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Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics

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The Principle of Solidarity

Part of the book series: Global Europe: Legal and Policy Issues of the EU’s External Action ((GELPIEEA,volume 2))

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Abstract

The failure of the EU and its Member States to adequately respond to increased refugee movements since 2015, has caused disagreement on how the principle of solidarity and fair sharing of responsibility should be given effect in the context of a reformed European policy on migration. In September 2020, the European Commission proposed the new Pact on Migration and Asylum which was meant to promote a new pragmatic approach to solidarity for achieving ‘a fair, workable and sustainable EU migration system’. This chapter seeks to interrogate this new approach to solidarity with a view to establishing the extent to which it provides a viable remedy to current and future challenges for refugee protection in Europe. The main proposition is that the conception of pragmatism promoted in the Pact emphasizes excessive formalism through calculative rules and complex procedures sidestepping questions of political organization, community and belonging that solidarity has squarely brought to the table in 2015. A re-imagining of solidarity in the CEAS as a particular form of conducting regional and global politics is suggested as the way forward.

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Notes

  1. 1.

    See CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v. Council., Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618 (CJEU, Slovak Republic and Hungary v. Council).

  2. 2.

    See e.g. AIDA 2015.

  3. 3.

    European Council on Refugees and Exiles (ECRE) (2020) Greece: Transfers to Improvised Tent Camp has Begun, Thousands Sleeping Rough, EU to Co-manage New Reception Structure in Lesbos. https://ecre.org/greece-transfers-to-improvised-tent-camp-has-begun-thousands-sleeping-rough-eu-to-co-manage-new-reception-structure-in-lesbos/. Accessed 12 September 2022; and Council of Europe (2019) Greece must urgently transfer asylum seekers from the Aegean islands and improve living conditions in reception facilities. https://www.coe.int/en/web/commissioner/-/greece-must-urgently-transfer-asylum-seekers-from-the-aegean-islands-and-improve-living-conditions-in-reception-facilities. Accessed 12 September 2022.

  4. 4.

    European Commission (2020) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM(2020) 609 final (Communication on a new Pact ), p. 2.

  5. 5.

    European Commission (2020) Press statement by President von der Leyen on the New Pact on Migration and Asylum. https://ec.europa.eu/commission/presscorner/detail/en/statement_20_1727. Accessed 12 September 2022 (Press statement by President Von der Leyen).

  6. 6.

    Communication on a new Pact (see n. 4 above), p. 4.

  7. 7.

    See European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] COM (2020) 610 final (Proposal for a RAMM), p. 11. See also Article 4 ‘principle of integrated policy-making’ of the Proposal for a RAMM.

  8. 8.

    See the Pact, Article 78(1)(g) and Article 80.

  9. 9.

    The term ‘mixed’ bears a negative connotation pointing to persons unworthy of protection. See Proposal for a RAMM, pp. 10–11.

  10. 10.

    See Foster 2016 and Achiume 2019, pp. 1512–1513.

  11. 11.

    Moreno-Lax 2014, pp. 146–167.

  12. 12.

    European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM (2020) 612 final.

  13. 13.

    See, among others, Costello 2020.

  14. 14.

    Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (recast), OJ L 180 (Dublin III Regulation) Article 13; Council Regulation (EC) No 343/2003 of 18 February 2003, OJ L 50, (Dublin II Regulation) Article 10; Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, entered into force 1 September 1997, OJ C 254 (Dublin Convention) Article 6.

  15. 15.

    See, among others, Thielemann et al 2010 and Mouzourakis 2014.

  16. 16.

    In fact, the Communication on a new Pact reinforces the responsibility of the Member States located at the borders by significantly limiting existing possibilities for cessation or shift of responsibility and by extending the responsibility based on the first entry criterion. For a more detailed analysis, see Brouwer et al 2021.

  17. 17.

    On the need to consider ‘“corrective” burden-sharing mechanisms that are complementary to the Dublin system’, see Commission of the European Communities (2007) Green Paper on the Future Common European Asylum System, COM (2007) 301 final p. 11.

  18. 18.

    See e.g. Council Decision (EC) No 2000/596 of 28 September 2000 establishing a European Refugee Fund, OJ L 252, Article 1.

  19. 19.

    On the role of the European Union Agency for Asylum (EUAA) and FRONTEX, see Chap. 11 by Gkliati and Nicolosi in this volume.

  20. 20.

    On the necessity for external solidarity through resettlement and capacity building, see Commission of the European Communities (2008) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on a Policy Plan on Asylum: An Integrated Approach to Protection across the EU, COM (2008) 360 final.

  21. 21.

    Commission of the European Communities (2000) Commission staff working paper, Revisiting the Dublin Convention: developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States, SEC (2000) 522, p. 12.

  22. 22.

    European Commission (2016) Proposal for a Regulation of the European Parliament and of the Council 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 (recast), COM (2016) 0270 final - 2016/0133 (COD).

  23. 23.

    See Karageorgiou and Spijkerboer 2019.

  24. 24.

    Ibid.; Proposal for a RAMM, p. 11.

  25. 25.

    Ibid., Communication on a New Pact, p. 5.

  26. 26.

    Ibid., Press statement by President von der Leyen.

  27. 27.

    Ibid., Proposal for a RAMM Part IV Solidarity, Articles 45–60.

  28. 28.

    Ibid., Articles 47–49.

  29. 29.

    Ibid., Articles 50–53.

  30. 30.

    European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM (2020) 613 final.

  31. 31.

    A number of EU countries, including the Visegrád Group, have opposed the proposal for a corrective allocation mechanism—automatically triggered once a state was reported to receive applications exceeding 150% of its capacity level—as encroaching ‘too far on the competences reserved for the Member States in the areas of security policy and social rights, see e.g. Interparliamentary Committee Meeting organized by the Committee on Civil Liberties, Justice and Home Affairs on the Third Reform of the Common European Asylum System—Up for the Challenge—Summaries of Reasoned Opinions and Contributions of National Parliaments, 28 Feb 2017. https://www.europarl.europa.eu/cmsdata/226588/Summaries_of_reasoned_opinions_and_contributions.pdf. Accessed 1 October 2022, pp. 4–6. In addition, the proposal for a mandatory solidarity system was challenged by those countries as incompatible with the principle of proportionality and necessity, see CJEU, Slovakia and Hungary v Council. See also the subsequent judgement by the CJEU declaring that Poland, Hungary and the Czech Republic have failed to fulfil their obligations under EU law, Joined Cases C-715/17, C-718/17 and C-719/17 Commission v Poland, Hungary and the Czech Republic, Judgment, 2 April 2020, ECLI:EU:C:2020:257.

  32. 32.

    Karageorgiou 2020, p. VI.

  33. 33.

    Human rights scholars have criticized the use of flexibility by European states in earlier situations of mass refugee movements (former Yugoslavia) as a way to shift the focus from refugee law standards to ‘an uncertain realm of political bargaining and humanitarian assistance’. See Fitzpatrick 2000, p. 305 and Durieux 2021, p. 687. For this chapter, political flexibility is not synonymous to the exercise of discretionary power unconstrained by rule or certainty but rather as a tool which encourages a consideration of context, causes and remedies of a particular asylum problem in practice. On this, see Kennedy 1986, p. 7.

  34. 34.

    Durieux 2013, pp. 225, 251.

  35. 35.

    Ibid., p. 235.

  36. 36.

    See the proposal for a RAMM and the suggested sanctions to non-compliant asylum-seekers.

  37. 37.

    1951 Convention Relating to the Status of Refugees, entered into force 22 April 1954, 189 UNTS 150.

  38. 38.

    Durieux 2013, p. 252, emphasis in the original.

  39. 39.

    Kennedy 1986.

  40. 40.

    Solidarity’s long history—which can be traced back to antiquity, Roman civil law, Christianity and the French Revolution—speaks of its context-dependent character; far from being a homogeneous idea travelling through time, solidarity’s meaning, scope and reach depend upon the material circumstances in which it occurs. What seems not to be challenged, though, is that in all its appearances solidarity refers to a ‘community’. According to Scholtz ‘Solidarity is used to describe a particular type of community and it is used to describe the bonds of any community.’ Scholz 2008, p. 17. Thus, rather than offering a flat definition, this chapter approaches solidarity as a generic notion that refers to all legal discourses, ideologies, structures of argument, strategies, and projects whereby different actors in the asylum context, including EU institutions, states, and courts defend their community claim and oppose it to others. For a detailed analysis, see Karageorgiou 2018.

  41. 41.

    Lombardi 2021, p. 60.

  42. 42.

    Gibney 2007.

  43. 43.

    European Commission (2020) A fresh start on migration: Building confidence and striking a new balance between responsibility and solidarity. https://ec.europa.eu/commission/presscorner/detail/en/IP_20_1706. Accessed 12 September 2022.

  44. 44.

    Karageorgiou and Noll 2022.

  45. 45.

    Craig and Fletcher 2005.

  46. 46.

    Stjerno 2005, p. 289.

  47. 47.

    See Karageorgiou 2021.

  48. 48.

    Banakar 2018, p. 2.

  49. 49.

    On the idea of thinking pragmatically about solidarity as a particular form of conducting regional and global politics I draw inspiration from Ben Golder (Golder 2016) and Florian Hoffmann (Hoffmann 2008) and their work on pragmatism in human rights.

  50. 50.

    Benhabib 2015.

  51. 51.

    See Cotterrell 2013 and Mason 2000.

  52. 52.

    Habermas et al. 1998.

  53. 53.

    Pensky 2008, p. 11.

  54. 54.

    Ibid., p. 131.

  55. 55.

    Scholz 2014, pp. 49–67.

  56. 56.

    On this, see Walzer 1983.

  57. 57.

    Gould 1983.

  58. 58.

    Sturm 1998, p. 8.

  59. 59.

    A bottom-up approach to solidarity is gaining currency in many EU countries, promoted by localities and municipalities.

  60. 60.

    Of relevance here is the notion of ‘acts of citizenship’, which has been employed to register the political subjectivity of those formally excluded. See Isin 2008, pp. 36–37, and Zhang 2020, pp. 330–331, 338.

  61. 61.

    Drawing on Benhabib’s notion of ‘jurisgenerative politics’, a reimagining of solidarity in the CEAS would entail consideration of both the law and the political praxis (actions, demands of refugees themselves). See Benhabib and Nathwani 2021, pp. 130–131.

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  1. Faculty of Law, Lund University, Lund, Sweden

    Eleni Karageorgiou

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    Eva Kassoti

  2. T.M.C. Asser Institute, The Hague, The Netherlands

    Narin Idriz

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Karageorgiou, E. (2023). Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics. In: Kassoti, E., Idriz, N. (eds) The Principle of Solidarity. Global Europe: Legal and Policy Issues of the EU’s External Action, vol 2. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-575-1_9

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