Addressing the Refugee Crisis: Will the “Fairness Mechanism” Make a Difference?
Vol. 38 Associate Editor
On May 4, 2016, the European Union (EU) announced a new plan to address the massive influx of migrants. The plan, called the Common European Asylum System, was proposed to address flaws in the Dublin Regulation, Europe’s current asylum mechanism, and create a fairer, more efficient, and more sustainable system. The current system requires refugees to claim asylum in the first EU member state in which they arrive. Refugees who do not do this, and later try to claim asylum in a different member state are deported back to their country of first arrival. This system places a heavy burden on entry states, most specifically Greece in the current crisis. The new proposal, nicknamed “Dublin Plus” as some have called it, introduces a corrective allocation mechanism, or fairness mechanism. The mechanism makes mandatory an emergency provision. Refugees are still required to claim asylum in the their country of first arrival, with the new policy coming into effect if a country receives one hundred and fifty percent more than its annual “fair share” (determined based on country size and population). New applicants will then be relocated across all EU member states until the “fair share” level is reached. States which refuse to participate will be fined €250,000 per migrant, in order to fund relocating the refugee elsewhere. On its face, the proposal appears to be a move towards greater responsibility sharing amongst EU states; however, in totality it actually does very little to disburse the current burden facing countries like Greece. Unsurprisingly, the proposal drew a degree criticism from a few member states, specifically Poland, Slovakia, Hungary, and the Czech Republic, the four countries which were outvoted when the plan was agreed upon. Just five days after the announcement, Poland announced it would not take a single refugee due to “security” concerns. This plan is in no way cemented yet; the system first needs approval from the European Parliament and member states capitals. However, the road to approval has hit a few bumps. First, Brexit passed, meaning Britain is leaving the EU, creating a general uncertainty regarding the future of the institution. Although, the UK was one of three countries who had an opt-out provision in the Dublin Regulation and had already indicated it would not take part in the fairness mechanism. Second, in October 2016, Hungary attempted to pass a government referendum refusing the refugee quota. Ninety nine percent of voters supported the government, voting to exclude refugees; however only forty three percent of Hungarians voted invalidating the result. Finally, and most significantly, on October 21, 2016, the Greek Officials declared the Common European Asylum System to be unacceptable since the burden still remains on the country of first arrival (meaning nothing really changes for Greece). The EU Council is expected to reach the issue in December.  Overall, the ultimate fate of the Common European Asylum System is yet to be decided, but conceptually the proposal presents an interesting, albeit imperfect, solution. The move towards a redistribution is idealistically appealing because it is a very small step in the direction of responsibility sharing amongst states. Yet, the proposal in general still lacks equitable responsibility sharing. Countries of first arrival still bear the majority of the burden, meaning very little will change for Greece under the proposal. The Preamble of the Convention recognizes that “the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of the problem of which the United Nations as recognized the international scope and nature cannot therefore be achieved without international cooperation.” In essence, the preamble acknowledges that some form of international responsibility sharing exists in the very fabric of providing aid to refugees. Yet, in practice, such a sharing is rare. Despite the acknowledgement that refugee protection demands a global response, the Refugee Convention only requires states to care for the refugees in its territories; the Convention places no corresponding legal obligation on other countries to help hosting states with the protection of refugees. The Common European Asylum Proposal seems to be an attempt to bridge this gap. The original Dublin Regulation appears to be a type of resource sharing in the refugee context since on its face it requires interstate cooperation, and did encapsulate the emergency provision. The introduction of fines for failure of a state to shoulder its share of migrants takes this the Regulation a step further by legalizing the duty of states to provide protection of refugees. However, at the end of the day, the fairness mechanism not go far enough. The proposed revision still places the burden on the country of first entry to process the initial applications. It is only after this step that refugees would be relocated. In the past, when states voluntarily agreed to share in the relocation of 160,000 refugees, less the one percent of refugees were actually relocated. The fairness mechanism does not change the status quo in any substantive manner, and given the economic and political factors at play, it seems unlikely that the proposal will even get adopted. A failure of adoption will mean that the current regime will stay in place, and the EU will have to go back to the drawing board if it wants to address the current refugee crisis.
 European Commission Press Release IP/16/1620, Towards a Sustainable and Fair Common European Asylum System (May 4, 2016), http://europa.eu/rapid/press-release_IP-16-1620_en.htm.  Id.  Gavin Lee, Migrant Crisis: Has EU Found Solution for Flawed Asylum Rule?, BBC News: Inside Eur. Blog (May 5, 2016), http://www.bbc.com/news/blogs-eu-36205211.  European Commission Press Release, supra note 1.  Migrant Crisis: EU Plans Penalties for Refusing Asylum Seekers, BBC News (May 4, 2016), http://www.bbc.com/news/world-europe-36202490.  Lee, supra note 3.  Migrant Crisis: EU Plans Penalties for Refusing Asylum Seekers, supra note 5.  Lee, supra note 3.  European Commission Press Release, supra note 1.  Lee, supra note 3.  Migrant Crisis: EU Plans Penalties for Refusing Asylum Seekers, supra note 5.  European Commission Press Release, supra note 1.  Lee, supra note 3.  Migrant Crisis: EU Plans Penalties for Refusing Asylum Seekers, supra note 5.  Matt Broomfeld, Poland Refuses to Take a Single Refugee Because of ‘Security’ Fears, Indep. (May 9, 2016), http://www.independent.co.uk/news/world/europe/poland-refuses-to-take-a-single-refugee-because-of-security-fears-a7020076.html.  James McAuley, Central European Countries Resist New E.U. Refugee Quota Proposal, Wash. Post (May 4, 2016), https://www.washingtonpost.com/world/europe/central-european-countries-resist-new-eu-refugee-quota-proposal/2016/05/04/5be5a32c-120e-11e6-a9b5-bf703a5a7191_story.html.  Migrant Crisis: EU Plans Penalties for Refusing Asylum Seekers, supra note 5.  Pablo Gorondi, Low Turnout Invalidates Hungary Ballot on EU Refugee Quotas, Wash. Post (Oct. 2, 2016), https://www.washingtonpost.com/world/europe/hungary-votes-on-governments-rejection-of-eu-refugee-quotas/2016/10/02/8e67d71c-885a-11e6-b57d-dd49277af02f_story.html.  Id.  Irene Kostaki, EU Council on Migration: Greece Opposes EU Asylum System Reform, New Eur. (Oct. 21, 2016, 11:49 AM), https://www.neweurope.eu/article/eu-council-migration-greece-opposes-eu-asylum-system-reform/.  Id.  Convention Relating to the Status of Refugees, Preamble, July 28, 1951, 189 U.N.T.S. 138.  Symposium, 2015-2016 Symposium Transcript: Global Refugee Crisis, 31 Conn. J. Int’l L. 281, 287 (2016).  Id. at 301.  Lee, supra note 3.