essay / Lucía Serrano Royo

Currently, some 60 million people are forcibly displaced in the world (Arenas-Hidalgo, 2017). [1] The figures become more significant if it is observed that more than 80% of migratory flows are directed to developing countries development, while only 20% have as goal developed countries, which in turn have more means and wealth, and would be more suitable to receive these migratory flows.

In 2015, Europe welcomed 1.2 million people, which was an unprecedented magnitude since the Second World War. This status has led to an intense discussion on solidarity and responsibility among Member States.

The way in which this subject has been legislated in the European Union has given rise to irregularities in its application among the different States. This subject within the European Union system is a shared skill of the area of freedom, security and justice. The Treaty on the Functioning of the European Union (TFEU) in its article 2.2 and 3 establishes that in these competences, it is the States that must legislate insofar as the Union does not exercise its skill. This has given rise to a partial development and inequalities.

development legislative

The figure of refugees is reflected for the first time in an international document in the Geneva Convention relating to the Status of Refugees (1951) and its 1967 protocol . (UNHCR: The UN Refugee Agency, 2017)[2]. Despite this breakthrough, the treatment of refugees was different in each Member State, as their national policy was dealt with. Therefore, in an attempt to harmonize national policies, the Dublin agreement was signed in 1990. However, it was not until the Treaty of Amsterdam in May 1999, when it was established as goal to create an area of freedom, security and justice, treating the subject immigration and asylum as a shared skill . Already in October 1999, the European committee held a special session for the creation of an area of freedom, security and justice in the European Union, concluding with the need to create a Common European Asylum System (CEAS) (CIDOB, 2017)[3]. Finally, these policies in subject of asylum become subject common with the Lisbon Treaty and its development in the TFEU.

Currently, its raison d'être is set out in Article 67 et seq. of the TFEU, which states that the Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. This area shall also guarantee the absence of controls on persons at internal borders. Furthermore, it is established that the EU will develop a common policy on asylum, immigration and external border control (art 67.2 TFEU) based on solidarity between Member States, which is fair towards third-country nationals. But the area of freedom, security and justice is not a watertight compartment in the treaties, but has to be interpreted in the light of other sections.

This skill should be analyzed, on the one hand, under the framework of free movement of persons within the European Union, and on the other hand, taking into account the financial field. As regards the free movement of persons, article 77 TFEU must be applied, which calls on the Union to develop a policy ensuring the total absence of checks on persons at internal borders, while guaranteeing checks at external borders. To this end, the European Parliament and the committee, in accordance with the ordinary legislative procedure , must establish a common policy on visas and other short-stay permits residency program , controls and conditions under which third-country nationals may move freely within the Union. As regards the financial sphere, account must be taken of article 80 TFEU, which establishes the principle of solidarity in asylum, immigration and control policies, taking into account the fair sharing of responsibility among Member States.

Furthermore, a fundamental aspect for the development of this subject has been the harmonization of the term refugee by the Union, defining it as third-country nationals or stateless persons who are outside their home country and are unwilling or unable to return to it due to a well-founded fear of being persecuted on account of their race, religion, nationality or opinion (Eur-ex.europa.eu, 2017)[4]. This is of particular importance because these are the characteristics necessary to acquire refugee status, which in turn is necessary to obtain asylum in the European Union.

status in Europe

Despite the legislative development , the response in Europe to the humanitarian crisis following the outbreak of the Syrian conflict, together with the upsurge of conflicts in Iraq, Afghanistan, Eritrea or Somalia, has been very ineffective, which has shaken the system.

The decision to grant or withdraw refugee status belongs to each State's internal authorities and may therefore differ from one State to another. What the European Union does is to guarantee common protection and ensure that asylum seekers have access to fair and efficient asylum procedures. This is why the EU is trying to establish a coherent system for decision making in this regard by the Member States, developing rules on the whole process of application asylum. In addition, in the event that the person does not meet the requirements criteria for refugee status, but is in a status sensitive situation due to risk of serious harm in case of return to his or her country, he or she is entitled to subsidiary protection. The principle of non-refoulement applies to these persons, i.e. they have the right first and foremost not to be taken to a country where there is a risk to their lives.

The problem with this system is that Turkey and Lebanon alone host 10 times more refugees than the whole of Europe, which up to 2016 only processed 813,599 asylum applications. Specifically, Spain granted protection to 6,855 applicants, of which 6,215 were Syrians[5]; despite the increase compared to previous years, the figures were still the lowest in the European environment.

Many of the people who disembark in Greece or Italy, set off again towards the Balkans through Yugoslavia and Serbia to Hungary, in view of the deficiencies of management and the precarious conditions they found in these host countries.

In an attempt to implement the principle of solidarity and cooperation, a series of quotas were established in 2015 to alleviate the humanitarian crisis and the pressure established in Greece and Italy. Member states were to share 120,000 asylum seekers, and all countries were to abide by it. The main stakeholder was Germany. Another mechanism that was set up was a fund with position to the Refugee Mechanism in Turkey, to meet the needs of refugees hosted in that country. The Commission allocated a total amount of €2.2 billion, and budgeted €3 billion in 2016-2017[6].

Faced with this status countries have reacted differently within the Union. In contrast to countries such as Germany, which is looking for a way to combat aging and population reduction in its state through the entrance of refugees, other Member States are reluctant to implement the policies. Even in some EU countries, nationalist parties are gaining strength and support: in the Netherlands, Geert Wilders (Freedom Party); in France, Marine Le Pen (National Front); and in Germany, Frauke Petry (Alternative for Germany party). Although these parties are not the main political force in these countries, this reflects the dissatisfaction of part of the population with the entrance of refugees in the States. The case of the United Kingdom is also noteworthy, since one of the causes of Brexit was the desire to regain control over the entrance of immigrants in the country. In addition, the United Kingdom initially opted out of the quota system applied in the other Member States. As confirmed in her negotiations, Prime Minister Theresa May prioritizes the rejection of immigration over free trade in the EU.

Specific mechanisms for development of the ESLJ

The borders between the different countries of the Union have become blurred. With the Schengen border code and the Community code on visas, borders have been opened and integrated, thus allowing the free movement of people. The operation of these systems has required the establishment of common rules on the entrance of persons and the control of visas, since once the external border of the EU has been crossed, controls are minimal. Therefore, documentation checks vary depending on the places of origin of the recipients, with a more detailed control for non-EU citizens. Only exceptionally is there provision for the reintroduction of internal border controls (for a maximum period of thirty days), in the event of a serious threat to public order and internal security.

Since the control of external borders depends on the States where they are located, systems such as Frontex 2004 have been created, from the ad hoc Border Control Centers established in 1999, which provides financial aid to the States in the control of the external borders of the EU, mainly to those countries that suffer great migratory pressures (Frontex.europa.eu, 2017) [7]. The Internal Security Fund, a financial support system emerged in 2014 and aimed at strengthening external borders and visas, has also been created.

Another active mechanism is the Common European Asylum System (CEAS), to strengthen the cooperation of EU countries, where theoretically Member States should allocate 20% of the available resources[8]. For its implementation, the Asylum, Migration and Integration Fund (AMIF) (2014-2020) was established necessary for promote the effectiveness of the management of migration flows. In addition, an asylum policy for the European Union has been established in the CEAS, which includes a directive on asylum procedures and a directive on reception conditions. The Dublin Regulation, from agreement with the Geneva Convention, is integrated into this system. It is a fundamental mechanism and although this system has been simplified, unified and clarified, it has caused more controversy at subject of refugees. It was established to streamline asylum application processes in the 32 countries that apply the Regulation. Under this law, only one country is manager of the examination of its application: the country that takes the refugee's fingerprints, i.e., the first one he or she arrived in and applied for international protection. This works regardless of whether the person travels to or seeks asylum in another country; the competent country is the one in which the refugee was first fingerprinted. This system relies on EURODAC, as it is a central system that financial aid EU Member States to determine the country manager to examine an asylum application by comparing fingerprints.

The committee European Refugees and Exiles has highlighted the two main problems of this system: on the one hand, it leads refugees to travel clandestinely and dangerously until they reach their destination country, in order to avoid being fingerprinted by a country other than the one in which they want to settle. On the other hand, Greece and Italy, which are the main destinations of migrant flows, cannot cope with the burden this system imposes on them to process the masses of people arriving on their territory in search of protection.

Cases before the EU Court of Justice

The Court of Justice of the European Union has ruled on various aspects relating to immigration and the treatment of refugees by the Member States. On some occasions the Court has remained steadfast in the application of the homogeneous rules and regulations of the Union, while in other cases the Court has left the matter to the discretion of the different Member States. 

The court ruled in favor of a joint action in the case of a third country national (Mr. El Dridi) who illegally entered Italy without permission from residency program. On May 8, 2004 the Prefect of Turin issued against him a decree of expulsion. The CJEU (CJEU, 28 April 2011)[9] ruled that despite the fact that an immigrant is in status illegally and remains in the territory of the referred Member State without just cause, even with the concurrence of an infringement of an order to leave the said territory in a given deadline , the State cannot impose a prison sentence, since following Directive 2008/115, they exclude the criminal skill of the Member States in the field of illegal immigration and irregular status . Thus, the States must adjust their legislation to ensure compliance with EU law.

On the other hand, the court leaves it up to the States to decide to send back to a third country an immigrant who has applied for international protection on its territory, if it considers that this country meets the criteria of a "safe third country". Even the court ruled (CJEU, December 10, 2013) [10]that, in order to streamline the processing of asylum applications and to avoid obstruction of the system, the Member State retains its prerogative in exercising the right to grant asylum regardless of which Member State manager of the examination of a application. This School leaves a large margin of appreciation to the States. Homogeneity in this case can only be seen in the case of systematic shortcomings of the asylum procedure and of the conditions of reception of asylum seekers in that State, or degrading treatment.

For a more active attitude

The European Union has established a multitude of mechanisms, and has skill to set them in motion, but its passivity and the reluctant attitude of the Member States in welcoming refugees call into question the unity of the European Union system and the freedom of movement that characterizes the EU itself. The status it faces is complex, as there is a humanitarian crisis arising from the flow of migrants in need of financial aid at its borders. Meanwhile, States are passive and even against improving the system, to the point that some States have proposed the restoration of internal border controls (El Español, 2017).[11] This status has been caused mainly by a lack of effective control over their borders within the Union, and on the other hand by a society that sample wary of open borders because of insecurity.

The refugee crisis is a real problem and closing the borders will not make the problem go away. This is why European countries should adopt a common and active perspective. The earmarking of funds serves as financial aid in this humanitarian crisis, but it is not the only solution. One of the main unresolved problems is the status of people in refugee camps, who are in precarious conditions and should be received in a dignified manner. The Union should react more actively to these situations, making use of its skill in subject of asylum and immigration arrivals with massive influx, as stated in art 78 TFEU c).

This status remains one of the main objectives for the diary of the European Union since the White Paper establishes the reinforcement of the diary Migration, actions on the refugee crisis and aspects on the population crisis in Europe. It advocates for an increase in immigration policies and protection of legal immigration, while combating illegal immigration, helping both immigrants and the European population (European Commission, 2014) [12]. Despite these positive plans and perspectives, it is necessary to take into account the delicate status that the EU is facing internally, with cases such as the withdrawal of a State with power within the Union (the Brexit), which could lead to a diversion in the efforts of community policies, leaving aside crucial issues, such as the status of refugees.