Refugees, EU Citizenship and the Common European Asylum System A Normative Dilemma for EU Integration

Abstract

This article argues that the practical difficulties and normative dilemmas at stake in the European refugee crisis as a crisis of EU integration extend beyond refugee policies into what we may call ‘the citizenship regime’ of the European Union in ways that are consequential for refugees, member states, and the European Union. It advances arguments for the relatively rapid access to citizenship of refugees, demonstrates that this norm has at least some acknowledgment in the policies of EU member states and considers what further differentiation of refugees from other classes of migrant might be a part of developing a just and legitimate Common European Asylum Regime. It argues that there are some reasons to favour a CEAS in which refugees receive EU citizenship prior to national citizenship in a member state.

That the “refugee crisis” in Europe is also crisis of European integration is widely recognized. One reason that this matters is that, as Rainer Bauböck notes, ‘the European Union offers the best conditions that can be assumed under real world circumstances for an effective regional refugee protection regime’ (2017: 2) and the failure of EU to respond adequately to the challenge posed by mass refugee flows to Europe has troubling implications for the future prospects of both refugee protection envisaged by the 2016 New York Declaration and the project of the EU. It has been cogently argued that the sources of this EU failure lie in ‘in institutional failures to Europeanize refugee policies’ (Bauböck 2017: 2). This article argues that although adequate responses to the conjoined crises of refugee protection and EU integration do require that the Europeanisation of refugee policies through the reform and strengthening of the Common European Asylum System, the practical difficulties and normative dilemmas at stake in these conjoined crises extend beyond refugee policies into what we may call ‘the citizenship regime’ of the European Union in ways that are consequential for refugees, member states, and the European Union.

The motivation for this article arises from two commonplace observations. The first is that EU citizenship is a derivative status, access to which is governed by acquisition of the national citizenship of a member state. The second is that there is a strong normative argument (and one that is reflected in the practice of EU states) that, in protracted refugee contexts, refugees should be able to acquire the national citizenship of the state in which they enjoy asylum. The conjunction of these observations has two immediate implications under the current citizenship regime of the EU. First, the EU rules governing refugee protection are likely to have significant consequences for the future composition of the citizenry of its member states. This point, as we will see, matters particularly for the issue of fair responsibility-sharing by EU member states. Second, where refugees enjoy asylum governs when and under what conditions they can acquire EU citizenship and the free movement rights that are integral to it. This fact, I claim, generates a normative problem since, precisely because refugees are subject to a Common European Asylum System, such differential access to EU citizenship is a form of unequal treatment that is prima facie unjust. If we have good reasons to reject such differential treatment (as I will argue), this sharpens the issue of EU integration posed by the refugee crisis because it raises the question of what kind of EU ‘citizenship regime’ would be needed to do justice to refugees and what implications this has for the relationship of the EU and its member states.

To develop this argument, I begin by providing an argument for the norm that refugees should enjoy relatively rapid access to membership in the state of asylum (Section 1) before turning to a descriptive overview of the rules governing acquisition of national citizenship by refugees in EU member states (Section 2) to show that, to a reasonable extent, this norm is acknowledged by these states. I then turn to identifying the form and failings of the Common European Asylum System (CEAS) and sketching normative arguments for the deeper Europeanization of refugee policies and its extension in the ‘citizenship regime’ in order to specify desiderata for a just and legitimate CEAS (Section 3). The final stage of my argument considers two different ways of designing CEAS and their implications for the future of the EU (Section 4). It does so, in part, by returning to the argument that refugees have a normatively distinctive claim to rapid access to citizenship and showing how this might matter for engaging the issue of EU integration raised by the project of CEAS.

1 Refugees and Access to Citizenship

The case for refugees to enjoy relatively speedy access to membership of the state of asylum has been advanced by Price (2009) and in my own prior work (Owen 2013). Price’s argument is advanced on the basis of a normative reconstruction and defence of the current refugee regime as one in which asylum is conceived as surrogate membership of a state. Viewed thus, Price argues, we should acknowledge that there is good reason to adopt the claim that refugees should be granted rapid access to citizenship of the state of asylum because refugees are people who

not only face a threat to their bodily integrity or liberty; they are also effectively expelled from their political communities. They are not only victims, but also exiles. Asylum responds not only to victims’ need for protection, but also to their need for political standing, by extending membership in a new political community. (2009: 248)

In response to this argument, David Miller contends that ‘it seems wrong to single out those who are escaping persecution and grant them permanent residence immediately on the grounds that having arrived they will all choose to identify politically with the society that takes them in’. (Miller 2016: 135–6) Price’s argument, he charges:

rests on the assumption that the causes that gave rise to persecution are such that the refugee will never be in a position to return in safety, whether because these causes themselves persist or because he has been mentally scarred by the experience and would experience psychological hardship if forced to return. Although this may be true in some cases, there will be other cases in which a change of regime means that those who have fled are more than willing to go back and pick up the threads of their previous lives.’ (2016: 133)

This disagreement draws attention to the point that while the international refugee regime addresses the civil, social and economic rights of refugees, it does not directly address the political rights of refugees. The 1951 Refugee Convention acknowledges the fact that, in fleeing their state of nationality, refugees become ‘politically stateless’ in a global political society in which political standing is organised through effective possession of political membership of a state and Art.34 calls on states to ‘facilitate the assimilation and naturalization of refugees (and stateless persons) to the fullest possible extent’ but it does not require that refugees be granted political standing or rights.

We can understand Price’s argument as motivated in part by the thought that it is integral to what he takes to be the expressive act performed by asylum to re-assert, in its condemnation of the persecuting state, the equal political standing of the refugee as a member of global political society. However, the point raised by Miller’s criticism remains applicable. If we are to understand asylum as ‘surrogate membership’, why should a grant of ‘temporary citizenship’ not suffice to meet this requirement? A temporary status that persists until the refugee is able to return to their state of nationality or until they have resided in the state of asylum for a sufficient period to be entitled to apply for permanent citizenship? Alternatively, as Ziegler (2017) has recently argued, this could be addressed by granting non-citizen voting rights (as well as secure travel and return rights) to refugees.

My own view (Owen 2013) supports the claim to relatively rapid naturalisation for refugees without being committed to Price’s more controversial views on asylum. I start from the point that in contrast to other immigrants, refugees have lost the standing as members of global political society that they would normally enjoy in virtue of effective membership of a state: they are de facto stateless. More specifically, in virtue of the fact that they are effectively unable to exercise their right to diplomatic protection and their right of return, refugees are highly vulnerable to power of the state of asylum. The state of asylum stands in loco civitatis to them (Owen 2016) and must reflect this standing in its treatment of their claims. The state, then, has a special responsibility to the refugees it recognizes in virtue of both the wrong they have suffered and the vulnerability to the state of asylum that is a product of that wrong.¹ However, it is also a pervasive feature of refugee crises that their time-horizon is liable to be indeterminate – and the consequent position of refugees is that of persons who are ‘situated in a condition of social and civic limbo, unable to commit to building a new life because they may be returned to the old, unable to commit to the old life because they may never be able to take it up once more’ (Owen 2013: 334). To be a refugee is, to a very significant degree, to lack an ability that is taken for granted by citizens who conduct their lives against the background of a right to secure residence of a state, namely, the ability to plan their futures, to make choices about the medium-term or long-term direction of their lives. The point here is not that such choice-making is not constrained by circumstance, but that the kinds of choices and, hence, plans available to an agent are significantly dependent on the institutions, practices and relationships that compose the social context that they inhabit. Everyday social contexts shape the horizon within which persons coherently conceive of, and act to realize, their future selves – and to inhabit a condition in which the social conditions of one’s agency are constitutively open to being ruptured through repatriation is to lack a secure horizon in terms of which to engage in the activity of planning and shaping one’s future. The cost of adopting ‘temporary citizenship’ or ‘non-citizen voting rights’ as a solution for the lack of political standing of refugees is that, unlike rapid access to membership of the state of asylum, they leave the problem of inhabiting civic limbo in place. This is a particularly significant issue for refugees because, as Matthew Gibney notes:

To be a refugee is not simply to be an individual who has lost the protection of her basic rights; it is to be someone deprived of her social world. It is to be someone who has been displaced from the communities, associations, relationships and cultural context that have shaped one’s identity and around which one’s life plan has hitherto been organised. (Gibney 2015: 459)

Against the background of this normal feature of refugee experience, the issue of securing conditions of rebuilding a social life, of enabling autonomy, have a specific normative significance that the state standing in loco civitatis (Owen 2016) has the responsibility to address – and this is best accomplished by providing relatively rapid access to citizenship with all the relevant securities that this status brings.² This is, to a non-trivial extent, also a responsibility that is acknowledged by the member states of the EU.

2 Refugees and Naturalisation in EU Member States

Jus domicilli is available in all EU member states and ordinary naturalisation is regulated primarily through residential time plus a combination of language, character and finance conditions which may be more or less demanding. To demonstrate the acknowledgment by EU states, even if only to a limited extent, of the norm that refugees should enjoy relatively rapid access to membership, I draw on a range of data All the data deployed below is drawn from the GLOBCIT (2017) database (for the full table see Appendix 1).³

With some exceptions (Belgium, Croatia, Germany, Netherlands, Poland, Portugal, Spain), ordinary naturalisation is primarily viewed as discretionary rather than as an entitlement. The temporal dimension of these policies runs thus:

Duration of residence (in years)	Countries
3	Poland
5	Belgium, Bulgaria, Cyprus, Czech Republic, Finland, France, Ireland, Latvia, Malta, Netherlands, Sweden, U.K.
6	Portugal
7	Greece, Luxembourg
8	Croatia, Estonia, Germany, Hungary, Romania, Slovakia
9	Denmark
10	Austria, Italy, Lithuania, Slovenia, Spain.

The mean is 6.79 years; the median is 6.5 years; the mode is 5 years. It should be noted that the degree of demandingness of other conditions – and the presence or absence of citizenship tests - do not vary in any simple relationship to the different durations. A second point to note is that that some EU states normally require renunciation of prior nationality: Austria, Bulgaria, Croatia, Estonia, Germany, Latvia, Lithuania, Netherlands, Slovenia, Spain.

However, 20 of the 28 Member States have special provision for refugees⁴: Austria, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Netherlands, Poland, Romania, Slovakia, Slovenia, Spain, Sweden. Given that the application of these rules is conditional on being recognized as a refugee by a member state and that recognition rates also vary significantly, we should not draw firm conclusions about the relative strength or weakness of an asylum seeker’s access to citizenship in particular members from this fact alone. But three key points emerge from an analysis of ordinary naturalisation and refugee naturalisation procedures and conditions:

• 1. There is a general acknowledgment among EU members states that normally require renunciation of prior nationality that this is not justified in the case of refugees.

• 2. There is a significant tendency to reduce the temporal duration of residency in the state required for naturalisation in the case of refugees with 16 of the 28 states doing so and this tendency is most strongly marked in states that have longer than average duration requirements for ordinary naturalisation. (Of the EU states that require greater than the median and mean for ordinary naturalisation, only Croatia and Estonia do not make distinct provision for refugees; of those that do make such provision, all except Austria⁵ and Germany reduce the durational constraint. Of the states that require 5 or less years for ordinary naturalisation, a significant minority composed of Bulgaria, Czech Republic, France, Ireland and Sweden reduce or remove the explicit durational constraints, while a slim majority composed of Belgium, Cyprus, Finland, Latvia, Malta, Netherlands, Portugal and U.K. do not.)

• 3. Whereas for ordinary naturalisation, 14 out of 28 states require 6 years or less residence for naturalisation; in the case of refugee naturalisation, this figure increases to 21 states.

The wide variation in the ordinary naturalisation conditions for EU member states is, thus, significantly reduced in the case of refugees in a way that recognizes the case for relatively rapid or accelerated access to citizens although non-trivial variations of duration and other conditions remain. I’ll take up the normative significance of these points over the next two section of this article.

3 Dilemmas of the Common European Asylum System

To be a member of the EU is to be subject both to rules that are agreed under legitimate norms of decision-making within this polity and to a duty of solidarity. This latter point is a non-trivial one. ‘Solidarity’ has been acknowledged as a basic value of the EU in its founding and re-founding documents from the Preamble to the Treaty Establishing the European Coal and Steel Community Treaty (1951) to the Single European Act (1986), the Maastricht Treaty (1992) and the Treaty of Lisbon (2006). The last of these documents explicitly places solidarity as a value that should govern both relations between member states and between EU citizens. Sangiovanni (2013) argues that solidarity names a special kind of associative obligation triggered by (among other conditions) joint action. On this account, solidarity binds agents together through joint and reciprocal action in the pursuit of a goal or set of goals – and in the case of the EU, these joint goals can be specified as a significant, if mediated, set of collective goods (including a single market, reliable system of supranational law, internal mobility, and regional stability) which the EU aims to provide. The fair return that member states and European citizens owe one another can therefore be conceived as a form of specifically cooperative solidarity (Sangiovanni 2013). One such goal has been the development of the Common European Asylum System (CEAS). As Rainer Baübock observes, EU member states

are already part of a permanent coalition whose members have subscribed to a principle of sincere co-operation with regard to the tasks spelled out in the Treaty on European Union (TEU Art. 4.3) and a principle of solidarity and fair sharing of responsibilities, including its financial implications, between the Member States in matters of border checks, migration and asylum (TFEU Art. 80). Already the 1999 Tampere Council conclusions invoked solidarity in building a Common European Asylum System. Council Directive 2001/55/EC (Temporary Protection Directive) committed Member States to a collective response in case of considerable flows of asylum seekers. (2017: 10)

Moreover, as Baübock also notes, there are several further reasons why the EU should be seen as bound by a duty of co-operation in respect of refugee flows to its territory. Member states

participate jointly and equally in supranational executive, legislative and judicial institutions endowed with significant power, which greatly facilitates the task of co-ordinating efforts to build a fair scheme of burden-sharing … they are geographic neighbours in a regional union that includes multiple alternative destinations for refugees from the same origin travelling on the same routes so that it seems natural to regard the EU as being jointly responsible for refugees in its vicinity instead of assigning this task to individual states of first EU entry. … one of the more advanced areas of co-operation in the EU is with regard to external border control of the Schengen area, where there is an EU wide system of data exchange (the Schengen Information System) and an EU agency (FRONTEX) charged not only with co-ordination tasks but also operational ones, including rescue at sea and return of irregular migrants. Asylum seekers who turn up at the external borders make themselves therefore not merely vulnerable to decisions by the state of arrival, but also by the EU at large and all its Member States. It seems therefore obvious that these states share a duty of co-operation with regard to refugee admission. (2017: 10-11)⁶

The CEAS is the vehicle through which this duty of cooperation is given institutional expression. Such co-operation did not materialize; on the contrary, the refugee flows into Europe induced a crisis of European integration. Why? One key reason that can be adduced to explain this failure is a structural feature of CEAS.

A key reason for the failure of this regime lay in Dublin III Regulation that came into force in July 2013. This required asylum seekers to apply for asylum in the first EU member state that they entered. As the EU Commission commented in 2016 in urging reform of the system:

the migratory and refugee crisis exposed significant structural weaknesses and shortcomings in the design and implementation of the European asylum system, and of the Dublin rules in particular. The current Dublin system was not designed to ensure a sustainable sharing of responsibility for applicants across the Union. This has led to situations where a limited number of individual Member States had to deal with the vast majority of asylum seekers arriving in the Union, putting the capacities of their asylum systems under strain and leading to some disregard of EU rules. (https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160504/dublin_reform_proposal_en.pdf)

The normative problem posed by the Dublin III Regulation was that it imposed a rule whose effect was to distribute responsibility disproportionately to specific states with external EU borders. In the face of the mass refugee flows of 2015, this not only placed significant strain on (and incentives for non-compliance by) the relevant states, but represented an unreasonable form of burden-shifting onto these states. This rule also represented a de facto transformation not only of the population of these states but also of their future citizenry. Given the established norm that refugees may, after a period of time, apply for citizenship of the state, and that the Syrian conflict is liable to be a protected conflict, then even though the granting of citizenship to refugees is formally discretionary in most EU states, the practical effect of the Dublin III Regulation would be to reconfigure the composition of the membership of some of its member states while leaving others relatively untouched. This point matters because, given the existing acknowledgment of the norm that even if the EU engaged in large scale resource and capacity-building transfers to the affected states in order to ensure that they were not unfairly disadvantaged in non-membership related terms, a basic form of unfairness that breaches the duty of solidarity would remain, namely, a significant unchosen future transformation of the membership of some states and not of others. The point here is that because refugees may become citizens, acknowledgment of transformation of future membership needs to be built into the understanding of a fair distribution of refugees across the EU.

Unsurprisingly, the manifestation of this structural problem also drew attention to, and may have helped further motivate, the differential norms and standards across EU member states concerning reception of asylum seekers and recognition of refugee claims that persist despite directives to the contrary. In response to these problems, the EU Commission has proposed both a change to a responsibility-sharing scheme (with distributions based primarily on GDP and population size) and development of a European Union Agency for Asylum ‘for facilitating functioning of the CEAS, for ensuring convergence in the assessment of applications for international protection across the Union, and for monitoring the operational and technical application of Union law’ (https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation package/docs/20160504/dublin_reform_proposal_en.pdf).

It is reasonable to suppose that such a reform may go some way towards addressing the issue of justice between member states of the EU, but does it go far enough, and in the right way? And what of its relationship to duties of justice to refugees? To address these questions, we should consider two points.

The first is that, In the global context, the legitimate sharing of responsibility for refugee protection can reasonably be seen as involving two stages that relate to different capacities and hence to different divisions of responsibility. The first concerns immediate refuge where the key considerations are physical access (typically a function of geographic proximity in mass refugee events), security from refoulement, and basic needs protection. The division of responsibility to address this stage can be reasonably constructed in terms of the duty of the states to which refugees immediately flee (whether by foot, road, sea or air) to provide a place of first refuge and the duty of states generally to provide, according to their abilities (and acknowledging any ‘place-based’ contribution they have made), the other resources needed to secure the basic needs of those who have fled. The second stage concerns asylum where the key concerns are those of general human rights protection, refugee inclusion, and pathways to civic integration. In the case of the EU, the focus for a responsibility-sharing scheme is the second stage. But what we may call the ‘integration capacities’ of EU states is not itself independent of the attitudes and choices of either refugees or states and their citizens. Refugees may have reason to favour either ranges of states or particular states on grounds that are intrinsic to realizing the ends of inclusion and integration. Thus, for example, refugees may have reason to favour particular states on the basis of the presence of family or friends, the language(s) they speak, the existence of a significant established diaspora from their homeland in the state, the range of opportunities it offers given their education or occupational skills, its religious composition, or a number of other factors, where refugees may order and weight such heterogeneous factors quite variously. At the same time, however, the attitudes and choices of member states also matter from the perspective of integration and states may favour particular refugees (from a common pool) on a range of grounds including some that overlap with the considerations noted above with respect to refugee choices. Given the presumption that asylum should support inclusion and integration leading to future membership of the state, there are both justice-based and prudential reasons for the EU to give normative significance to both refugee and state choices in the distribution of refugees,⁷ and to so even independent of reasons relating to respect for the moral standing of the refugee or for the state. This view is further supported by the point that ‘relocating refugees to countries where they are unwilling to go and that are unwilling to have them comes at very high political cost in terms of democratic support in the host country’ and ‘such a scheme is additionally bound to undermine general support for EU integration’ (Bauböck 2017: 13) Within the Schengen zone, this prudential point is reinforced by the political fact that recognised refugees can fairly easily relocate themselves even if not ‘permitted’ to do so.

The second point concerns the fact that asylum seekers who arrive in the territory of a member state thereby also thereby arrive in the territory of the EU and this generates a duty to refugees on the part of the EU (and not just its member states) in relation to pathways to civic integration in the EU. Recall Bauböck’s point that: ‘Asylum seekers who turn up at the external borders make themselves therefore not merely vulnerable to decisions by the state of arrival, but also by the EU at large and all its Member States.’ (2017: 11). More specifically, just as the EU has an obligation to ensure that asylum seekers are subject to common standards of reception and recognition in EU states, and that refugees are subject to common standards of protection and inclusion, it also has an obligation to ensure that refugees are subject to common standards of civic integration including access to EU citizenship. This would not be the case prior to the establishment of EU citizenship as a status derivative of national citizenship and the institution of a common asylum system that allocates refugees to particular member states. However, precisely because asylum seekers are subject to a common EU regime, those recognised as refugees in a process that is subject to EU rules and norms have a claim not to be subject to differential treatment in acquiring the status that gives them a voice in relation to the regime of governance to which they are subject. Combined with the fact that member states have reason to ensure a refugee’s relatively rapid access to naturalisation, this entails that the EU has a responsibility to support the refugee’s relatively rapid acquisition of EU citizenship (for example, by encouraging harmonization of refugee access to citizenship in member states).

The desiderata for a just and legitimate CEAS would then include the following:

• a) Fair responsibility-sharing

• b) Common standards of reception, recognition and inclusion.

• c) Acknowledgment of the normative significance of refugee and state choices

• d) Common standards of access to EU citizenship.

• e) Relatively rapid access to EU citizenship.

At the same time, it would be prudentially important for such an CEAS to be designed in a way that does not only require solidarity between member states but as far as possible supports the generation and exercise of solidarity. In the final section of this article, I consider ways of meeting these desiderata.

4 CEAS and the Future of the EU

Desiderata (a), (b) and (c) are practically interdependent in the EU context in that meeting the criteria for any of them is liable to be dependent on meeting the criteria for all of them. The EU Commission recognizes this for (a) and (b) but has thus far failed to recognize the importance of (c) – but, given open internal borders, securing (a) and sustaining (b) are importantly dependent on (c) and vice versa. On the one hand, the failure of CEAS as currently constituted can be seen as, in part, related to the failure to acknowledge state and refugee choices in ways that undermined common standards of reception and recognition. On the other hand, any future CEAS that acknowledges the significance of refugee and state choices would take the form of a “matching scheme” that distributes a common pool of refugees according, in the first instance, to set quotas. This requires that refugee recognition is based on common standards and that a reasonably fair mechanism for quota-setting can be agreed, but it also provides incentives for refugees and states to support the realization of these requirements as a way of securing moral significance for their preferences. I will take up this issue of matching - and hence meeting desiderata (a), (b) and (c) - in relation to (d) and (e) by considering two possible (and non-exclusive) models for addressing these final two desiderata:

Model 1

Insofar as EU citizenship is acquired through the acquisition of national citizenship of a member state, this model would imply the harmonization of rules governing refugee’s acquisition of national citizenship in its member states.

Model 2

This model would involve Model 1 plus the more radical change of granting EU free movement rights to refugees prior to the acquisition of national citizenship of a member state. This could be done via accelerated access (say, 3 years rather than 5) to the status of EU denizenship or residential quasi EU citizenship created by EU Directive 2003/109/EC which harmonizes the status and rights of long-term resident third country nationals – or via a separate directive on refugee integration in the member states that could create a new EU status of settled refugees prior to and independently of naturalization, where such a status would provide refugees with enhanced mobility rights in the EU and would thus also enable and authorize secondary migrations within the EU after a certain period of initial settlement.⁸

With these two (potentially complementary) models in place, let’s return to the issue of a matching scheme.

One such matching scheme that recognizes the heterogeneous preferences and diverse ranking of preferences of refugees and of states in relation to the end of inclusion and integration is the proposal by Will Jones and Alexander Teytelboym.⁹ The basic idea here is that the legitimate preferences of states and of refugees, expressed as rank ordered sets, could be algorithmically matched. They present its benefit thus:

Refugees, in principle, could submit their preferences from anywhere, saving them the risk of a dangerous journey and the extortion of people smugglers. This system involves no payment, works where there are quotas or other constraints, and can be made to work so that it is:

• 1. comprehensive – all refugees within the system are hosted somewhere (with quotas agreed by participating states adding up to the total number of refugees seeking places ‘in the marketplace’)

• 2. stable – refugees and countries do not end up dissatisfied with their choice and wanting to ‘re-match’ by undertaking secondary movements

• 3. efficient – no refugee can be made better off without making at least one other refugee worse off.

Finally, it can be made ‘safe’ for states and refugees to honestly reveal their true preferences.¹⁰

In the form advanced by Jones and Teytelboym, this matching system focuses on the state of asylum preferences of refugees and the type of refugee preferred by states (for example, whether they speak a major language of the state of asylum) – and this raises two issues for us in relation to the two models.

The first issue concerns the kind of preferences that should be the relevant focus. For example, the vast majority of Syrian refugees who have expressed a preference for a state of asylum in the EU have identified Germany as their first choice. There is, then, an issue concerning the formation of these preferences, that is, whether they have been formed through a reliable epistemic process. This issue becomes particularly pertinent as refugees move to lower ranked preferences where the informational basis on which the ranking is made may be poor. Acknowledging this issue links to a second point, that is, whether more general value-preferences might provide a more robust basis for capturing what is valuable for refugees because less dependent on the refugee possessing accurate information about potential destination states. These more general value preferences could then be used in conjunction with epistemically robust indicators to generate a refugee’s ranking of preferred states. Notice though that much more hangs on this epistemic process for model 1 than for model 2. For model 1, since refugees are being allocated to states of asylum that will presumptively be the states of which they acquire national citizenship (and derivatively EU citizenship), their rank ordering of preferences is highly significant for their future. For model 2, the matching scheme is allocating refugees to states of first EU refuge where they will be integrated prior to making decisions about in which EU member state to settle and naturalise at a time where they will, or are more likely to, have a much more robust basis on which to make such decisions. If they choose to stay, they will access EU citizenship more rapidly than if they choose to move. It is, of course, true that refugees in model 1 can move to another member state once they have acquired national citizenship in the state of asylum and begin the process of acquiring naturalisation in this second member state not as a refugee but as an ordinary SCN, but this seems to get the relationship between the EU and refugees wrong. It would make more sense of this relationship if, in virtue of rapid access to EU denizenship with free movement rights, refugees as “functional SCNs” were then able to make a genuine choice about where to commit themselves to national citizenship and to do so as refugees who benefit from rules of accelerated or rapid access to such national citizenship.

The second issue with Jones and Teytelboym’s version of a matching scheme concerns the distinction between preferences and legitimate preferences. Could a state, for example, legitimately express a preference for refugees who are Christians or who are highly educated or who are young? These features may, after all, be salient for supporting the goal of inclusion and integration in these states. Much here depends on the reasons for these preferences, for example, it would seem prima facie to be an expressive wrong for a state that had a religiously diverse citizenry to express a preference for refugees of a particular religion (unless perhaps as a way of supporting a minority religious group that faces social discrimination). However, there may be legitimate reasons for a state with an age-imbalanced population (e.g., Italy, Germany) that weakens the sustainability of socially just inter-generational relations within the state to prefer younger refugees. These preferences may be legitimate where they support goals in addition to inclusion and integration that the EU has independent reasons to value. Notice though that this distinction between preferences and legitimate preferences of states is also one that is much more significant for model 1 than model 2 in ways that will be likely to put political pressure on the distinction. If the state is the state of asylum and refugees are presumptive future citizens, then where the line between preferences and legitimate preferences is drawn (as well as how and by whom) is likely to be a site of political dispute that may be solidarity-undermining. By contrast, the significance for model 2 in which the state is a state for first EU refuge but not necessarily of asylum and naturalisation is considerably less and the opportunities for states to retain or attract refugees for other policy purposes are broadly equivalent to those already in use for SCNs.

Matching systems provide a plausible mechanism for accommodating the legitimate preferences of refugees and of states in both models 1 and 2. But such schemes also enable the possibility of responsibility-trading. This is of greater importance for model 1 but can also apply to model 2.

Suppose that the preferences of refugees could in principle be more fully satisfied if the quotas between states were changed in a way that enabled more refugees to achieve greater satisfaction of higher ranked preferences. For example, while the 90% of Syrian refugees to the EU who rank Germany as their first preference cannot all have that preference satisfied, more could if Germany’s quota increased. Are departures from a just distribution of refugee quotas to accommodate refugee preferences justifiable such that CEAS on model 1 or model 2 should allow for such departures?

If we consider model 1, it is important to distinguish between two different types of departure from such a just distribution of quotas. The first type of departure would trade off accommodation of refugee choices against the degree of protection provided, perhaps most obviously the rapid access to membership of the state of asylum. The second type of departure would trade off accommodation of refugee choices against the share of other responsibilities owed by the relevant states of asylum as EU member states, whether these responsibilities pertain to other dimensions of CEAS (such as funding) or to their share of more general responsibilities of EU member states to one another. We should reject the first type of departure from a just distribution in which accommodating refugee choices becomes a basis for weakening the protections that are practical expressions of the reasons for valuing refugee choices, namely, to support refugee autonomy through inclusion and integration. There are, however, good reasons to endorse the possibility of the second type of departure in which there is a fair redistribution of overall shared responsibilities of EU member states so that states are not disadvantaged by seeking to accommodate refugee choices more fully than a just distribution of quotas requires. We can think of this in terms of a model of quota-trading between states constrained by the principle that quotas can be traded only insofar if the trade in question offers a fuller accommodation of refugee preferences.

Here it is important to note that a matching system can also be used in an indicative way in the sense that, given refugee and state preferences, the system can simulate the different outcomes under different sets of quota distributions. This both allows the testing of possible trades in terms of refugee preference satisfaction and, hence, identifying the range of legitimate trades. It also provides states with the informational base for fair trading of (part of) their asylum quota in exchange for (part of) their share of, for example, responsibility for funding CEAS. Note that this is not a system for buying or selling refugee quotas, it is rather about allowing member states, under an important constraint, the opportunity to shape the form that their fair share of responsibility takes: it is best seen as a form of responsibility-trading. In contrast to a fixed quota, this option allows the EU to accommodate the opportunity for member states to engage such trading without weakening, and possibly strengthening, solidarity. In relation to model 2, such responsibility-trading could encompass quotas for states of first EU refuge and while this is less immediately significant than trades in relation to quotas for states of asylum, it might plausibly support a higher congruence of refugees being initially settled in the states where they are likely to apply for naturalisation, while allowing a mechanism through which refugees, at a time-cost with respect to naturalisation, could change their residence.

Each of these models can sensibly be taken to be superior to the current EU proposals in meeting the five desiderata. However, my view is that model 2 which adds denizenship rights, including free movement rights, prior to acquisition of nationality is the preferable option and, hence, that we should support both the harmonization of refugee access to acquisition of national citizenship as core to the future development of CEAS and the granting of free movement (and related denizenship) rights to refugees prior to the acquisition of national citizenship. From the standpoint of both the refugee and individual states, this provides greater scope for autonomy in shaping their own futures. For refugees, the combination of their choices being given normative weight in the allocation process and the supplementary option of free movement rights after 3 years is an acknowledgment of their standing as autonomous moral agents who are sources of claims to justification, but it also offers a recognition of their presumptive status as EU citizens-in-the-making. For states, the quota-based matching scheme underwrites a combination of fair responsibility-sharing with giving normative weight to state choices in ways that support social and civic integration, while the supplement of refugee free movement rights prior to acquisition of national citizenship provides a mechanism whereby refugees who stay are seen as making a clear public choice to identify civically with this state. (Note that this supplement can also compensate for some variation in the conditions on access to citizenship.) From the standpoint of the EU, these features are both liable to be more solidarity-generating than the alternatives (precisely because they give scope for state and refugee autonomy) and retain the derivation character of EU citizenship while acknowledging the central role of the EU with respect to asylum policy. In sum, combining a quota-based matching scheme with denizenship-based free movement rights provides the widest degree of flexibility for Member States in terms of justly discharging their CEAS responsibilities while also respecting the autonomy of refugees as civic agents concerning where to commit themselves in terms of naturalisation if they choose to do so.

5 Conclusion

My purpose in this article has been to show that the issues raised by CEAS for EU integration extend beyond solidarity between member states with respect to refugee protection into the more vital integration issue of the citizenship regime of the EU and its member states. Acknowledging the empirical expectation and normative presumption that, in protracted refugee contexts, refugees will become citizens of the state or polity of asylum, I have claimed that this poses a normative problem for the EU in terms of its commitment to CEAS but failure to secure equal terms of access to EU citizenship for refugees. Identifying desiderata for a tolerably just and legitimate CEAS, I have highlighted to importance of a matching scheme for integrating desiderata (a), (b) and (c) and then considered two different ways in which such a scheme could be combined with meeting (d) and (e). Although a model based around harmonization of refugee access to acquisition of national citizenship would provide a way of meeting these desiderata, I have suggested that both states and refugees have reasons to endorse a model with combines harmonization with accelerated access to free movement (and related denizenship) rights prior to naturalization. What I hope is clear is that refugee policy and EU integration are intimately related via the citizenship regime of the EU and, hence, that doing justice to the claims of refugees is an issue that concerns that nature and form of EU integration. Specially I have argued not only that refugees are entitled to accelerated access to national citizenship and, hence, EU citizenship but that the EU and its member states also have good reason to provide refugee with accelerated access to EU denizenship/quasi-citizenship rights, crucially that of free movement within the EU.

Appendix 1

Table 1 Citizenship acquisition for refugees and citizenship acquisition by ordinary naturalisation