Dublin transfer to Greece. An understanding of mutual trust as an absolute basis for intro-EU transfers is, therefore, no longer tenable. In effect, the courts have enforced the ‘cooperative virtues’ of fairness and fidelity.

It should be noted that the CJEU in NA had suggested, in order to prevent deportation, a requirement of “systemic deficiencies”[129] in a MSs’ asylum system, an alarmingly high threshold that the Court in Abdullahi[130] doubled-down on. Nonetheless, the expansion of procedural rights afforded to asylum-seekers in the Dublin recast,[131] in tandem with the ECtHR’s judgment in Tarakhel,[132] described by Costelloas a “game changer”,[133] militates against such demanding construction, the Court having explicitly rejected “systemic breaches” as an additional test or threshold.[134] Article 3 ECHR would, it was held, risk violation if the Italian authorities had failed to seek and obtain “sufficient assurances” that, upon return to Greece, the asylum-seeker would be appropriately received and that, in this case, the applicant’s family would remain unified.[135] Therefore, despite acknowledgement that Italian reception conditions could “in no way be compared”[136] to those in Greece, the Court established an intermediate category of cases in which MSs must advance with caution.[137]

Fairness and Fidelity vs. Mutual Trust

As it pertains to ‘dual’ solidarity and the crisis, these cases raise a number of important matters. The Court in MSS established that the returning MS was vicariously liable for the legal infidelity of other MSs. Therefore, as the Belgian authorities “knew or ought to have known” that the applicant “had no guarantee that his asylum application would be seriously examined by the Greek authorities”, they were found to have violated Article 3 ECHR,[138] with the return amounting to, both, a form of indirect refoulement via Greece,[139] and direct refoulement to rights-violative conditions in Greece itself.[140]

Therefore, MSs are faced with a catch-22, forced to choose between enquiring into each other’s legal fidelity, thereby jeopardising mutual trust, or sanctioning the transfer, exposing it to liability for human rights violations that, as Langford observes, “could create even deeper resentment”.[141] Indeed, in disavowing the inviolability of mutual trust, it might be argued that the Courts have destabilised the attempted establishment of a CEAS by undermining mutual trust and ‘rewarding’ incompliant MSs for their functional failures. However, whilst this abrogation of mutual trust is unfortunate – generating a loose, inchoate form ‘dual’ solidarity – so long as Dublin III’s ‘First State of Arrival’ rule continues to legally subsist, the enforcement of this limited, trust-subversive form of ‘dual’ solidarity ensures a modicum of protection for fundamental human rights, whilst enforcing upon Northern MSs a, albeit limited, degree ofmaterial responsibility, as required by Article 80 TFEU.

Moreover, in drawing critical attention to the flaws in Greece and Italy’s asylum systems, such decisions might, as the crisis further deteriorates, facilitate additional pressure on the EU and its MS to adopt a comprehensive understanding of ‘dual’ solidarity.

The Courts and Protecting the Vulnerable

Aside from dismantling the central principle of mutual trust, the European Courts have also been crucial in promoting ‘dual’ solidarity by way of obliging fairness towards refugees who are especially vulnerable.

In K,[142] for example, the CJEU held, espousing a teleological construction of the ‘humanitarian’ clause[143] – the second, ordinarily voluntary, exception to the ‘First State of Arrival’ rule – that the provision must be invoked in order to bring or keep together dependant members of an extended family, which, in this case, concerned the daughter-in-law of an asylum-seeker whose dependency derived from having to care for her new-born baby with a severe handicap. The Court in MA[144]extended this protectionist notion further. The case turned on the United Kingdom’s responsibility for the asylum applications of unaccompanied minors who, unlike the applicant in K, had no family members legally present in any other MS. The Court found, in light of their status as “particularly vulnerable persons”, that “as a rule, unaccompanied minors should not be transferred to another Member State”,[145] meaning that the responsible MS would be that in which the minor had last applied for asylum – in this case, the United Kingdom. Nonetheless, a subsequent Commission proposal to confirm and extend this rule within the Dublin Regulation was blocked by the European Council[146] – a stark reminder of the sheer MS aversion to a normative regard for fairness.

These exhibitions of judicial activism, both in relation to ‘mutual trust’ and vulnerable persons, have prompted assertions that the Courts are “filling the lacunae of EU asylum legislation, which in spite of the recast process remain”.[147] Indeed, the judicial approach in light of the crisis is welcome, but should not legitimate assertions that that the Courts, having purportedly annulled the worst features of the CEAS, have ensured confidence in the system, as contended by Kaunert and Léonard.[148] Rather, the Courts, in mandatinga minimal level of normative fairness, thereby occasioning a measure of MS-refugee, and incidentally, MS-MS fairness in solidarity, are restricted to making the mere best out of a bad, legal situation. An asylum system that is, both, premised upon, and conducive to, MS promulgation of unfairness, in conjunction with its attendant, subversive effect on legal infidelity and trust, can never breed the model of ‘dual’ solidarity proposed as necessary to successfully address the refugee crisis.

Germany: Leading the Way or Perpetuating the Crisis?

Thus far, Northern MSs not directly affected by the refugee crisis have been depicted, largely in national self-interest, as unwilling to assume responsibility, therefore inhibiting the generation of any discernable form of ‘dual’ solidarity.

However, it is worth, briefly, exploring the notable exception that is Germany. In August of 2015, having declared the Dublin mechanism “obsolete”,[149] German Chancellor Angela Merkel invoked ‘the sovereignty clause’[150] of Dublin III,[151] circumventing the ‘First State of Arrival’ rule and allowing all Syrian refugees, who represent the overwhelming majority of the incoming refugee flow,[152] to apply for asylum in Germany. Germany’s Interior Minister, Francois Heisbourg, had estimated that up to 800,00 Syrians would have been seeking refuge in Germany by the end of 2015.[153] By contrast, the United Kingdom has pledged to settle 20,000 by 2020.[154]

A thoroughly humane, and indeed necessary, policy,[155] it was also fundamentally grounded in a scarce appreciation of fairness for ‘third country nationals’, or refugees, as provided for in Article 62(2) TFEU.

Yet, although well intentioned, the policy is demonstrative of the inherent danger that attaches to unilateral acts of solidarity, and by logical extension, the importance of a ‘dual’ conception of solidarity. In what Pascouaulabels an “unprecedented domino effect”,[156] Central and Eastern European MSs utilised Germany’s unilateralism so as to wholly repudiate their obligations of responsibility, with Victor Orban, Hungary’s colourful, right-wing Prime Minister, asserting that “it is not a European, but a German problem”, as Merkel’s announcement had functioned as an unwelcome ‘pull factor’.[157] Austria responded to the ‘Merkel plan’ by facilitating the onward movement of thousands of refugees into Germany, before initiating the construction of a fence at their internal border with Slovenia in order to prevent entry via the Balkan route.[158] Sweden, Denmark, France, Belgium and Norway[159] have also, following Merkel’s bold declaration, reintroduced internal borders in the Schengen area,[160] a legally equivocal measure[161] that risks stranding refugees, forcing them, as ECRE describes, to “sleep outside for days, in the cold and without food”.[162]

Hence, Germany’s promulgation of unilateral solidarity, somewhat ironically, compromised the tenets fairness and fidelity, rather than advanced them. More significant, however, was its deleterious impression on the political relations between Germany and other MSs, which critically endangered trust – the “oxygen” that affords solidarity life[163] – as required between MSs in order to found a successful response.

Conclusion

The very nature of Dublin III’s securitised premise renders the Regulation constitutively unfair, shifting the refugee ‘burden’ from Northern MSs to those at Europe’s territorial borders. Yet, the EU’s failure to, following the 2013 recast process, forgo the ‘First State of Arrival’ rule, and its inexorable bearing on Article 80 fairness in solidarity, has triggered several, attendant responsive failings at the hands of Southern MSs unable or unwilling to offer adherence to the ‘cooperative virtues’ of Article 62(2) TFEU refugee fairness, or fidelity. MS trust is, accordingly, left devastated; refugees engage in secondary movement[164] that is illegally facilitated by overburdened MSs, accelerating a political tension that the North-South MS divide, in conjunction with Dublin’s pretence of ‘mutual trust’, continues to foster. Despite the Courts’ best endeavours, their ultimate bearing can only be peripheral in an asylum system that is fundamentally flawed, and so antagonistic to the realisation of ‘dual’ solidarity required in order to successfully address the crisis.

4. At the Border

Whilst a consideration of the CEAS and Dublin III is important to an evaluation of the EU and its address of the crisis, the relative, operational condition of an asylum system is immaterial if the refugee is incapable of accessing it. Of equal significance, therefore, is the consideration of whether the EU has,beyond its external border, addressed the crisis in a manner conducive to the generation of ‘dual’ solidarity.

4.1 Visa Restrictions and Carrier Sanctions

That thousands of refugees have, and are, dying in their seaborne endeavour to reach Europe is now something of a distressing truism.[165] Yet, often lost in the mire of such discussion is why such journeys are undertaken at all. It is not prima facie apparent why an asylum-seeker would be inhibited from, for example, boarding a plane bound for Europe.[166]

The seldom-discussed answer, however, lays in the aggregate effect of EU visa restrictions and carrier sanctions. Although an established component of the EU’s legal infrastructure prior to the Arab Spring, the measures’ inadequacies, in necessitating a statistically unprecedented number of jeopardous voyages,[167] have been alarmingly exposed by the extant crisis.

The EU’s common visa policy derives from the Schengen acquis, founded on the Schengen Convention 1990,[168] which has since been developed by, inter alia, the establishment of the Schengen Borders Code (SBC)[169] and Visa Code (SVC).[170] In order to ensure the prohibitive efficacy of visa requirements, MSs, at the behest of Article 26(2) and 26(3) of the Schengen Convention, alongside a more recent EU Directive,[171] have instituted strict liability sanctions on transportation service providers[172] who transport, to MS borders, passengers who lack requisite travel documents, including a Schengen Visa.[173]

4.1.1 Visa Restrictions, Carrier Sanctions and Solidarity

The central concern, therefore, is whether the promulgation of these two measures, during a period of acute crisis, constitutes an appreciation of the ‘dual’ solidarity conceived as necessary in order to successfully address the crisis.

Narrowly considered, such dualism might plausibly be realised. The institution of a common visa policy follows from a MSs’ “right to control the entry of non-nationals into its territory”,[174] whilst carrier sanctions supplement this legitimate determination in a mutually cost-effective manner;[175] the procurement of fairness, in an Article 80 TFEU, interstate form being the ostensive, collective result. A normative, MS-refugee realisation of fairness has also been implicitly attributed to the legislative status quo, with assertions that it bolsters the legal position of those who have already arrived,[176] and that refugees, in fact, want to remain in their country of birth.[177] The generation of trust necessarily follows the “cooperative climate” that is fostered by the faithful implementation of these measures.[178]

Yet, this limited characterisation is conspicuously flawed. Whilst these procedures, in a similar manner to the CEAS, might procure solidarity between geographically protected MSs, it is their institution that subsequently engenders the initial overburdening of Southern MSs, which then actuates the suo jure unfairness of Dublin III. Further, in exporting border control beyond the EU’s geographical territory, the measures advance a securitisation agenda driven by “an insatiable appetite for control”[179] that, as illustrated by the vast, watery grave of the Mediterranean sea, appears contemptuous of fairness in a normative, Article 62(2) TFEU regard.

Most contentious, however, is the ‘dual’ solidarity tenet of fidelity. Carrier sanctions operate so as to “change the territorial gatekeepers to include private agents”,[180] shifting the burden of asylum determination from the MS to a profit-driven, corporate entity. The prospect of economic penalisation[181] invariably realises a preventative logic of “if in doubt, leave them out”,[182] meaning that asylum-seekers, having failed to procure a visa,[183] face rejection irrespective of protectionist concern. Yet, as refugee status is dependant upon the individual being “outside the country of his nationality”,[184] the Article 33(1) principle of non-refoulement is reputedly unengaged.[185] Indeed, this limitation ratione peronsae was successfully argued before the House of Lords in R v Immigration Officer at Prague Airport, where the stationing of immigration officers at Prague Airport in order to ‘pre-clear’ passengers was held not to infringe Article 33(1) “for [the applicants] had at no stage been outside the country of their nationality”.[186]  

However, the operation of territoriality as a hook upon which international protection hangs is unconvincing. Certainly, the House of Lords’ restrictive construal of Article 33(1) is not, necessarily, indicative of universal, legal consensus. Lord Bingham, in reaching his judgment, definitionally correlated ‘refouler’, as employed in Article 33(1), and ‘return’, thereby restricting the scope of Article 33(1) to “refugees who had already entered a country”.[187] Yet, the basis for his Lordship’s terminological synonymy is unclear. Indeed, it has been suggested that ‘return’ and ‘refouler’ are substantively divergent terms; the latter encompassing meanings such as “repel”, “repulse” and “drive back”.[188] The UNHCR has, in light of this comparatively broad comprehension of ‘refouler’, therefore warned against impressing Article 33(1) with a territorial restriction,[189] a determination that accords with the European Courts’ recent, teleological approach to the law.[190] Hence, it can plausibly be concluded that, in the words of Lauterpacht and Bethlehem, “rejection at the frontier [on account of visa restrictions and/or carrier sanctions]…would be incompatible with the terms of Article 33(1)”,[191] rendering their continued imposition, in light of the crisis, inviolate of the ‘virtue’ of fidelity, and therefore ‘dual’ solidarity.

4.1.3 Koushkaki: A Right to a Visa?

Despite the obstruction posed by visa requirements and carrier sanctions to ‘dual’ solidarity, the recent CJEU decision of Koushkaki[192] might be understood as mandating, to asylum-seekers,the provision of a Schengen visa, an understanding that renders extraneous the actuality of carrier sanctions[193] and results, somewhat inadvertently, in an imposition of something akin to ‘dual’ solidarity.

The case concerned a request for a preliminary ruling from the Berlin Administrative Courtasking, inter alia, whether the competent authorities of a MS[194] can refuse the provision of a ‘uniform’ visa[195] to an applicant who nonetheless fulfils the entry conditions stipulated in Article 5(1) of the SBC,[196] where none of the grounds for refusal listed in Articles 32(1)[197] or 35(6) of the SVC are applicable. Whilst the Advocate-General had refused such a right,[198] the CJEU adopted a different approach, affirming the legislative grounds for refusal to be exhaustive in order to aid the harmonisation of visa policy.[199] Hence, where an applicant fulfils the stipulated criteria, and the grounds for refusal are inapplicable, Koushkaki entails that a competent MS authority cannot refuse the provision of a ‘uniform’ Schengen visa.

However, the judgement’s relevancelies in its analogical application to the allocation of visas with limited territorial validity (LTV).[200]

Article 25(1) of the SVC provides that an LTV “shall” be issued if a MS considers it “necessary on humanitarian grounds, for reasons of national interest orbecause of international obligations”.[201] Whilst appearing to grant discretion, in that a MS must “consider it necessary” to provide the visa, the international obligation on MSs to admit those seeking protection manifests,[202] Peers observes, as an obligation to issue the LTV visa.[203] In other words, “shall” overrides the discretionary nature of the words “considers it necessary”. In addition, Article 31(1) of the Refugee Convention permits a breach of national immigration law where a need exists to flee persecution[204], an understanding that renders the asylum-seeker’s requisite dishonesty – in that he or she would not realistically consider return following the visa’s expiry[205] – legally non-actionable.

Therefore, as the European Parliament has now acknowledged, the judgement appears to require MSs to issue a LTV visa where this follows from their commitment of fidelity to international human rights obligations[206], an outcome that could, in its capacity to effectuate legal migration routes, energise Article 80 and 62(2) TFEU understandings of fairness in solidarity, with the ‘virtue’ of trust afforded an opportunity to prosper in an EU where the dividing line between North and South loses its refulgence.

Unfortunately, however, the case has not been construed as conferring any legal obligation on MSs, authorising the dual-application of visa restrictions and carrier sanctions to continue dismantling the substratum of ‘dual’ solidarity. Whilst unsurprising, in that it operates contra the immediate interests of most MSs, it is once more illustrative of the EU’s failure to adequately address the refugee crisis.

4.2. Frontex

Having delineated the EU’s role in obviating safe, legal avenues into Europe, a consideration of how the EU has managed its external border, in view of the crisis, logically follows.

Established pursuant to Articles 62(2)(a) and 66 of the Nice Treaty,[207] in pursuit of a “more effective…application of existing and future Community measures relating to the management of external borders”,[208] Frontex is charged with coordinating the operational activities of MSs at the EU’s external frontiers.[209] Although an intergovernmental agency[210] lacking independent executive power[211], its basic raison d’être, the facilitation of MS cooperation,[212] suggests that Frontex is uniquely placed to, as Jorry observes, “foster the principle of solidarity among MSs”[213] through a facilitation of interstate trust that has been, in the wake of crisis, so acutely undermined by the Dublin Regulation. In fact, “promoting solidarity” was explicitly articulated as an objective of the body in its foundational legal instrument.[214]

Despite its basic promise, however, Frontex’s securitised mandate of deterrence, compounded by a lack of political autonomy has stymied any serious prospect of inducing ‘dual’ solidarity in response to the crisis.

4.2.1 Securitisation and Fairness at the Border

Analogously to Dublin III and its securitised, ‘First State of Arrival’ rule, a dialectic, in a post-9/11 world of steadily escalating xenophobia,[215] is regularly presented between border security and refugee welfare;[216] or interstatesolidarity[217] and MS-refugeesolidarity. Hence, the procurement of a balance between the two is often stifled: fairness, in light of the afore-described threat-conferring asylum-seeker,[218] together with the attendant imperative of security, is rendered a secondary consideration.[219]

The EU’s adoption, in November 2014, of Frontex-coordinated Joint Operation Triton, is instructive in this regard.[220] The Operation was undertaken following the EU’s refusal to fund Mare Nostrum, an Italian Search and Rescue (SAR) Operation which had rescued 150,810 persons during its 364-day operation on the Mediterranean,[221] drawing praise from a number of NGO’s for its humanitarian success.[222] Yet, the EU’s implementation of JO Triton was, prima facie, a prudent initiative; a European crisis ultimately demands a European, collective response.[223] The MS coordination required necessarily breed’s mutual trust in a manner that Italy’s unilateralism could not have.

However, as identified by Frontex’s interim director, a “fundamental difference” exists between the two operations: Mare Nostrum was a “seek and rescue operation”, whereas Triton is premised on “border control”.[224] Given its narrower, security emphasis, it was allocated just €3 million a month – a third of what Italy had committed on its own – whilst its operational radius was reduced from 100 nautical miles to 30.[225] Unsurprisingly this “contributed to a dramatic increase in migrant and refugee deaths” – a consequence, primarily, of boats capsizing in areas not covered by Triton’s comparatively small mandate area.[226]

Driven by an atypical, normative regard for Article 62(2) TFEU fairness, Mare Nostrum constituted a promising manifestation of MS-refugee solidarity. However, as illustrated in relation to Germany,[227] such unilateralism is of limited, long-term worth unless synthesised with an interstate, Article 80 TFEU appreciation of fair sharing. In discarding Mare Nostrum’s SAR mandate, the EU quashed the tenet of fairness upon which Italy’s unilateral expression of refugee solidarity had stood, replacing it with a securitised framework that jeopardised the lives of thousands following the Spring.

Yet, restrictive measures, such as JO Triton, are not only the product of a threat-based politico-legal narrative, but serve to positively reinforce it. In this regard, border securitisation is self-perpetuating – it is its own, primary source of legitimation, with one security measure likely to expedite the implementation of another. [228] For example, the EU’s adoption of Triton was preceded by the EUROSUR regulation[229], implemented in late 2013 for the purpose of detecting, preventing and combating illegal immigration and cross-border crime[230]under the operational supervision of Frontex,[231] whilst the Commission’s proposals to reform Frontex in 2016[232] have already been criticised for seeking to do “too much in the area of border controls…and too little in the area of asylum”, with no significant attempt made to address the humanitarian or protection needs of refugees.[233]

Hence, the EU’s securitisation of Frontex’s mandate, both for its immediate and incidental effects, is fundamentally antagonistic to an appreciation of fairness grounded in distributive justice, which, ergo, thwarts the generation of ‘dual’ solidarity.

4.2.2 Securitisation and Fidelity at the Border

Yet, the EU’s failure to exhibit fairness at the border has, somewhat predictably, obstructed adherence to the tenet of fidelity, with Frontex long-denounced for its alleged human rights violations.[234] In particular, following the onset of crisis, it has been suspected of knowingly exposing refugees to inhuman or degrading treatment, contrary to Article 3 ECHR, by transferring them to deficient, Greek detention facilities.[235] Problematically however, whilst successive amendments to the Frontex regulation, most recently in 2014,[236] together with initiatives such as EUROSUR, have significantly strengthened its operational, deterrence capabilities,[237] Frontex lacks an accountability mechanism.[238] Ultimate, legal responsibility for rights violations committed during its JOs is therefore left with the national competent authority of the MS.[239] In lacking bona fide independence from national politics,[240] Frontex, acts in a “blind spot”[241] of international responsibility.

In circumstances where Frontex does, in fact, operate in breach of international human rights obligations, the refugees’ right to redress is glaringly inhibited. However, a less apparent danger lies within this lack of accountability. As Langford has observed, rather than perpetrate rights violations, Frontex’s role is often that of a scapegoat.[242] For example, having been implicated in the Italian push-back operation bilaterally agreed with Libya,[243] Frontex responded with “categorical” denial of involvement,[244] an assertion corroborated by Brady, of the Centre for European Reform, who posits that Frontex merely exposed the operation, rather than having actively participated.[245] Hence, the agency’s lack of autonomy “leaves the door wide open to a ‘blame game’ between the European Union (its Agency) and its Member States”; [246] its unaccountability, otherwise put, makes it both an easy, and disconcerting, scapegoat for MSs, leaving the asylum-seeker with no legal redress, even where the MS is the principal rights violator.

The 2014 Frontex regulation, in conjunction with the agency’s adoption of a 2011 Fundamental Rights Strategy,[247] has nonetheless been praised as evidencing a regard for its obligation of legal fidelity to international human rights,[248] thereby mitigating the difficulties pertaining to Frontex’s legal accountability.[249] Yet, Campesi has noted a troublesome paradox; the increased assumption of a ‘rights’ discourse, rather than improve legal fidelity, assists in cloaking violations that are, in fact, committed by Frontex, whilst simultaneously delegitimising criticism of the agency,[250] a notion that is of particular concernment in light of an intensive, institutional focus on securitisation.The dual-promulgation of a securitised mandate, alongside a newfound ‘appreciation’ for legal fidelity, might, therefore, serve to subvert, rather than empower this ‘virtue’ of ‘dual’ solidarity.

Thus, in pursuing an exclusionary agenda of securitisation through the expansion of Frontex, the EU is liable to increase rights violations, whilst generating and aggravating gaps in legal responsibility and accountability.[251] Further, the ‘blame game’ that then ensues hampers the generation of trust, for which Frontex could have been a rare, post-crisis source.

4.2.3 Dublin Compounded?

Yet, nowhere is Frontex’s squandered potential as a trust-fostering mechanism better illustrated than in the EU’s failure to address, in its 2014 mandate, a major, political bone of contention: namely that of disembarkation, undermining its own, maiden call for an approbation of Article 80 TFEU solidarity.[252]

Indeed, Article 10 of the Regulation provides that disembarkation is to be executed effectively and rapidly in “a place of safety”[253]which ordinarily denotes the closest port of the MS responsible for the SAR area.[254] However, the Article expressly stipulates that disembarkation imposes no obligations on non-participatory MSs.[255] Accordingly, rather than adjudge rescued individuals an EU responsibility,[256] as championed by the UNHCR following the crisis,[257] the Regulation de facto imposes,on coastal MSs, almost total responsibility for those rescued at sea. Not only, therefore, does the Regulation “risk echoing” the Dublin system,[258] but it compounds Dublin’s inherent deficiencies,[259] which logically begets the possibility of refoulement, or, as is more likely, indirect refoulement, irrespective of the regulation’s explicit interdiction of the act.[260]

The Regulation does, however, explicitly incorporate a “solidarity mechanism” in Article 12(1). It provides that a MS “faced with a situation of urgent and exceptional pressure at its external border shall be able to request” assistance from Frontex and/or Rapid Border Intervention Teams (RABITs).[261] RABITS, in particular, are unusual in their predication upon a principle of “compulsory solidarity”[262]: MSs are compelled to contribute border guards into a “Rapid Pool”[263] and deploy them upon request.[264] Although a welcome inclusion,[265] in that compulsory, emergency assistance provides an encouraging manifestation of interstate solidarity, it does nothing to mitigate the ultimate problem of disembarkation. Indeed, given the absence of a burden-sharing mechanism, or the imposition, on Northern MSs, of any meaningful assumption of responsibility, the Regulation appears to merely “masquerade unresolved tensions” between MSs.[266] Frontex, as a trust-arousing instrument, therefore fails.

4.3 Conclusion

Fischer-Lescano et al have persuasively contended that the Article 18 EUCFR right to asylum, in conjunction with the principle of non-refoulement, “creates an obligation for European border authorities to provide active protection” for asylum-seekers.[267] Yet, in precluding safe, legal passage into Europe, whilst pursuing a self-legitimating agenda of securitisation at the border, the EU has renounced any genuine, protectionist notion, facilitating the death of thousands in the Mediterranean and perpetuating the critical unfairness, attendant infidelity and MS distrust that stems from the Dublin Regulation, despite the CJEU’s sustained attempts to procure a semblance of ‘dual’ solidarity where such commitment from MSs is lacking.

Having contended that the EU has failed, in its address of the crisis, to exhibit the necessary ‘virtues’ of fairness, fidelity and trust, it is instructive, now, to consider how a successful EU response, informed by the tenets of ‘dual’ solidarity, might practically manifest.

5. Moving Forward

The pursuit of an effective, efficient solution to the problem of refugee management is a perennial,[268] but increasingly desperate pursuit. The CEAS, alongside a system of coordinated border procedures, afforded an opportunity to improve and harmonise procedures and standards of protection, whilst minimising casualties at sea; ‘dual’ solidarity as the binding thread. However, the three ‘virtues of cooperative justice’ that underlie this solidarity, in the wake of crisis, have been neglected: rather than a principle with legal implications, ‘dual’ solidarity has been construed as a mere cursory, moral commitment to be sacrificed at the exclusory alter of security and national self-interest.

Accordingly, as Türk proposes, “serious thought should be given to the development of a supranational arrangement exercised by the EU rather than individual state institutions”.[269] This would leapfrog the process of harmonisation apropos the administration of asylum claims,[270] ensure an equitable mechanism of burden-sharing, whilst safeguarding proper adherence to international obligations.[271]

5.1 A Policy Founded on Dual Solidarity

The key to a system of effective migration management, as Castles observes, lies in reducing North-South MS inequality.[272] In this vein, the CEPS has lucidly espoused what has progressively become the favoured, supranational ideal amongst legal commentators:[273] a Central European Asylum Agency would be entrusted with processing asylum applications and allocating responsibility for refugees between MSs,[274] assessed by reference to MS population, size of territory and GDP.[275] Uninhibited by the fetter of domestic self-interest, and uniquely positioned to confer legal implication to the ‘fair sharing’ of responsibility promulgated by Article 80 TFEU’s espousal of solidarity, the proposal advances significantly on the connatural injustice that pervades the Dublin Regulation.

Whilst conducive to rational, MS-MS fairness, the model’s coercive nature nonetheless obstructs its full capacity to realise MS-refugee solidarity.[276] Therefore, as the UNHCR has observed, in order to attain an efficient, human-rights compliant system of asylum and relocation, considerations pertaining to family, education, religion and language must assume commensurate significance,[277] an observation that is firmly in-keeping with the protectionist, teleological approach adopted recently by the European Courts.[278]

A supranational, refugee-orientated model of asylum-processing and ‘burden’-sharing, therefore, whilst ameliorating a North-South disparity that presently inhibits interstate solidarity, also breathes life into the Article 62(2) TFEU normative obligation of fairness towards third country nationals. In addition, this demonstration of MS-refugee fairness ensures the trust that is necessarily fostered by supranational coordination[279] is not subverted by the actuality of MS-facilitated secondary movement,[280] providing the system with a political and practical durability that the CEAS, underpinned by the Dublin Regulation, patently lacks.[281]

In fact, a sincere commitment to the ‘cooperative virtue’ of fidelity could even mandate the development of such an agency. All EU MSs are all bound by the same European and international legal obligations, ranging from the 1951 Refugee Convention to, most recently, the EUFCR. Hence, MSs have agreed to treat refugees in an equivalent manner, and to accord them the same rights and benefits. Hence, it might be concluded, in a similar vein to Goodwin-Gill, that “national refugee status determination systems are redundant”.[282] If the current, intergovernmental institutional arrangement inexorably results in legal infidelity, then supranationalism, in the manner advocated, is merely a manifestation of MSs’ existing, international commitments.

By virtue of geographical location, Southern MS’s will, nonetheless, continue to shoulder a disproportionate burden, even if only temporarily. The provision of EU funds, an economic manifestation of Article 80 TFEU interstate solidarity,[283] should be, and has been, provided in mitigation. Indeed, the EU’s Asylum, Migration and Integration Fund has allocated over €7 billion towards the integration and protection of refugees for the seven years between 2014 and 2020.[284] By contrast, just €628 million had been allocated for the 2008-2013 period.[285] Yet, the provision of finance should not, as certain MSs have tacitly suggested,[286] obviate the demand for active participation in a system refugee distribution. A displacement of MS responsibility at the alter of financial provision appears incongruous with a sincere commitment to the “fair sharing of responsibility”, as required by Article 80 TFEU, particularly given the objective limits to the logistical capacity of Southern MSs,[287] which could be understood as rendering the simple provision of funds “symbolic rather than de facto compensatory”[288] in a period of acute crisis. Financial relief should, therefore, be understood as a beneficial, but logically insufficient measure in the pursuit of a centralised response conducive to the stimulation of ‘dual’ solidarity.

Of course, the centralisation of asylum policy is not, alone, sufficient in order to comprehensively address the crisis. The repeal of carrier sanctions, alongside a mandatory grant of humanitarian visa’s, as promulgated in Koushkaki, is a vital prerequisite. In so doing, safe, legal migration routes become viable,[289] whilstMSs are placed behind the Rawlsian “veil of ignorance”[290], thwarting morally arbitrary considerations, such as nationality,[291] in their grant of asylum, ensuring a procedure in which “the principles of justice will prevail”.[292] Further, this de-securitisation of the border should be correspondingly observed in Frontex’s mandate, ensuring that its operational emphasis is placed on the saving of lives,[293] whilst ending its dependency on a rhetoric of deterrence to legitimate defiance of ‘dual’ solidarity. Political independence would also afford Frontex with an ability to determine objective standards for its border control operations,[294] whilst ending the accountability ‘blame game’ between the agency and MS’s,[295] unleashing its cooperative potential to consolidate trust within the Union.

5.1.1 A Political Reality

Whilst also seeking to strengthen its operational border capabilities,[296] it has been reported that the Commission plans to fundamentally alter the CEAS, replacing the Dublin III ‘First State of Arrival’ rule with system of ‘fair sharing’, in which responsibility is allocated between MSs according to a set criteria.[297] Whilst no reference is made to a central, processing agency, nor that the refugees’ preferences are to be afforded due relevance, it nonetheless begins to arouse an understanding of Article 80 TFEU solidarity as requiring more than cursory, moral commitment, but one with actual, concomitant legal implications.

Yet, a distinction ought to be drawn between what should be legally effected by the EU in order to successfully address the crisis, and what can realistically be achieved.

Indeed, as with the ‘dual’ solidaristic, supranational ideals delineated above, the proposal, when analysed through the politically-fractured lens of recent legal history, will be likely frustrated. Indeed, a similar relocation measure was adopted in mid-September 2015, with the aim of redistributing 160,000 refugees, stranded in Greece and Italy, across different MSs.[298] Yet, as the European Council on Foreign Relations notes, the discrepancy between MS commitment to principle and their attendant commitment to practice has been striking.[299] As of 18 January 2016, 17 MSs have officially made 4,200 places available for relocation,[300] with just 322 refugees having been transferred.[301] Meanwhile, Slovakia[302] and Hungary[303] have each filed an action for annulment to the CJEU, challenging the Relocation Decision’s legality, whilst Sweden have not only suspended their participation,[304] but have requested to now send, rather than receive, refugees.[305] The United Kingdom has declined to even partake, refusing to exercise its right to ‘opt-in’.[306] Given the dearth of practical, political commitment to a relocation system, it is hard, as Peers lucidly observes, to envision that it could successfully manifest as the rule, as suggested, rather than the exception, despite its centrality to a successful response grounded in the tenets of ‘dual’ solidarity.[307] The drain on national sovereignty that entails such a relocation scheme, whether on an intergovernmental or supranational basis, appears politically insurmountable against a backdrop of persistent, low economic growth, the rise of right-wing nationalism, and the pervasive threat of ISIS infiltration, especially in light of the November 2015 attacks in Paris.[308]

Hence, whilst an appreciation of what a successful response, informed by the ‘cooperative virtues’ of solidarity, might resemble has, very recently, begun to materialise, whether its implementation is practically feasible appears somewhat less clear.

6.  Conclusion 

The ultimate, fons et origio of the extant crisiscannot, of course, be attributed to a failure of EU policy. In Syria alone, reports suggest that up to 470,000[309] have been killed in the brutal, on-going civil war that has displaced 45% of the population.[310] The unprecedented number seeking asylum in the EU is, therefore, both unsurprising and unavoidable.[311] However, whilst lacking control over its source, the EU can determine how the crisis manifests.

It is in this, important regard that the EU has failed; rather than respond with the ‘dual’ solidarism that EU MSs should be regarded as legally impelled to espouse, an agenda motivated by national self-interest, security and deterrence has been, for the most part, pursued in its place.

This has beset ‘dual’ solidarity, and its core tenets of fairness, fidelity and trust – appropriated from Rawls’s ‘cooperative virtues’- with irreconcilable tensions, precipitating an address that is slow, inefficient, and contemptuous of the desperate humanitarian dimension. Fidelity to the punitive imposition of carrier sanctions and visa restrictions is, for example, subversive of MS-refugee fairness, and, plausibly, of MS fidelity to international obligations. Meanwhile, loyalty to the ‘virtue’ of trust, as it pertains to the Dublin regulation, which presupposes the adequacy of MS receptions conditions, risks jeopardising the principle of non-refoulement, and therefore, legal fidelity, whilst underscoring a North-South MS divide that perpetuates political distrust. Even the expression of MS-refugee fairness, when performed unilaterally, is inexorably at the expense of the trust required for an efficient, coordinated solidaristic response.

These fundamental tensions illuminate why, to a large extent, the European Courts – although a rare, intra-EU adherent of ‘dual’ solidarity – have struggled, in the absence of an axiological shift in the legislative agenda, to impose a meaningful conception of ‘dual’ solidarity in light of the crisis.

Hence an asylum and border policy founded on the precepts of ‘dual’ solidarity, with Article 62(2) and 80 TFEU as the legal touchstones, is urgently required. This would, ideally, realise a centralised asylum system, complete with a supranational relocation mechanism, in conjunction with a de-securitised mandate for the border.

Yet, an unfortunate, inhibitive paradox exists: the graver the crisis becomes, and the more an efficient, centrally-coordinated response is necessitated, the more that certain, particularly Northern, MSs demand a restitution of national asylum control and border sovereignty. Politically, therefore, a ‘dual’ solidaristic response appears difficult.

Yet, as Martin Schulz, President of the European Parliament has observed, failing to successfully address the crisis “would endanger more than just the rules of Dublin and Schengen”.[312] Indeed, if Article 80 TFEU’s recent, explicit legal enshrinement of solidarity in the field of asylum and border policy is insufficient to energise the EU’s foundational notion – that of common problems solved on the basis of a fair coexistence[313] – then the future of the EU as a cooperative, political union is inexorably mired with uncertainty.

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Table of Cases

UK Cases

  • Immigration Officer at Prague Airport [2004] UKHL 55.

European Cases

ECtHR Cases

  • AS v Switzerland, Application No. 39350/13, judgment of 30 June 2015 (Second Section)
  • Bosphorus v Ireland App no 45036/98, judgment of 30 June 2005 (Grand Chamber)
  • Hirsi Jamaa and Others v Italy, Application No. 27765/09, judgment of 23 February 2012 (Grand Chamber)
  • KRS v the United Kingdom, Application No. 32733/08 (decision on admissibility), judgment of 2 December 2008 (Fourth Section)
  • N.D. and N.T. v. Spain (no. 8675/15 and no. 8697/15)
  • Tarakhel v Switzerland, Application no. 29217/12, judgment of 04 November 2014 (Grand Chamber)

CJEU Cases

  • Commission v. Great Britain C-419/1978
  • Commission v. Italy C-102/1973
  • Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet, C-528/11, judgment of 30 May 2013 (Fourth Chamber of the CJEU)
  • Hungary v Council pending case C-647/15
  • Joined Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand Chamber of the CJEU)
  • Joined Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand Chamber of the CJEU)
  • K v Bundesasylamt (Austria), C-245/11, judgment of 06 November 2012 (Grand Chamber of the CJEU)
  • MA, BT, DA v Secretary of State for the Home Department, C-648/11, judgment of 06 June 2013 (Fourth Chamber of the CJEU)
  • MSS v Belgium and Greece App no 30696/09 (ECHR, 21 January 2011) [251]
  • Opinion C-2/13, judgment of 18 December 2014 (Full Court)
  • Rahmanian Koushkaki v Germany, C-84/12, judgement of 19 December 2013 (Grand Chamber)
  • Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) Case 120/78, [1979] ECR 649
  • Shamso Abdullahi v Bundesasylamt, Case C-394/12, judgment of 10 December 2013 (Grand Chamber of the CJEU)
  • Slovakia v Council, pending case C-643/15.

Other Jurisdictions

  • Sale, Acting Commissioner, Immigration and Naturalization Service et al v Haitian Centers Council Inc et al 509 US 155 (US SC, Jun. 21, 1993).

Table of Legislation

Treaties

EU Treaties

  • Consolidated Version of the Treaty on the Functioning of the European Union, 26 December October 2012 2010 OJ C83/47
  • Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed Lisbon, 13 December 2007, OJ C 306

Charter of Fundamental Rights of the European Union 18 December 2000 C 364/01

  • Treaty of Nice, Amending the Treaty on European Union, 26 February 2001, OJ C 80/10
  • Treaty of Rome, Treaty Establishing the European Community, 25 March 1957
  • Treaty on European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992, OJ C 325/5.

International Treaties

  • Convention Applying the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders of 19 June 1990.
  • Convention for the Protection of Human Rights and Fundamental Freedoms, adopted Rome 4 November 1950, entered into force 3 September 1953, 213 UNTS 221 ff.
  • Convention Relating to the Status of Refugees, adopted Geneva 28 July 1951, entered into force 22 April 1954, 189 UNTS 137 ff.

EU Regulations

  • Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union
  • Council Regulation (EU) 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ L189/93).
  • Proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders COM/2003/0687 final – CNS 2003/0273, 11 November 2003
  • Reg 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by Third-Country Nationals OJ 50 25 February 2003 1-10
  • Reg No 603/2013 of The European Parliament and of the Council of 26 June 2013 on the Establishment of ‘EURODAC’ for the Comparison of Fingerprints for the Effective Application of Regulation (EU) No 604/2013 L180/1 28 June 2013
  • Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).
  • Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism and  regulating the tasks and powers of guest officers.
  • Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
  • Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
  • Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 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, OJ L 180, 29 June 2013
  • Regulation (EU) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office.
  • The Eurosur Regulation: European Council, 2013b. Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur). European Council, 2013c. 24/25 October 2013 conclusions.

EU Directives

  • Council Directive 2001/51/EC of 28 June 2001 Supplementing the Provisions of Article 26 of the Convention Implementing the Schengen Agreement of 14 June 1985′, 2001.
  • Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180, 29 June 2013
  • Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ L 180, 29 June 2013

EU Decisions

  • Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece.

International Principles

  • International Maritime Organisation, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, 22 January 2009, FAL 3/Circ194.

Legislation From Other Jurisdictions

  • The Organic Law 4/2000 of 11 January, on the rights and liberties of foreign persons in Spain and their social integration, as amended by Organic Law 2/2009, of 11 December 2009 (‘Aliens Act’).

Bibliography

Books

  • Besharov DJ, Lopez MH, ‘Adjusting to a World in Motion: Trends in Global Migration and Migration Policy’ (OUP, 2016)
  • Bierdel E, Lakitsch M, “Flight and Migration: From Limits, Fears and Future Prospects” (Lit Verlag, 2014)
  • Boccardi I, Europe & Refugees Towards An EU Asylum Policy (Kluwer 2002)
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  • Chetail V, Bruckyer P. de, Maiani F, ‘Reforming the Common European Asylum System: The New European Refugee Law’ (Brill – Nijhoff, 2016)
  • Costello C, The Human Rights Of Migrants And Refugees In European Law (OUP 2015)
  • Gammeltoft-Hansen T, “Access to Asylum: International Refugee Law and the Globalisation of Migration Control” (CUP 2011)
  • Goodwin-Gill GS, McAdam J, “The Refugee in International Law” (Oxford: OUP, 2007)
  • Grewcock M, ‘Border Crimes: Australia’s War Against Illicit Migrants’ (Institute of Criminology Press, 2009)
  • Habermas J, “Between Facts and Norms” (Polity Press, 1997)
  • Hathaway JC, The Rights of Refugees under International Law (CUP 2005)
  • Heijer MD, Europe and Extraterritorial Asylum (Bloomsbury, 2012)
  • Hondrich KO, C. Koch-Arzberger, Solidarity in Modern Society (Fischer Paperback Publisher, 1992)
  • Hurwitz A, “The Collective Responsibility of States to Protect Refugees” (OUP, 2010)
  • Jacobs F, The Sovereignty of Law: the European Way—the Hamlyn Lectures 2006 (CUP, 2007)
  • Mitsilegas V, “The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law” (Springer, 2015)
  • Noll G, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff Publishers, 2000)
  • O’Nions H, “Asylum – A Right Denied” (Ashgate Publishing, 2014)
  • Peers S, Rogers N, EU Immigration and Asylum Law text and Commentary (Martinus Mijhoff 2006)
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  • Thackrah JR, “Dictionary of Terrorism” (Routledge, 2003)
  • Verkuil PR, “Outsourcing Sovereignty: Why Privatization of Government Functions Threatens and What We Can Do about It” (CUP: New York, 2007)
  • Walzer M, “Sphere of Justice: A Defence of Pluralism and Equality” (Basic Books 1983)
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Chapter in an Edited Books

  • Arneson R, ‘Rawls, Responsibility, and Distributive Justice’ in Justice, ‘Political Liberalism and Utilitarianism: Themes from Harsanyi’ eds. Salles M and Weymark JA (CUP, 2008)
  • Baldaccini A, ‘Extraterritorial border controls in the EU: The role of Frontex in operations at sea’ “In Extraterritorial immigration control: Legal challenges” eds. Ryan B,  Mitsilegas V’ (Martinus Nijhoff, 2010)
  • Battjes H, ‘Mutual Trust in Asylum Matters: The Dublin System’ in The Principle of Mutual Trust in European Asylum, Migration and Criminal Law (Institute for Multicultural Affairs, 2011)
  • Bell M, ‘Irregular Migrants : Beyond the Limits of Solidarity?’ in ‘Promoting solidarity in the European Union’ Ross M, Borgmann-Prebil Y (eds) (OUP, 2010)
  • Bigo D, Tsoukala A ‘Understanding (in)security’ in “Terror, insecurity and liberty: illiberal practices of liberal regimes after 9/11” (eds.) D. Bigo, A. Tsoukala (2008, Routledge).
  • den Heijer M ‘Frontex and the Shifting Approaches to Boat Migration in the European Union’ in ‘Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices’ ed. R. Zaiotti (Routledge, 2016)
  • Fink M, ‘A ‘Blind Spot’ in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ Forthcoming in ‘Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement’ Gammeltoft-Hansen T, Vedsted-Hansen J (eds) (2015)
  • G. S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, in “Jesuit Refugee Service, Safe and Secure: How do Refugees Experience Europe’s Borders?” Kessler S (ed) (JRS, 2011)
  • Kneebone S, ‘’Safe Third Country Concept’ in “Forced Migration, Human Rights and Security” ed. McAdam J (Hart, 2008)
  • Gottwald M, ‘Burden Sharing and Refugee Protection’ in ‘The Oxford Handbook of Refugee and Forced Migration Studies’ Fiddian-Qasmiyeh E and others (eds) (OUP, 2014)
  • Hestermeyer H, ‘Solidarity in International Environmental and Trade Law’ in ‘Coexistence, cooperation and solidarity’ Hestermeyer H and others (eds)  (Martinus Nijhoff Publishers 2011)
  • Lang IG, ‘The EU Financial and Migration Crises: Two Crises – Many Facets of EU Solidarity’ in Solidarity – A General Principle of EU law?  Biondi A, Dagilyte E and Kucuk E (eds) (Edward Elgar 2015 – forthcoming)
  • McDonnell A, ‘Solidarity, Flexibility and the Euro-Crisis: Where Do Principles Fit In? in “The EU After Lisbon: Amending or Coping with the Existing Treaties?” eds. Rossi LS, Casolari F, (Springer, 2014)
  • Rijpma JJ, ‘Hybrid agencification in the Area of Freedom, Security and Justice and its inherent tensions: the case of Frontex’ in The agency phenomenon in the European Union, Busuioc M, Groenleer M, Trondal J (eds) (Manchester University Press, 2012).
  • Trevisanut S, ‘Which Borders for the EU Immigration Policy? Yardsticks of International Protection for EU Joint Borders Management’ in ‘EU Migration Law: Legal Complexities and Political Rationales (Collected Courses of the Academy of European Law) eds. Azoulai L, de Vries K (OUP, 2014)

Journals

  • Buonfino A. ‘Between Unity and Plurality: The Politicization and Securitization of the Discourse of Immigration in Europe’ (2004) 26 New Political Science, 23.
  • Anker D, Fitzpatrick J, Shacknove A, “A Crisis and Cure: A Reply to Hathaway/Neve and Schuck” (1998) 11 Harvard Human Rights Journal 295.
  • Bast J, “Deepening Supranational Integration: Interstate Solidarity In EU Migration Law” (2015) 22 European Public Law, 1.
  • Battjes H, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4, European Journal of Migration and Law, 159.
  • Brekke JP, ‘Stuck in Transit: Secondary Migration of Asylum Seekers in Europe, National Differences, and the Dublin Regulation’ (2015) 28 Journal of Refugee Studies 145.
  • Brouwer E, ‘Eurodac: Its Temptations and Limitations’ (2002) 4 European Journal of Migration and Law, 231.

…Brouwer E, ‘Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof” (2013) 1 Utrecht Law Review, 135.

  • Campbell J, “Asylum vs Sovereignty In The 21st Century: How Nation-State’s Breach International Law To Block Access To Asylum” (2015) 1 International Journal of Migration and Border Studies, 1.
  • Campesi G, ‘Frontex, the Euro-Mediterranean Border and the Paradoxes of Humanitarian Rhetoric’ (2014) 3, South-East Journal of Political Science, 126.
  • Carrera S, den Hertog L, Parkin J, ‘The Peculiar of EU Home Affairs Agencies in Migration Control: Beyond Accountability Versus Autonomy’ (2013) 15 European Journal of Migration and Law, 337.
  • Cases-Cortes M, Cobarrubias S, Pickles J, ‘‘Good Neighbours Make Good Fences’: Seahorse Operations, Borders Externalisation and Extra-Territoriality’ (2014) 1 European and Regional Studies, 1.
  • Castles S, “Why Migration Policies Fail” (2004) 27 Ethic and Racial Studies 205.
  • Costello C, ‘Dublin-case NS/ME: Finally, an end to blind trust across the EU?’ (2012) 10 Asiel & Migrantenrecht, 404.
  • Costello C, Mouzourakis M, ‘Reflections on reading Tarakhel: Is ‘How Bad is Bad Enough’ Good Enough?’ (2014) 10 Asiel & Migrantenrecht, 83.
  • Derpmann S, ‘Solidarity and Cosmopolitanism’ (2008) 12 Ethical Theory and Moral Practice, 303.
  • Drezner DW, ‘The Realist Tradition in American Public Opinion’ (2008) 6 Perspectives of Politics, 51
  • Fischer-Lescano A, T, Löhr, T. Tohidipur ‘Border Controls at Sea: Requirements under International Rights and Refugee Law’ (2009)  21 International Journal of Refugee Law, 256.
  • Gabrielli L, ‘Securitisation of Migration and Human Rights: Frictions at the Southern EU Borders and Beyond’ (2014) 16 Urban People/Lidé Mesta 311.
  • Gibney MJ, ‘Beyond the Bounds of Responsibility: Western States and Measures to Prevent the Arrival of Refugees’ (2005) 22 Global Migration Perspectives, 1.
  • Goodwin-Gill GS, ‘Legal and Practical Issues Raised by the Movement of People Across the Mediterranean’ (2016) 51 Forced Migration Review, 82
  • Elspeth Guild, “Seeking Asylum: Storm Clouds Between International Commitments And EU Legislative Measures” (2004) 29 European Law Review 198.
  • Guiraudon V, ‘European Integration and Migration Policy: Vertical Policy-making as Venue Shopping’ (2000) 38 Journal of Common Market Studies, 251.
  • Hartwig I, Nicolaides P, ‘Elusive Solidarity in an Enlarged European Union’ (2003) 3 EIPAScope, 19.
  • Hathaway J, ‘Why Refugee Law Still Matters’ (2007) 8 Melb. J. Int’l L 89
  • Heisbourg F, ‘The Strategic Implications of the Syrian Refugee Crisis’ (2016) 57 Survival, 7
  • Hilpold P, ‘Understanding Solidarity within EU Law: An Analysis of the “Islands of Solidarity” with Particular Regard to Monetary Union’ (2015) 34 Yearbook of European Law, 257.
  • Huysmans J, ‘The European Union and the Securitization of Migration’ (2000) 38 The European Union and the Securitization of Migration, 751.
  • K-Amir, T. Spijkerboer, ‘On the Morality and Legality of Border: Border Policies and Asylum Seekers’ (2013) 26 Harvard Human Rights Journal, 1.
  • Karageorgiou E, ‘Solidarity and Sharing in the Common European Asylum System: the Case of Syrian Refugees’ (2016) 17 European Politics and Society, 1.
  • Kaunert C, Leonard S, ‘The Development of the EU Asylum Policy: Venue-Shopping in Perspective’ (2012) 19 Journal of European Public Policy 1396
  • Langford LM, “The Other Euro Crisis: Rights Violations Under The Common European Asylum System And The Unravelling Of EU Solidarity” (2013) 26 Harvard Human Rights Review, 217.
  • Lenart J, ‘Fortess Europe’: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012) 28 Utrecht Journal of International and European Law, 4.
  • Maiani F, Hruschka C, ‘The Sharing of Responsibilities in the Dublin Space, between Mutual Trust – and Security for asylum seekers’ (2011) 2 ASYL 12
  • Miltner B, ‘The Mediterranean Migration: A Clash of titans’ Obligations’ (2015) 12 The Brown Journal of World Affairs  213
  • Mitsilegas V, ‘Solidarity and Trust in the Common Asylum System’ (2014) 2 Comparative Migration Studies, 181.
  • Mitsilgas V, ‘Immigration Control in an Era of Globalisation: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 Indiana Journal of Global Legal Studies 3
  • Noll G, ‘Risky Games? A Theoretical Approach to Burden-Sharing in the Asylum Field’ (2003) 16 Journal of Refugee Studies, 236.
  • Parisciani E, ‘Search and Rescue Operations in the Mediterranean Sea and Access to Asylum: Another ‘Dublin’? (2015) 29 Immigration, Asylum and Nationality Law,  158
  • Peers S, The Dublin III Regulation: What Will Be Different? (2014) 28 J.I.A.N.L. 46
  • Rijpma J, Vermeulen M, ‘EUROSUR: Saving Lives or Building Borders?’ (2014) 24 European Security, 454.
  • Rodenhauser T, “Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control” (2014) 26 International Journal of Refugee Law 223
  • Sangiovanni A, ‘Solidarity in the European Union’ (2013) 1 Oxford Journal of Legal Studies, 1. 
  • Scholten S, Minderhound P, “Regulating Immigration Control: Carrier Sanctions in the Netherlands” (2008) 10 European Journal of Migration and Law, 123.
  • Tazzioli M, ‘Border Displacements: Challenging the Politics of Rescue Between Mare Nostrum and Triton’ (2016) 10 Migration Studies, 1.
  • Thielemann E, ‘Between Interests and Norms: Explaining Burden‐Sharing in the European Union’ (2003) 16 International Journal of Refugee Studies, 253.
  • Türk V, ‘Envisioning a Common Asylum System’ (2016) 51 Forced Migration Review, 57.
  • UNHCR, ‘Expert Meeting on Refugees and Asylum-Seekers in Distress at Sea – how best to respond?’ (2012) 24 International Journal of Refugee Law, 485.
  • Van Kessel G, ‘Global Migration and Asylum’ (2001) 10 Forced Migration Review 10
  • Velluti S, ‘Reforming The Common European Asylum System – Legislative Developments And Judicial Activism Of The European Courts’ (2015) 27 International Journal of Refugee Law, 519.
  • Ventrella M, ‘Recognising Effective Legal Protection to People Smuggled at Sea, by reviewing the EU Legal Framework on Human Trafficking and Solidarity between Member States’ (2015) 3 Social Inclusion, 76.
  • Zhelyazkova A, ‘Complying With EU Directives’ Requirements: The Link Between EU Decision-Making And The Correct Transposition Of EU Provisions’ (2013) 20 Journal of European Public Policy, 702.

Committee Reports

  • European Scrutiny Committee, Fifty-Seventh Report – Establishing a European Border Surveillance System (HC 2012-13, 342-xxi)
  • European Scrutiny Committee, Twenty-Second Report – Implementation of Migration Hotspots in Greece and Italy (HC 2015-16, 342-xxi)
  • House of Lords Select Committee on the European Union (2001-2002) Asylum Applications – Who Decides?, 19th Report, session 2001-02.

Green Papers

  • European Commission, ‘Green Paper on the future Common European Asylum System’ COM (2007) 301 final, Brussels, 6 June 2007.

Hansard

  • HC Deb 7 Sep 2015, vol 599, Col 24
  • HC Deb 7 September 2015, Vol 599, Col 30

Reports

  • Amnesty International, ‘The Global Refugee Crisis: A Conspiracy of Neglect’ (Amnesty International Publications 2015) <http://static.guim.co.uk/ni/1434356535972/The-Global-Refugee-Crisis-a.pdf>
  • Amnesty International, Europe’s Sinking Shame: The Failure To Save Refugees And Migrants At Sea. London: Amnesty International (2015) Amnesty International, – Europe’s Sinking Shame: The Failure To Save Refugees And Migrants At Sea. London: Amnesty International (2015) 15 <https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/EUR03143415-26032_Europe%20Sinking%20Shame_Full%20Version?CMD=VEROBJ&MLKOB=33237320303>
  • Human Rights Watch, ‘The EU’S Dirty Hands’ (2011) <https://www.hrw.org/report/2011/09/21/eus-dirty-hands/frontex-involvement-ill-treatment-migrant-detainees-greece>
  • Keller S et al., MIGREUROP, ‘Frontex Agency: Which Guarantees for Human Rights?’ (2011)<http://www.migreurop.org/IMG/pdf/Frontex-PE-Mig-ENG.pdf
  • Syrian Center for Policy Research, ‘Confronting Fragmentation: Impact Of Syrian Crisis Report’ (2016) 61 <http://SCPR-report-Confronting-fragmentation-2015-EN.pdf>
  • UNHCR, Syrians In Greece: Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf>

Policy Papers

  • Carrera S, De Somer M, Petkova B, The Court of Justice of the European Union as a Fundamental Rights Tribunal. In: Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice CEPS. Papers in Liberty and Security, No. 49, (2012)
  • Carrera S, Gros D, Guild E ‘What Priorities for the New European Agenda on Migration’ (April 2015), CEPS, available at: https://www.ceps.eu/system/files/MigrationPriorities.pdf>
  • European Commission, The Hotspot Approach To Managing Exceptional Migratory Flows (2015) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/2_hotspots_en.pdf>
  • European Policy Centre, “Heads Buried In The Sand: Member States Block Solutions To The Refugee Crisis” (2015) <http://www.epc.eu/documents/uploads/pub_5923_heads_buried_in_the_sand.pdf>
  • H. Jorry, ‘Construction of a European Institutional Model for Managing Operational Cooperation at the EU’s External Borders: Is the FRONTEX Agency a decisive step forward? CEPS Challenge Paper, No. 6 (2007) 2.
  • Raspotnik A, Jacob M and Ventura L, Tepsa Brief: The Issue Of Solidarity In The European Union (Tepsa 2012)  <http://www.tepsa.eu/download/TEPSA%20Policy%20Paper%20The%20issue%20of%20solidarity%20in%20the%20European%20Union.pdf>
  • Roos C, Orsini G ‘How to Reconcile the EU Border Paradox? The Concurrence of Refugee Reception and Deterrence’ (2015) Institute for European Studies Policy Brief<http://www.ies.be/files/4:2015%20Policy%20Brief.pdf>
  • U. Jensen, Humanitarian Visas: Option Or Obligation? Policy Department C: Citizens’ Rights and Constitutional Affairs (2014) <http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.pdf.>
  • Williams R, ‘Beyond Dublin – A Discussion Paper for the Greens/EFA in the European Parliament’ (2015) 13.

Other PDF’s

  • E. Lauterpacht, D. Bethlehem, ‘The Scope And Content Of The Principle Of Non-Refoulement’ (UNHCR, 2001) <http://www.unhcr.org/419c75ce4.pd>
  • European Commission “Asylum, Migration And Integration Fund (AMIF)” (2014) <http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/index_en.htm>
  • European Commission, ‘Communication From The Commission To The European Parliament And The Council: A European Border And Coast Guard And Effective Management Of Europe’s External Borders’ (ec.europa.eu, 2015) <https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-673-EN-F1-1.PDF>
  • European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Enhanced Intra-EU Solidarity in the Field of asylum: An EU Agenda for Better Responsibility-Sharing and more mutual trust’ (2011) <http://ec.europa.eu/dgs/home-affairs/news/intro/docs/201112/1_en_act_part1_v6.pdf.>
  • European Commission, Member States’ Support to Emergency Relocation Mechanism, (2016) available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf>
  • European Parliament, Briefing: Outcome Of The Extraordinary European Council Of 23 April 2015 (2015) <http://www.europarl.europa.eu/RegData/etudes/brie/2015/547557/eprs_bri(2015)547557_en.pdf.>
  • Frontex, Frontex Fundamental Rights Strategy (2011). Available at: http://frontex.europa.eu/assets/Publications/General/Frontex_Fundamental_Rights_Strategy.pdf
  • Nopoor (European Commission), “Refugee Crisis And EU Reaction: An Urgent Call For A Clearer And More Active Role” (2015)> www.nopoor.eu/download/file/fid/800
  • Parliamentary Assembly of the Council of Europe, Committee on Migration, Refugees and Displaced Persons, ‘After Dublin – The Urgent Need For A Real European Asylum System’ (Doc. 13866, 2016) http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref ViewPDF.asp?FileID=22016&Lang=en

Speeches

  • European Parliament, ‘Speech By The President Of The European Parliament, Martin Schulz At The High-Level Conference On ‘Digital Change In The Creative Economy, Trade And Mobility – Opportunities And Options To Shape The Future In Europe’’ (2015) 27 February 2016.
  • Schuman R, ‘La Déclaration Schuman Du 9 Mai 1950’ (19 April 2010) <http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_fr.htm>

Interviews

  • Langford LM, Interview with Hugo Brady, ‘Telephone Interview With Hugo Brady, Senior Research Fellow, Centre For European Reform’ (2012).

Press Releases

  • European Commission, ‘European Refugee Fund 2008-2013’ (2008), 4. <http://europa.eu/rapid/press-release_IP-08-1658_en.htm>
  • European Commission, ‘Implementing The Common European Asylum System: Commission Escalates 8 Infringement Proceedings’ (2015) <http://europa.eu/rapid/press-release_IP-15-6276_en.htm>
  • European Commission, ‘Questions And Answers On The European Agenda On Migration’ (2015) <http://europa.eu/rapid/press-release_MEMO-15-4957_en.htm>
  • European Commission, “Commission proposes temporary suspension of Sweden’s obligations under the EU relocation mechanism” (2015)< http://europa.eu/rapid/press-release_IP-15-6329_en.htm>
  • European Commission, “Implementing The Common European Asylum System: Commission Escalates 8 Infringement Proceedings” (2015) <http://europa.eu/rapid/press-release_IP-15-6276_en.htm>
  • European Parliament, ‘François Hollande And Angela Merkel Face Meps’ (2015) <http://www.europarl.europa.eu/news/en/news-room/20150929IPR94921/Fran%C3%A7ois-Hollande-and-Angela-Merkel-face-MEPs>
  • Frontex, ‘Frontex Is Not Involved In Diversion Activities To Libya’ (2009) <http://frontex.europa.eu/newsroom/news_releases/art70.html>
  • President of the European Commission Partners in Freedom: The EU Response to the Arab Spring Opera House Cairo, Egypt, 14 July 2011’ (14 July 2011) <http://europa.eu/rapid/press-release_speech-11-523_en.htm?locale=en>

Websites

Blogs

  • Brouwer E, ‘Migration Flows And The Reintroduction Of Internal Border Controls: Assessing Necessity And Proportionality’ <http://eumigrationlawblog.eu/migration-flows-and-the-reintroduction-of-internal-border-controls-assessing-necessity-and-proportionality/>
  • Peers S, ‘The Dublin Regulation: Is The End Nigh? Where Should Unaccompanied Children Apply For Asylum?’ <http://eulawanalysis.blogspot.com/2016/01/the-dublin-regulation-is-end-nigh-where.html>
  • Peers S, ‘The Dublin Regulation: Is The End Nigh? Where Should Unaccompanied Children Apply For Asylum?’ <http://eulawanalysis.blogspot.co.uk/2016/01/the-dublin-regulation-is-end-nigh-where.html>
  • Peers S, ‘The Reform Of Frontex: Saving Schengen At Refugees’ Expense?’ <http://eulawanalysis.blogspot.com/2015/12/the-reform-of-frontex-saving-schengen.html>
  • Peers S, “EU Law Analysis: Tarakhel V Switzerland: Another Nail In The Coffin Of The Dublin System?” (Eulawanalysis.blogspot.co.uk, 2014) <http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html>
  • Peers, S. (2014), “Do potential asylum-seekers have the right to a Schengen visa?” EU Law Analysis. http://eulawanalysis.blogspot.com/2014/01/do-potential-asylum-seekers-have-right.html

European Commission

  • European Commission, ‘Social Policy: Summaries Of EU Legislation’ (Ec.europa.eu, 1999) <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Aa14000>
  • European Commission, ‘Temporary Reintroduction Of Border Control’ (Ec.europa.eu, 2016) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm>
  • European Commission, ‘Work Programme Of The Commission’ (Ec.europa.eu, 2016) <http://ec.europa.eu/atwork/key-documents/index_en.htm>

News

  • BBC News, ‘Migrant Crisis ‘A German Problem’ – Hungary’s Orban – BBC News’ (2015) <http://www.bbc.co.uk/news/world-europe-34136823
  • DW, ‘De Maiziere: Germany To Receive Up To 800,000 Refugees’ (2016) <http://www.dw.com/en/de-maiziere-germany-to-receive-up-to-800000-refugees/a-18658409>
  • Maurice E, ‘Sweden To Tap Hungary’s EU Relocation Quota’ (Euobserver.com, 2015) <https://euobserver.com/migration/130961>
  • PRO ASYL, ‘For A European System Of Rescue At Sea!’ (2014) <http://www.proasyl.de/en/news/news-english/news/for_a_european_system_of_rescue_at_sea/>
  • Robinson D, ‘How The EU Plans To Overhaul ‘Dublin Regulation’ On Asylum Claims – FT.Com’ (Financial Times, 2016) <http://www.ft.com/cms/s/2/d08dc262-bed1-11e5-9fdb-87b8d15baec2.html#axzz41PoTqbAu>
  • UNHCR – Diplomatic row as France closes borders to keep out waves of refugees Refugees Daily (2011) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=4dabd11b5>
  • Willsher K, Kirchgaessner S, ‘Germany and France Demand Binding Refugee Quotas for EU Members’ The Guardian (3 September 2015) <http://www.theguardian.com/world/2015/sep/03/germany-france-eu-refugee-quotas-migration-crisis>
  • Spiegel Online International, ‘A Continent Adrift: Juncker Proposes Fixes To EU’s Broken Asylum Policies’ (Speigel Online, 2015) <http://www.spiegel.de/international/europe/refugee-crisis-in-europe-exposes-asylum-policy-shortcomings-a-1051481.html>

NGOs

  • Amnesty International, ‘A “Blueprint For Action” To End Refugee And Migrant Deaths In The Med’ (2015) <http://www.amnesty.org.au/news/comments/37039/>
  • ECRE, ‘Marenostrum To End – New Frontex Operation Will Not Ensure Rescue Of Migrants In International Waters – European Council On Refugees And Exiles’ (Ecre.org, 2014) <http://ecre.org/component/content/article/70-weekly-bulletin-articles/855-operation-mare-nostrum-to-end-frontex-triton-operation-will-not-ensure-rescue-at-sea-of-migrants-in-international-waters.html>
  • ECRE, ‘Western Balkans: Refugees Stranded At Borders Face Discrimination With No Access To Asylum – European Council On Refugees And Exiles’ (Ecre.org, 2016) <http://www.ecre.org/component/content/article/70-weekly-bulletin-articles/1292-western-balkans-refugees-stranded-at-borders-face-discrimination-with-no-access-to-asylum.html>
  • Human Rights Watch, ‘Italy-Libya Connection’ (2009) <https://www.hrw.org/news/2009/09/23/italy-libya-connection>

UNHCR

  • UNHCR Agenda for Protection, UN Doc. A/AC.96/965/Add. 1, 26 June 2002< available at: http://www.refworld.org/docid/3d4fd0266.html>
  • UNHCR, ‘2015 Likely To Break Records For Forced Displacement – Study’ (2015) <http://www.unhcr.org/print/5672c2576.html>
  • UNHCR, ‘Building On The Lessons Learned To Make The Relocation Schemes Work More Effectively’ (unhcr.org, 2016) <http://www.unhcr.org/569fad556.pdf>
  • UNHCR, ‘Despite War At Home, More Syrian Refugees Return From Iraq’ (2016) <http://www.unhcr.org/56b85b3d6.html>
  • UNHCR, ‘Numbers Of Refugee Arrivals To Greece Increase Dramatically’ (2015) <http://www.unhcr.org/55d3098d6.html>
  • UNHCR, ‘Refugees Without An Asylum Country – EXCOM Conclusions, 16 October 1979’ (1979) <http://www.unhcr.org/3ae68c960.html>
  • UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean’ (2016) <http://data.unhcr.org/mediterranean/regional.php>
  • UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean’ (2016) <http://data.unhcr.org/mediterranean/regional.php>
  • UNHCR, ‘UNHCR – Asylum And Migration’ (2016) <http://www.unhcr.org/pages/4a1d406060.html>
  • UNHCR, ‘UNHCR | Refugees Daily’ (Unhcr.org, 2015) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=564976bc5>
  • UNHCR, ‘Germany To Take Half A Million Refugees As Greek Isles Overwhelmed’ Refugee Daily (2015) <http://www.unhcr.org/cgi bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55efc57e5>
  • UNHCR, “Crossings Of Mediterranean Sea Exceed 300,000, Including 200,000 To Greece” (2015) <http://www.unhcr.org/55e06a5b6.html>
  • UNHCR, It’s risky to come to Europe, Hungary’s PM tells migrants’ (Unhcr.org, 2015) http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55e940a95
  • UNHCR, Syrians In Greece: Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf>

Other

  • Commissioner for Human Rights, “Spain: Legislation And Practice On Immigration And Asylum Must Adhere To Human Rights Standards” (2015) <http://www.coe.int/en/web/commissioner/-/spain-legislation-and-practice-on-immigration-and-asylum-must-adhere-to-human-rights-standards>
  • Dimitriadi A, ‘Burden Sharing, Where Art Thou?’ (Ecfr.eu, 2016) <http://www.ecfr.eu/article/commentary_burden_sharing_where_art_thou5003>
  • Frontex.europa.eu, ‘Frontex | Origin’ <http://frontex.europa.eu/about-frontex/origin/>
  • Grabbe H. ‘Saving the Euro, Losing Trust’ (opensocietyfoundations.org, 2012) <https://www.opensocietyfoundations.org/voices/saving-the-euro-losing-trust>
  • Peers S, ‘The Revised “Dublin Rules on Responsibility for Asylum-Seekers: A Missed Opportunity’ Statewatch Analysis (2012) 2, <www.statewatch.org/analyses/no-181-dublin.pdf>
  • Peers S, The second phase of the Common European Asylum System: A brave new world – or lipstick on a pig? Statewatch Analysis (2013) 16 <http://www.statewatch.org/analyses/no-220-ceas-second-phase.pdf>
  • Rona-Tas A, ‘Dublin 3 Must Go And We Must Let Refugees Fly | Visegrad Insight’ (Visegradinsight.eu, 2015) <http://visegradinsight.eu/dublin-3-must-go-and-we-must-let-refugees-fly/>
  • UNHCR ‘International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update II’ (22 October 2013) <http://www.refworld.org/ docid/5265184f4.html>

[1] This refers to the democratic uprisings that arose and spread across the Arab world, beginning in Tunisia before taking hold in Egypt, Libya, Syria, Yemen, Bahrain, Saudi Arabia and Jordan. For more on the Arab Spring’s origination see: J. Bowen, “The Arab Uprising: The People Want the Fall of the Regime” (Simon & Schuster, 2012).

[2] José Manuel Barroso, ‘European Commission – Press Release – José Manuel Durão Barroso President of the European Commission Partners in Freedom: The EU Response to the Arab Spring Opera House Cairo, Egypt, 14 July 2011’ (14 July 2011) <http://europa.eu/rapid/press-release_SPEECH-11-523_en.htm?locale=en> accessed 1 December 2015.

[3] ibid.

[4] UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean’ (2016) <http://data.unhcr.org/mediterranean/regional.php> accessed 25 February 2016.

[5] UNHCR, ‘2015 Likely To Break Records For Forced Displacement – Study’ (2015) <http://www.unhcr.org/print/5672c2576.html> accessed 4 February 2016.

[6] Amnesty International, ‘The Global Refugee Crisis: A Conspiracy of Neglect’ (Amnesty International Publications 2015) <http://static.guim.co.uk/ni/1434356535972/The-Global-Refugee-Crisis-a.pdf> accessed 1 December 2015.

[7] Nopoor (European Commission), ‘Refugee Crisis And EU Reaction: An Urgent Call For A Clearer And More Active Role’ (2015) 1.

[8] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 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, OJ L 180, 29 June 2013, p. 31 ff.

[9] J. Lenart, ‘’Fortress Europe’: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012) 28 Utrecht Journal of International and European Law 4, 4.

[10] (n. 8) Article 3(2), the ‘First State of Arrival’ rule.

[11] J. Campbell, “Asylum vs. Sovereignty In The 21st Century: How Nation-State’s Breach International Law To Block Access To Asylum” (2015) 1 International Journal of Migration and Border Studies, 1, 1.

[12] J. Rawls, “A Theory of Justice” (HUP, 1971) 472. Note that the terms ‘tenets’ and ‘cooperative virtues’ will be used interchangeably in this essay.

[13] R. Schuman, ‘La Déclaration Schuman Du 9 Mai 1950’ (19 April 2010) <http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_fr.htm> accessed 4 December 2015.

[14] See generally Article 3 TEU and Article 222 TFEU.

[15] The principle of solidarity was first recognised as a general principle of EU Law in Commission v. Italy C-102/1973. See also Commission v. Great Britain C-419/1978.

[16] H. Hestermeyer, ‘Solidarity in International Environmental and Trade Law’ Coexistence, cooperation and solidarity’ in H. Hestermeyer and others (eds) (Martinus Nijhoff Publishers, 2011) 49.

[17] A. McDonnell, ‘Solidarity, Flexibility and the Euro-Crisis: Where Do Principles Fit In? in “The EU After Lisbon: Amending or Coping with the Existing Treaties?” eds. L.S Rossi, F. Casolari (Springer, 2014) 85.

[18] I.G. Lang, ‘The EU Financial and Migration Crises: Two Crises – Many Facets of EU Solidarity’ ‘Solidarity – A General Principle of EU law? (1st edn, Edward Elgar 2015 – forthcoming)’ in A. Biondi, E. Dagilyte and E. Kucuk (eds), 7.

[19] A. Sangiovanni, ‘Solidarity in the European Union’ (2013) 1 Oxford Journal of Legal Studies 1, 3.

[20] ibid.

[21] Treaty of Rome, Treaty Establishing the European Community, 25 March 1957.

[22] P. Hilpold, ‘Understanding Solidarity within EU Law: An Analysis of the “Islands of Solidarity” with Particular Regard to Monetary Union’ (2015) 34 Yearbook of European Law, 257, 260

[23] ibid.

[24] Treaty on European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992, OJ C 325/5; 24 December 2002.

[25] M. Bell, ‘Irregular Migrants : Beyond the Limits of Solidarity?’ in ‘Promoting solidarity in the European Union’ M. Ross and Y. Borgmann-Prebil (eds) (OUP, 2010), 155.

[26] See the Treaty’s Protocol on Social Policy, which by Art 51 TEU formed part of Union law. It significantly broadened Union competence in the social-policy field whilst increasing the areas in which measures could be adopted by qualified majority vote, for a summary of the social changes see: europa.eu, ‘Social Policy: Summaries Of EU Legislation’ (1999) <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Aa14000> accessed 23 February 2016.

[27] (no 22) 4

[28] R. Wolfrum, ‘Solidarity’ in Dinah Shelton (ed), The Oxford handbook of international human rights law (OUP, 2013), 418.

[29] ibid.

[30] MSS v Belgium and Greece App no 30696/09 (ECHR, 21 January 2011) [251]

[31] J. Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89 – 98.

[32] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/01

[33] Emphasis added.

[34] As described by J. Habermas, who explains the ‘we perspective’ as a commonality among the members of a community: J. Habermas, “Between Facts and Norms” (Polity Press, 1997) 499.

[35] I. Hartwig, P. Nicolaides, ‘Elusive Solidarity in an Enlarged European Union’ (2003) 3 EIPAScope, 19-21

[36] (n. 22)

[37] HC Deb 7 September 2015, Vol 599, Col 30

[38] This is not to say that people needing protection are a burden per se, but merely that their acceptance necessarily entails, having not yet been integrated into the local economy, a cost to the social welfare system that cannot be ignored. For a discussion on the use of the phrase ‘burden’ see: See M. Gottwald, ‘Burden Sharing and Refugee Protection’ in ‘ The Oxford Handbook of Refugee and Forced Migration Studies’ Elena Fiddian-Qasmiyeh and others (eds) (OUP 2014), 525.

[39] (n. 37)

[40] K. Willsher and S. Kirchgaessner, ‘Germany and France Demand Binding Refugee Quotas for EU Members’ The Guardian (3 September 2015) <http://www.theguardian.com/world/2015/sep/03/germany-france-eu-refugee-quotas-migration-crisis> accessed 4 December 2015.

[41]  ibid. 497. Also note that whilst Rawls had considered peoples, not states, as the relevant actors in reasoning about justice, he failed to provide an analytically viable distinction between the two. See: S. Benhabib, The Law of Peoples, Distributive Justice and Migrants (2004) 72 Fordham Law Review, 1761, 1764

[42] (n. 32)

[43] M. D. Zürcher,“Solidarity, Recognition and the Community: Phenomenology, Theory and Criticism of Solidarity” (Tübingen, 1998) 175.

[44] (n. 28)

[45] K.O. Hondrich, C. Koch-Arzberger, Solidarity in Modern Society (Fischer Paperback Publisher, 1992) 14.

[46] (n. 12) 163.

[47] The nickname given to a migrant/asylum seeker encampment on the border between two states, particularly that in the vicinity of Calais, France, where many live whilst attempting to enter the United Kingdom. 

[48] J. Rawls, “The Law of Peoples” (HUP, 1999) 106. Emphasis added.

[49] A. Sangiovanni, ‘Solidarity in the European Union’ Oxford Journal of Legal Studies 33 (2013) 1, 3.

[50] S. Derpmann, ‘Solidarity and Cosmopolitanism’ (2008) 12 Ethical Theory and Moral Practice, 303, 304.

[51] (n. 12) 62. These were described by Rawls as goods that are desirable for every human being, and are basic to the life-plans of individuals.

[52] M. Walzer, ‘Sphere of Justice: A Defence of Pluralism and Equality’ (Basic Books, 1983) 31.

[53] A. Wildt, ‘Remarks on the Historical Concepts and Ideas of Solidarity and a Proposed Definition for this Term Today’ in Giuseppe Orsi (ed), Solidarity (Frankfurt/M, 1995) 45.

[54] Not always though: see “Incentive for Infidelity” at chapter 3.1.2 of this essay, where ‘fairness’ towards refugees was a consequence of legal infidelity.

[55] (n. 12) 344.

[56] Convention Relating to the Status of Refugees, adopted Geneva 28 July 1951, entered into force 22 April 1954, 189 UNTS 137 ff, together with its Protocol Relating to the Status of Refugees of 31 January 1967.

[57] ibid. Article 1A(2).

[58] UNHCR ‘International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update II’ (22 October 2013) <http://www.refworld.org/ docid/5265184f4.html> accessed 21 Jan 2016. N.B. refugee status does not depend on formal State recognition. Rather, refugee status is recognised because the applicant for protection is already a refugee within the meaning of the Convention.

[59] (n 56) Article 33(1).

[60] Convention for the Protection of Human Rights and Fundamental Freedoms, adopted Rome 4 November 1950, entered into force 3 September 1953, 213 UNTS 221 ff.

[61] The CJEU had decided that the draft agreement for accession might risk “adversely affecting the division of powers between the EU and its Member States”: Opinion C-2/13, judgment of 18 December 2014 (Full Court). However, accession is back on the agenda under the European Commission’s programme of work 2016, see: Ec.europa.eu, ‘Work Programme Of The Commission’ (2016) <http://ec.europa.eu/atwork/key-documents/index_en.htm> accessed 16 February 2016.

[62] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed Lisbon, 13 December 2007, OJ C 306, 17 December 2007, p. 1 ff.

[63] A. Hurwitz, “The Collective Responsibility of States to Protect Refugees” (OUP, 2010) 190

[64] Charter of Fundamental Rights of the European Union 18 December 2000 C 364/01

[65] (n. 62) Article 6(1)

[66] J. Rawls, “A Theory of Justice” (HUP, 1999) 102-105.

[67] ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Enhanced Intra-EU Solidarity in the Field of asylum: An EU Agenda for Better Responsibility-Sharing and Mutual Trust’ (2011) <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52011DC0835> accessed 4 December 2015.

[68] European Commission (2011) Communication on Enhanced Intra-EU Solidarity in the Field of Asylum. An EU Agenda for Better Responsibility-sharing and more Mutual Trust”, Brussels, COM (2011) 835 final (2 December). Whilst EU legal instruments make no express reference to ‘trust’, it is conceptually well-embedded within the EU’s constitutional framework: See e.g. Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649.

[69] D.W. Drezner, ‘The Realist Tradition in American Public Opinion’ (2008) 6 Perspectives of Politics 51, 54.

[70] V. Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ (2014) 2 Comparative Migration Studies 181, 182.

[71] E. Brouwer, ‘Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof” (2013) 1 Utrecht Law Review 135, 138.

[72] F. Maiani and C. Hruschka, ‘The Sharing of Responsibilities in the Dublin Space, between Mutual Trust – and Security for asylum seekers’ (2011) 2 ASYL 12, 12. The concept of ‘equivalency’ was first developed in Bosphorus v Ireland App no 45036/98 (ECtHR, 30 June 2005) [155]-[157].

[73] M. Cases-Cortes, S. Cobarrubias, J. Pickles, ‘‘Good Neighbours Make Good Fences’: Seahorse Operations, Borders Externalisation and Extra-Territoriality’ (2014) 1 European and Regional Studies, 1.

[74] The importance lies, therefore, in the degree of border control implemented. As the UNHCR note, “while recognizing that border controls are essential for combatting international crime, including smuggling and trafficking, UNHCR stresses the need for practical protection safeguards to ensure that such measures are not applied in an indiscriminate or disproportionate manner and do not lead to refugees being returned to countries where their life or liberty would be at risk”: ‘UNHCR – Asylum And Migration’ (2016) <http://www.unhcr.org/pages/4a1d406060.html> accessed 18 February 2016.

[75] (n. 66) 102-105.

[76] D.J. Besharov, M.H. Lopez, ‘Adjusting to a World in Motion: Trends in Global Migration and Migration Policy’ (OUP, 2016) 176.

[77] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ L 180, 29 June 2013, p. 96 ff.

[78] Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180, 29 June 2013, p. 60 ff.

[79] Reg No 603/2013 of The European Parliament and of the Council of 26 June 2013 on the Establishment of ‘EURODAC’ for the Comparison of Fingerprints for the Effective Application of Regulation (EU) No 604/2013 L180/128 June 2013

[80] (n. 8) Article 18(1)(a)-(d).

[81] See e.g. Elspeth Guild, “Seeking Asylum: Storm Clouds Between International Commitments And EU Legislative Measures” (2004) 29 European Law Review. 198.

[82]  European Commission, ‘Questions And Answers On The European Agenda On Migration’ (2015) <http://europa.eu/rapid/press-release_MEMO-15-4957_en.htm> accessed 5 March 2016.

[83] See e.g. Shamso Abdullahi v Bundesasylamt (Case C-394/12, judgment of 10 December 2013),where the CJEU stated that one of the primary objectives of the Dublin Regulation is the establishment of a clear means of determining quickly theresponsible MS for the processing of an asylum application in order to not to compromise the aims of the rapid processing of asylumclaims [59].

[84] See e.g. House of Lords Select Committee on the European Union (2001-2002) Asylum Applications – Who Decides?, 19th Report, session 2001-02.

[85] Ibid. [27] This pertains to refugees unable to find a MS willing to examine their asylum application.

[86] V. Guiraudon ‘European Integration and Migration Policy: Vertical Policy-making as Venue Shopping’ 38 (2000) Journal of Common Market Studies, 251. This relates to the phenomenon where multiple applications or asylum are made across the EU by the same person.

[87] G. Noll ‘Risky Games? A Theoretical Approach to Burden-Sharing in the Asylum Field’ (2003) 16 Journal of Refugee Studies 236, 252.

[88] M. Penelope ‘Resolution 1373: A Call to Pre-Empt Asylum Seekers? (Or ‘Osama’ the Asylum Seeker) in “Forced Migration, Human Rights and Security” ed. J. McAdam (Hart Publishing, 2008) 52.

[89] H. O’Nions, “Asylum – A Right Denied” (Farnham: Ashgate Publishing 2014) 191

[90] A. Buonfino ‘Between Unity and Plurality: The Politicization and Securitization of the Discourse of Immigration in Europe’ (2004) 26 New Political Science 23, 39-40. M. Grewcock, ‘Border Crimes: Australia’s War Against Illicit Migrants’ (Sydney: Institute of Criminology Press, 2009).

[91] H. Battjes, ‘Mutual Trust in Asylum Matters: The Dublin System’ in The Principle of Mutual Trust in European Asylum, Migration and Criminal Law (Institute for Multicultural Affairs, 2011) 8-18.

[92] G. Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff Publishers 2000) 191.

[93] Note that whilst geographically part of Europe, Norway is not part of the EU. Nonetheless, it does partake in the Dublin system.

[94] J.P. Brekke, ‘Stuck in Transit: Secondary Migration of Asylum Seekers in Europe, National Differences, and the Dublin Regulation’ (2015) 28 Journal of Refugee Studies 145.

[95] MSS v Belgium and Greece, Application No. 30696/09, judgment of 21 January 2011 (ECtHR) [223]-[234]

[96] See e.g. H. Neo and K. Lee, ‘Germany To Take Half A Million Refugees As Greek Isles Overwhelmed’ UNHCR Refugees Daily (2015) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55efc57e5> accessed 24 February 2016

[97] Human Rights Watch, ‘Italy-Libya Connection’ (2009) <https://www.hrw.org/news/2009/09/23/italy-libya-connection> accessed 24 February 2016.

[98] Hirsi Jamaa and Others v Italy, Application No.27765/09, judgment of 23 February 2012 (Grand Chamber of the ECtHR) [180].

[99] The Organic Law 4/2000 of 11 January, on the rights and liberties of foreign persons in Spain and their social integration, as amended by Organic Law 2/2009, of 11 December 2009 (‘Aliens Act’).

[100] Commissioner for Human Rights, “Spain: Legislation And Practice On Immigration And Asylum Must Adhere To Human Rights Standards” (2015) <http://www.coe.int/en/web/commissioner/-/spain-legislation-and-practice-on-immigration-and-asylum-must-adhere-to-human-rights-standards> accessed 26 January 2016.

[101] The ECtHR in N.D. and N.T. v. Spain (no. 8675/15 and no. 8697/15) has requested information from the Spanish government on the procedures available to asylum applicants at the border of the Spanish enclave of Melilla.

[102] Regulation (EU) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office.

[103] European Commission, ‘Implementing The Common European Asylum System: Commission Escalates 8 Infringement Proceedings’ (2015) <http://europa.eu/rapid/press-release_IP-15-6276_en.htm> accessed 12 February 2016.

[104] E. Brouwer, ‘Eurodac: Its Temptations and Limitations’ (2002) 4 European Journal of Migration and Law 231, 244.

[105] European Scrutiny Committee, Twenty-Second Report – Implementation of Migration Hotspots in Greece and Italy (HC 2015-16, 342-xxi) [5.3]

[106] European Commission, The Hotspot Approach To Managing Exceptional Migratory Flows (2015) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/2_hotspots_en.pdf> accessed 26 January 2016.

[107] Similarly see: UNHCR, ‘Diplomatic row as France closes borders to keep out waves of refugees’ (2011) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=4dabd11b5> accessed 26 January 2016, where the Italian government distributed permits to over 22,000 asylum seekers (and sanctioning travel within the extensive Schengen area) provoking the French government to illegally close its borders as resentment amid a bitter feud.

[108] Joined Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand Chamber of the CJEU), [90].

[109] As imposed by the ECtHR in MSS (n. 30).

[110] J. Bast, “Deepening Supranational Integration: Interstate Solidarity In EU Migration Law” (2015) 22 European Public Law 1, 10.

[111] Although pre-CEAS, the notion of effectively rewarding a state for breaching international obligations in a common system of asylum was discussed in: D. Anker, J. Fitzpatrick, A Shacknove, “A Crisis and Cure: A Reply to Hathaway/Neve and Schuck” Harvard Human Rights Journal 11 (1998) 295, 300

[112] Parliamentary Assembly of the Council of Europe, Committee on Migration, Refugees and Displaced Persons, ‘After Dublin – The Urgent Need For A Real European Asylum System’ (2016) 11.

[113] European Commission, “Press Release – Implementing The Common European Asylum System: Commission Escalates 8 Infringement Proceedings” (Europa.eu, 2015) <http://europa.eu/rapid/press-release_IP-15-6276_en.htm> accessed 26 January 2016.

[114] See e.g. A. Zhelyazkova, “Complying With EU Directives’ Requirements: The Link Between EU Decision-Making And The Correct Transposition Of EU Provisions” (2013) 20 Journal of European Public Policy, 702. where it is noted that compliance rates of infringement proceedings are uncertain.

[115] Note that whilst the ECtHR is legal body of the Council of Europe and therefore not an institution of the EU, all EU MSs are signatories to the ECHR and the EU is looking to accede to the ECHR, see (n. 61).

[116] S. Velluti, Reforming The Common European Asylum System – Legislative Developments And Judicial Activism Of The European Courts, (2015) 27 International Journal of Refugee Law, 519.

[117] S. Carrera, M. De Somer, B. Petkova, The Court of Justice of the European Union as a Fundamental Rights Tribunal. In: Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice CEPS. (2012) Papers in Liberty and Security, No. 49.

[118] F. Jacobs, The Sovereignty of Law: the European Way—the Hamlyn Lectures 2006 (CUP 2007), 54.

[119] KRS v the United Kingdom, Application No. 32733/08 (decision on admissibility), 2 December 2008 (Fourth Section of the ECtHR)

[120] ibid. [16]-[17]

[121] ibid. [17]

[122] G. S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, in “Jesuit Refugee Service, Safe and Secure: How do Refugees Experience Europe’s Borders?” S. Kessler (ed) (JRS, 2011) 12

[123] (n. 30)

[124] Joined Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand Chamber of the CJEU)

[125] ibid. [94] N.B. the threshold has since been incorporated into Article 3(3) of the Dublin Regulation.

[126] Within the meaning of Article 4 of the European Charter, but also applies to Art 3 ECHR.

[127] C. Costello, The Human Rights Of Migrants And Refugees In European Law (OUP 2015), 262.

[128] Previously Article 3(2) of the Dublin II Regulation.

[129] (n. 30) [3] 

[130] Shamso Abdullahi v Bundesasylamt, Case C-394/12, judgment of 10 December 2013 (Grand Chamber of the CJEU). The Court determined that a finding of ‘systematic deficiency’ is the only way an applicant might call into question an assumption of MS responsibility [60].

[131] S. Peers, “EU Law Analysis: Tarakhel V Switzerland: Another Nail In The Coffin Of The Dublin System?” (Eulawanalysis.blogspot.co.uk, 2014) <http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html> accessed 26 January 2016.

[132] Tarakhel v Switzerland, Application no. 29217/12, judgment of 04 November 2014 (Grand Chamber of the European Court of Human Rights).

[133] C. Costello and M. Mouzourakis, ‘Reflections on reading Tarakhel: Is ‘How Bad is Bad Enough’ Good Enough?’ (2014) 10 Asiel & Migrantenrecht, 404, 411.

[134] (n. 131) [104]

[135] ibid. [121]

[136] ibid. [114]

[137] S. Peers, “EU Law Analysis: Tarakhel V Switzerland: Another Nail In The Coffin Of The Dublin System?” (Eulawanalysis.blogspot.co.uk, 2014) <http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html> accessed 26 January 2016. Whilst a violation was found in the facts in Tarakhel, a return to Italy from Switzerland was found not to violate Article 3 in the recent case of AS v Switzerland, Application No. 39350/13, judgment of 30 June 2015 (ECtHR)

[138] (n. 30) [358]

[139] The notion that, upon returning the asylum-seeker to Greece, they risk being directly refouled by the Greek authorities to Afghanistan

[140] (n. 30) [342]

[141] L.M. Langford, “The Other Euro Crisis: Rights Violations Under The Common European Asylum System And The Unraveling Of EU Solidarity” (2013) 26 Harvard Human Rights Review, 217, 237-238.

[142] K v Bundesasylamt (Austria), C-245/11, judgment of 06 November 2012 (Grand Chamber of the CJEU)

[143] (n. 8) Article 12(2). It had been Article 15(2) under the Dublin II Regulation.

[144] MA, BT, DA v Secretary of State for the Home Department, C-648/11, judgment of 06 June 2013 (Fourth Chamber of the CJEU)

[145] ibid. [55]

[146] European Commission, IP/14/723, Press Relsease, ‘Clearer EU Rules for Unaccompanied Minors Seeking International Protection’ Brussels, 26 June 2014.

[147] (n 116)

[148] C. Kaunert, S. Leonard, ‘The Development of the EU Asylum Policy: Venue-Shopping in Perspective’ Journal of European Public Policy 19 (2012) 1396, 1406.

[149] European Parliament, ‘François Hollande And Angela Merkel Face Meps’ (2015) <http://www.europarl.europa.eu/news/en/news-room/20150929IPR94921/Fran%C3%A7ois-Hollande-and-Angela-Merkel-face-MEPs> accessed 25 February 2016.

[150] (n 8) Article 17(1)

[151] The CJEU has confirmed in Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet, C-528/11, judgment of 30 May 2013 (Fourth Chamber of the CJEU) found that Member States had unfettered scope to assume responsibility for any asylum claim that they chose to determine under the sovereignty clause.

[152] The UNHR reported that 82% were Syrian when the announcement was made: UNHCR, ‘Numbers Of Refugee Arrivals To Greece Increase Dramatically’ (2015) <http://www.unhcr.org/55d3098d6.html> accessed 26 February 2016.

[153] See: DW, ‘De Maiziere: Germany To Receive Up To 800,000 Refugees’ (2016) <http://www.dw.com/en/de-maiziere-germany-to-receive-up-to-800000-refugees/a-18658409> accessed 25 February 2016

[154] HC Deb 7 Sep 2015, vol 599, Col 24.

[155] Germany’s compassion was all the more necessary practically speaking as refugee flows reached up to 12,000 a day at Munich’s main railway station in the closing days of summer, overwhelming the local administration. For more see: F.Heisbourg ‘The Strategic Implications of the Syrian Refugee Crisis’ 57 Survival 7, 12

[156] European Policy Centre, “Heads Buried In The Sand: Member States Block Solutions To The Refugee Crisis” (2015) 1. <http://www.epc.eu/documents/uploads/pub_5923_heads_buried_in_the_sand.pdf> accessed 28 January 2016.

[157] BBC News, ‘Migrant Crisis ‘A German Problem’ – Hungary’s Orban – BBC News’ (2015) <http://www.bbc.co.uk/news/world-europe-34136823> accessed 25 February 2016.

[158] UNHCR, ‘Austria to build fence on Slovenia border in new blow to Schengen pact’ (Unhcr.org, 2015) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=564976bc5> accessed 5 March 2016.

[159] Note that Norway is a non-EU State.

[160] European Commission, ‘Temporary Reintroduction Of Border Control’ (Ec.europa.eu, 2016) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm> accessed 28 February 2016.

[161] Reintroduction of border controls performed pursuant to Article 23 of Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). Yet, questions as to its legality see: E. Brouwer, ‘Migration Flows And The Reintroduction Of Internal Border Controls: Assessing Necessity And Proportionality’ (2015) <http://eumigrationlawblog.eu/migration-flows-and-the-reintroduction-of-internal-border-controls-assessing-necessity-and-proportionality/> accessed 28 February 2016.

[162] ECRE, ‘Western Balkans: Refugees Stranded At Borders Face Discrimination With No Access To Asylum – European Council On Refugees And Exiles’ (Ecre.org, 2016) <http://www.ecre.org/component/content/article/70-weekly-bulletin-articles/1292-western-balkans-refugees-stranded-at-borders-face-discrimination-with-no-access-to-asylum.html> accessed 29 February 2016.

[163] H. Grabbe, ‘Saving the Euro, Losing Trust’ (opensocietyfoundations.org, 27 June 2012) <https://www.opensocietyfoundations.org/voices/saving-the-euro-losing-trust> accessed 4 December 2015.

[164] That, in 2012, just 275 Syrians claimed asylum in Greece, with almost 8000 arrests of Syrian nationals, by Greek authorities, for irregular entry is indicative of this trend: UNHCR, Syrians In Greece: Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf> accessed 26 January 2016.

[165] In the first 8 months of 2015, the Mediterranean witnessed the drowning of over 2500 refugees en route to Europe: UNHCR, “Crossings Of Mediterranean Sea Exceed 300,000, including 200,000 To Greece” (2015). <http://www.unhcr.org/55e06a5b6.html> accessed 27 January 2016.

[166] As Rona-Tas has observed, a flight from Amman, Jordan to Berlin, Germany is ~$500. The cost of dangerously traversing from Jordan to Hungary is counted in thousands: Akos Rona-Tas, ‘Dublin 3 Must Go And We Must Let Refugees Fly | Visegrad Insight’ (Visegradinsight.eu, 2015) <http://visegradinsight.eu/dublin-3-must-go-and-we-must-let-refugees-fly/> accessed 8 February 2016.

[167] G. Van Kessel, ‘Global Migration and Asylum’ (2001) 10 Forced Migration Review 10, 10.

[168] Convention Applying the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders of 19 June 1990.

[169] Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).

[170] Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).

[171] EU 2001/51/EC. This supplements Article 26 of the Schengen Convention which imposes a threefold obligation on carriers: (i) to return aliens refused entry into MS territory, (ii) to ensure that aliens transported hold the relevant documents necessary for entry and (iii) to pay penalties for transporting for transporting aliens who lack the necessary travel documents.

[172] Such as airlines and ferry operators.

[173] Whilst Article 26 of the Schengen Convention refers only to ‘travel documents’, which is listed as a separate requirement to the possession of a valid visa (Article 5(1)(a) and (b) of the Schengen Borders Code), the original proposal for the Carriers Liability Directive had included the failure to demonstrate a valid visa as a ground for the imposition of penalties. Despite its eventual omission, the bringing of persons into MS territory without a required visa has operated as a de facto ground for the imposition of penalties, see: M.D. Heijer, Europe and Extraterritorial Asylum (Bloomsbury, 2012) 177.

[174] Council of the European Union, Council Directive 2001/51/EC of 28 June 2001 Supplementing the Provisions of Article 26 of the Convention Implementing the Schengen Agreement of 14 June 1985 2001.

[175] T. Rodenhauser, “Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control” (2014) 26  International Journal of Refugee Law 223, 224.

[176] T. Gammeltoft-Hansen, “Access to Asylum: International Refugee Law and the Globalisation of Migration Control” (CUP, 2011) 174.

[177] UNHCR, ‘Despite War At Home, More Syrian Refugees Return From Iraq’ (2016) <http://www.unhcr.org/56b85b3d6.html> accessed 25 February 2016.

[178] S. Scholten, “The Privatisation of Immigration Control through Carrier Sanctions: The Role of Private Transport Companies in Dutch and British Immigration Control” (Brill | Nijhoff, 2015) 41.

[179] M. J. Gibney, ‘Beyond the Bounds of Responsibility: Western States and Measures to Prevent the Arrival of Refugees’, (2005) 22 Global Migration Perspectives, 1, 9.

[180] S. Scholten, P Minderhound, “Regulating Immigration Control: Carrier Sanctions in the Netherlands” (2008) 10 European Journal of Migration and Law,123,130. This is done in order to reduce the expenditure required to employ and train staff required in order to implement extra-territorial border control functions, whilst circumventing issues of sovereignty: see e.g. P. R. Verkuil, “Outsourcing Sovereignty: Why Privatization of Government Functions Threatens and What We Can Do about It” (CUP, 2007) 71.

[181] Article 4(1)(c) of Directive 2001/51/EC provides that ‘the maximum amount of the penalty imposed as a lump sum for each infringement is not less that EUR 500,000 or equivalent national currency’.

[182] J.C. Hathaway, The Rights of Refugees under International Law (CUP 2005) 384.

[183] An asylum-seeker will rarely have obtained a visa: G.S. Goodwin-Gill, J. McAdam “The Refugee in International Law” (OUP, 2007) 377.

[184] (n. 56).

[185] Note that the conduct of a private carrier can give rise to MS liability under International Law: see e.g. the ECtHR in Hirsi Jamaa and Others v Italy, Application No.27765/09, judgment of 23 February 2012 (Grand Chamber of the ECtHR) which found that MSs exercise jurisdiction over persons “whenever the State through its agents operating outside its territory exercises control and authority over an individual” (emphasis added) [74].

[186] R v Immigration Officer at Prague Airport [2004] UKHL 55.

[187] Ibid. [17]

[188] Sale, Acting Commissioner, Immigration and Naturalization Service et al v Haitian Centers Council Inc et al 509 US 155 (US SC, Jun. 21, 1993), per Stevens J [181].

[189] R v Immigration Officer at Prague Airport, Written Case on Behalf of the Intervener [UNHCR] (2004) House of Lords, [19]-[38]

[190] See chapter 3.2.2 of this essay.

[191] E Lauterpacht, D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ (UNHCR 2001), 82.

[192] Rahmanian Koushkaki v Germany, C-84/12, judgement of 19 December 2013 (Grand Chamber).

[193] As carrier sanctions are irrelevant where the passenger has correct documentation.

[194] (n. 174) Article 4(1)-(4).

[195] A permit of one of the Schengen Area MSs to transit or reside in the desired territory for a period of time up to the maximum of 90 days every six month period beginning from the entry date.

[196] (n. 169) Article 1(a)-(e)

[197] (n. 170) Article 32(1)(a)(i)-(vii) and 32(1)(b).

[198] Opinion of Advocate-General Mengozzi, Rahmanian Koushkaki v Germany, C-84/12, delivered on 11 April 2013.

[199] (n. 192) [45]

[200] Peers, S. (2014), “Do potential asylum-seekers have the right to a Schengen visa?” EU Law Analysis. These visas are valid in one MS only.

[201] (n. 170) Article 25. Emphasis added.

[202] See e.g. EUCFR Article 18.

[203] (n. 200)

[204] (n. 56)

[205] (n. 170) Annex VII [4]: LTV Visas are limited to 90 days in every six-month period.

[206] U. Jensen, Humanitarian Visas: Option Or Obligation? Policy Department C: Citizens’ Rights and Constitutional Affairs (2014) 26-27. <http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.pdf.> accessed 22 February 2016.

[207] Treaty of Nice, Amending the Treaty on European Union, 26 February 2001, OJ C 80/10

[208] Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, Art. 1(2).

[209] ibid. Article 2(1)(a). For an in-depth discussion regarding Frontex’s responsibilities see e.g. J.J. Rijpma, ‘Hybrid agencification in the Area of Freedom, Security and Justice and its inherent tensions: the case of Frontex’ in The agency phenomenon in the European Union, M. Busuioc, M. Groenleer, J. Trondal (eds) (Manchester University Press, 2012).

[210] For details into the origins of Frontex see: Frontex.europa.eu, ‘Frontex | Origin’ <http://frontex.europa.eu/about-frontex/origin/> accessed 12 February 2016.

[211] Recital 4 of its founding regulation stresses that “the responsibility for the control and surveillance of external borders lies with the Member States”.

[212] Frontex defines its primary purpose as the “coordination of intelligence driven operational cooperation at EU level to strengthen security at external borders.” More about Frontex, FRONTEX, http:// www.frontex.europa.eu/more_about_frontex/<accessed 11 February 2016>

[213] H. Jorry, ‘Construction of a European Institutional Model for Managing Operational Cooperation at the EU’s External Borders: Is the FRONTEX Agency a decisive step forward? CEPS Challenge Paper, No. 6 (2007) 2.

[214] (n. 208) recital 5.

[215] D. Bigo, A. Tsoukala ‘Understanding (in)security’ in “Terror, insecurity and liberty: illiberal practices of liberal regimes after 9/11” (eds.) D. Bigo, A. Tsoukala (2008, Routledge) 1.

[216] M. Fink, ‘A ‘Blind Spot’ in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ Forthcoming in Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement’ T Gammeltoft-Hansen, J Vedsted-Hansen (eds)(2015)

[217] Mitsilegas has also labelled this “preventative solidarity”: V. Mitsilegas, ‘Solidarity and Trust in the Common Asylum System’ Comparative Migration Studies 2 (2014) 181, 188.

[218] (n. 88)

[219] Tackrah has observed the link between the dehumanisation of individuals and their “stripping of fundamental rights”: J. R. Thackrah, Dictionary of Terrorism (Routledge, 2003) 91.

[220] JOs are “operational activities carried out by two or more MSs, and possibly in cooperation with the Agency, with a view to strengthen surveillance and control at a section of the external borders”: Proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders COM/2003/0687 final – CNS 2003/0273, 11 November 2003, recital 8.

[221] European Parliament, Briefing: Outcome Of The Extraordinary European Council Of 23 April 2015 (2015) <http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/547557/EPRS_BRI(2015)547557_EN.pdf.> accessed 15 February 2016.

[222] See e.g. Amnesty International, Europe’s Sinking Shame: The Failure To Save Refugees And Migrants At Sea. London: Amnesty International (2015) 15 <https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/EUR03143415-26032_Europe%20Sinking%20Shame_Full%20Version?CMD=VEROBJ&MLKOB=33237320303> accessed 5 March 2016

[223] European Parliament, ‘Speech By The President Of The European Parliament, Martin Schulz At The High-Level Conference On ‘Digital Change In The Creative Economy, Trade And Mobility – Opportunities And Options To Shape The Future In Europe’’ (2015) 27 February 2016.

[224] PRO ASYL, ‘For A European System Of Rescue At Sea!’ (2014) <http://www.proasyl.de/en/news/news-english/news/for_a_european_system_of_rescue_at_sea/> accessed 25 February 2016.

[225] ECRE, ‘Marenostrum To End – New Frontex Operation Will Not Ensure Rescue Of Migrants In International Waters – European Council On Refugees And Exiles’ (Ecre.org, 2014) <http://ecre.org/component/content/article/70-weekly-bulletin-articles/855-operation-mare-nostrum-to-end-frontex-triton-operation-will-not-ensure-rescue-at-sea-of-migrants-in-international-waters.html> accessed 18 February 2016.

[226] Amnesty International, ‘A “Blueprint For Action” To End Refugee And Migrant Deaths In The Med’ (2015) <http://www.amnesty.org.au/news/comments/37039/> accessed 19 January 2016. Note that whilst Triton’s budget and operational area was increased after 800 asylum-seekers overturned and died in April 2015, by the summer, vessels operating under Operation Triton had quietly begun to reduce their patrolling activities: M. Tazzioli, ‘Border Displacements: Challenging the Politics of Rescue Between Mare Nostrum and Triton’  (2016) 10 Migration Studies 1, 2.

[227] See Chapter 3.3 of this essay.

[228] L. Gabrielli, ‘Securitisation of Migration and Human Rights: Frictions at the Southern EU Borders and Beyond’ (2014) 16 Urban People/Lidé Mesta 311, 313-314.

[229] See e.g. the Eurosur Regulation: European Council, 2013b. Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur). European Council, 2013c. 24/25 October 2013 conclusions.

[230] Ibid. Eurosur Regulation, Article 1. Emphasis added. For how it has contributed to border securitisation see: J. Rijpma, M. Vermeulen, ‘EUROSUR: Saving Lives or Building Borders? (2014) 24 European Security 454.

[231] Frontex has been tasked with its development and operation: European Scrutiny Committee, Fifty-Seventh Report – Establishing a European Border Surveillance System (HC 2012-13, 342-xxi) [13]

[232] Frontex would be renamed a European Border and Coast Guard Agency: European Commission, ‘Communication From The Commission To The European Parliament And The Council: A European Border And Coast Guard And Effective Management Of Europe’s External Borders’ (ec.europa.eu, 2015) <https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-673-EN-F1-1.PDF> accessed 4 February 2016.

[233] S. Peers, ‘The Reform Of Frontex: Saving Schengen At Refugees’ Expense?’ <http://eulawanalysis.blogspot.com/2015/12/the-reform-of-frontex-saving-schengen.html> accessed 2 February 2016.

[234] S. Keller et al., MIGREUROP, ‘Frontex Agency: Which Guarantees for Human Rights?’ (2011), 10-11.

[235] Human Rights Watch, ‘The EU’S Dirty Hands’ (2011) <https://www.hrw.org/report/2011/09/21/eus-dirty-hands/frontex-involvement-ill-treatment-migrant-detainees-greece> accessed 6 February 2016.

[236] Council Regulation (EU) 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ L189/93).

[237] J. Rijpma, M. Vermeulen, ‘EUROSUR: Saving Lives or Building Borders? European Security 24 (2014) 454, 468.

[238] For a legal critique of this see: S. Carrera, L. den Hertog, J. Parkin, ‘The Peculiar of EU Home Affairs Agencies in Migration Control: Beyond Accountability Versus Autonomy’ (2013) 15 European Journal of Migration and Law, 337.

[239] Council Regulation (EU) 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ L189/93, Article 26(a) and (n 230) 22.

[240] (n. 141) 218.

[241] (n. 216)

[242] (n. 141) 217, 254.

[243] See chapter 3.1.3.

[244] Frontex, ‘Frontex Is Not Involved In Diversion Activities To Libya’ (2009) <http://frontex.europa.eu/newsroom/news_releases/art70.html> accessed 25 January 2016.

[245] L.M. Langford, Interview with Hugo Brady, ‘Telephone Interview With Hugo Brady, Senior Research Fellow, Centre For European Reform’ (2012).

[246] E. Bierdel, M. Lakitsch, “Flight and Migration: From Limits, Fears and Future Prospects” (Münster: Lit Verlag, 2014) 45

[247] Frontex, Frontex Fundamental Rights Strategy (2011). Available at: http://frontex.europa.eu/assets/Publications/General/Frontex_Fundamental_Rights_Strategy.pdf accessed 18 January 2016.

[248] Ibid. the preamble states, for example, that “Frontex considers that respect and promotion of fundamental rights are unconditional and integral components of effective integrated border management”.

[249] See e.g. The Regulation has been praised for its enshrinement of human rights: V. Mitsilegas “The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law” (Springer, 2015) 20-21.

[250] G. Campesi, ‘Frontex, the Euro-Mediterranean Border and the Paradoxes of Humanitarian Rhetoric’ (2014) 3 South-East Journal of Political Science, 126, 131

[251] V. Mitsilgas, ‘Immigration Control in an Era of Globalisation: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 Indiana Journal of Global Legal Studies 3, 44.

[252] (n. 239) Preamble, Recital 2.

[253] ibid. Article 10(1), 10(1)(c).

[254] See: International Maritime Organisation, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, 22 January 2009, FAL 3/Circ194.

[255] (n. 239) Article 10(1)(c). Unless the measures undertaken in their territorial sea zone are expressly authorised Note that the UK and Ireland are not bound by this Regulation: Preamble, recital 25 and 26.

[256] Through which the port of disembarkation, nor the nationality of the ship, is relevant in an assessment of responsibility. Rather, it entails a fair distribution of refugees among MSs.

[257] UNHCR, ‘Expert Meeting on Refugees and Asylum-Seekers in Distress at Sea – how best to respond?’ (2012) 24 International Journal of Refugee Law 485, 493-495.

[258] E. Parisciani, ‘Search and Rescue Operations in the Mediterranean Sea and Access to Asylum: Another ‘Dublin’? (2015) 29 Immigration, Asylum and Nationality Law  158, 166. Parisciani also raises the interesting prospect that this provision may deter MSs from requesting assistance from Frontex, thereby worsening the humanitarian situation as SAR will be less effective.

[259] M. den Heijer ‘Frontex and the Shifting Approaches to Boat Migration in the European Union’ in ‘Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices’ ed. R. Zaiotti (Routledge, 2016), 54

[260] (n. 239) Article 4. Especially as the Regulation ignores MSs’ obligation to determine whether the state of disembarkation provides sufficient domestic legal guarantees against arbitrary indirect refoulement. See: B. Miltner, ‘The Mediterranean Migration: A Clash of titans’ Obligations’ (2015) 12 The Brown Journal of World Affairs 213, 220.

[261] ibid. Article 12(1)(a)-(c). RABITS are Border Guard Teams, the deployment of which Frontex are responsible: Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers.

[262] A. Baldaccini ‘Extraterritorial border controls in the EU: The role of Frontex in operations at sea’ “In Extraterritorial immigration control: Legal challenges” eds. B. Ryan, V. Mitsilegas (Martinus Nijhoff, 2010) 235.

[263] Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, Article 4(2).

[264] Unless faced with an exceptional situation substantially affecting the discharge of national tasks: ibid. Article 4(3).

[265] M. Ventrella, ‘Recognising Effective Legal Protection to People Smuggled at Sea, by reviewing the EU Legal Framework on Human Trafficking and Solidarity between Member States’ (2015) 3 Social Inclusion 76, 80.

[266] (n. 259) 54.

[267] A. Fischer-Lescano, T, Löhr, T. Tohidipur ‘Border Controls at Sea: Requirements under International Rights and Refugee Law’ (2009) 21 International Journal of Refugee Law 256, 282.

[268] See e.g. UNHCR Agenda for Protection, UN Doc. A/AC.96/965/Add. 1, 26 June 2002, available at: http://www.refworld.org/docid/3d4fd0266.html > accessed 3 February 2016.

[269] V. Türk ‘Envisioning a Common Asylum System Turk’, Forced Migration Review (2016) 57, 57.

[270] R. Williams, ‘Beyond Dublin – A Discussion Paper for the Greens/EFA in the European Parliament’ (2015) 13.

[271] (n. 89) 197.

[272] S. Castles, “Why Migration Policies Fail” (2004) 27 Ethic and Racial Studies 205, 205.

[273] See similarly: (n. 269)

[274] S. Carrera, D. Gros and E. Guild ‘What Priorities for the New European Agenda on Migration’ (2015), CEPS, available at: https://www.ceps.eu/system/files/MigrationPriorities.pdf <accessed February 28 2016>

[275] This was also the criteria used in order to distribute refugees from Germany in 1992, when Germany’s asylum applications peaked at 460,000: Thielemann E, ‘Between Interests and Norms: Explaining Burden‐Sharing in the European Union’ (2003) 16 International Journal of Refugee Studies 253, 260.

[276] C Roos, G Orsini ‘How to Reconcile the EU Border Paradox? The Concurrence of Refugee Reception and Deterrence’ (2015) Institute for European Studies Policy Brief, available at: http://www.ies.be/files/4:2015%20Policy%20Brief.pdf > accessed January 29 2016

[277] UNHCR, ‘Refugees Without An Asylum Country – EXCOM Conclusions, 16 October 1979’ (1979) <http://www.unhcr.org/3ae68c960.html>

[278] See chapter 3.2 of this essay.

[279] The notion that a ‘cooperative climate’ breed’s trust: (n. 178).

[280] S. Peers, N. Rogers EU Immigration and Asylum Law text and Commentary (M Mijhoff 2006) 300.

[281] See (n 149), where Merkel describes the Dublin Regulation as ‘obsolete’.

[282] G.S. Goodwin-Gill, ‘Legal and Practical Issues Raised by the Movement of People Across the Mediterranean’ (2016) 51 Forced Migration Review 82, 84.

[283] V. Chetail, P. de Bruckyer, F. Maiani, ‘Reforming the Common European Asylum System: The New European Refugee Law’ (Brill – Nijhoff, 2016) 191.

[284] European Commission “Asylum, Migration And Integration Fund (AMIF)” (2014) <http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/index_en.htm> accessed 26 January 2016.

[285] Under the Emergency Refugee Fund.European Commission, ‘European Refugee Fund 2008-2013’ (2008), 4. <http://europa.eu/rapid/press-release_IP-08-1658_en.htm> accessed 29 February 2016.

[286] The United Kingdom, for example: European Scrutiny Committee, 1st Report of Session (HC 2015-16-342-i)

[287] Ingrid Boccardi, Europe & Refugees Towards An EU Asylum Policy (Kluwer 2002), 172.

[288] A. Raspotnik, M. Jacob and L. Ventura, Tepsa Brief: The Issue Of Solidarity In The European Union (Tepsa 2012), 4. <http://www.tepsa.eu/download/TEPSA%20Policy%20Paper%20The%20issue%20of%20solidarity%20in%20the%20European%20Union.pdf> accessed 26 January 2016.

[289] Although other travel documents, such as a passport, will be necessary also, which is why the employment of illegal means of entry will not be eradicated completely: A. Wayne, P.L. Martin, J.F. Hollifield, “Controlling Immigration: A Global Perspective” (1995) 251.

[290] (n. 12) 136

[291] Distributive justice entails that states have the same compelling duty towards non-citizens as they have towards their own citizens: T. K-Amir, T. Spijkerboer, ‘On the Morality and Legality of Border: Border Policies and Asylum Seekers’ Harvard Human Rights Journal 26 (2013) 1, 9. This is also an important notion in light of comments made, particularly by Hungary, that it did not want to grant asylum to Muslim refugees: UNHCR, ‘It’s risky to come to Europe, Hungary’s PM tells migrants’ (Unhcr.org, 2015) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55e940a95> accessed 6 March 2016.

[292] (n. 12)

[293] Although the number should drop as carrier sanctions scrapped and visa restrictions and lifted: V. Türk ‘Envisioning a Common Asylum System Turk’, (2016) 51 Forced Migration Review, 57, 59.

[294] (n. 141) 252.

[295] The victim could aim for full jurisdiction litigation, as provided for by Article 268 and 340(2) TFEU on non-contractual responsibility of the EU.

[296] (n. 233).

[297] Duncan Robinson, ‘How The EU Plans To Overhaul ‘Dublin Regulation’ On Asylum Claims – FT.Com’ (Financial Times, 2016) <http://www.ft.com/cms/s/2/d08dc262-bed1-11e5-9fdb-87b8d15baec2.html#axzz41PoTqbAu> accessed 9 February 2016.

[298] Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, available at: http://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32015D1523&qid=1443522997996&from=EN; and Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, available at: http://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32015D1601&qid=1443522997996&from=EN.

[299] A. Dimitriadi, ‘Burden Sharing, Where Art Thou?’ (Ecfr.eu, 2016) <http://www.ecfr.eu/article/commentary_burden_sharing_where_art_thou5003> accessed 11 February 2016.

[300] European Commission, Member States’ Support to Emergency Relocation Mechanism, 5 January 2016, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf.

[301] UNHCR, ‘Building On The Lessons Learned To Make The Relocation Schemes Work More Effectively’ (unhcr.org, 2016) <http://www.unhcr.org/569fad556.pdf> accessed 1 March 2016, 1.

[302] Slovakia v Council C-643/15

[303] Hungary v Council C-647/15

[304] European Commission, “Commission proposes temporary suspension of Sweden’s obligations under the EU relocation mechanism” (2015)< http://europa.eu/rapid/press-release_IP-15-6329_en.htm>

[305] Maurice E, ‘Sweden To Tap Hungary’s EU Relocation Quota’ (Euobserver.com, 2015) <https://euobserver.com/migration/130961>

[306] Under Protocol 21 and 22 to the TFEU, the United Kingdom, along with Ireland and Denmark “shall” not partake in the adoption by the Council of the proposed measures pursuant to Title V TFEU. The United Kingdom and Ireland had the opportunity of ‘opting-in’, however.

[307] S. Peers, ‘The Dublin Regulation: Is The End Nigh? Where Should Unaccompanied Children Apply For Asylum?’ <http://eulawanalysis.blogspot.co.uk/2016/01/the-dublin-regulation-is-end-nigh-where.html> accessed 9 February 2016.

[308] F. Heisbourg, ‘The Strategic Implications of the Syrian Refugee Crisis’ 57 (2016) 7, 9.

[309] Syrian Center for Policy Research, ‘Confronting Fragmentation: Impact Of Syrian Crisis Report’ (2016) 61 <http://SCPR-report-Confronting-fragmentation-2015-EN.pdf> accessed 7 March 2016.

[310] ibid. 7

[311] (n. 4)

[312] Spiegel Online International, ‘A Continent Adrift: Juncker Proposes Fixes To EU’s Broken Asylum Policies’ (Speigel Online, 2015) <http://www.spiegel.de/international/europe/refugee-crisis-in-europe-exposes-asylum-policy-shortcomings-a-1051481.html> accessed 7 March 2016.

[313] ibid.

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