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The Future of the Area of Freedom, Security and Justice: Addressing Mobility, Protection and Effectiveness in the Long Run)

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The Future of the Area of Freedom, Security and Justice: Addressing Mobility, Protection and Effectiveness in the Long Run) 14 October 2015 Why was the EU not prepared for the refugee crisis and what to expect next? Andreia Ghimis Compendium of EPC publications on migration, asylum and mobility Why was the EU not prepared for the refugee crisis and what to expect next? Andreia Ghimis The word ‘crisis’ has been used so frequently lately that is has almost lost its substance. Yet, in the context of the ‘refugee crisis’, the European Union and its member states have experienced all that comes with a crisis: panic, disorder, instability ... the list is long. But how did we get here? Why was the EU not prepared? And how can negative effects be minimised in the future? This paper aims to address some of these questions by considering recent events in their wider context. With the dramatic escalation of events in the past weeks, many will have forgotten that just over a year ago, in June 2014, the European Council adopted its strategic guidelines (SG) in the area of freedom, security and justice for the next five years. Following the Tampere (1999-2004), The Hague (2005-2009) and Stockholm (2010-2014) programmes, this new key document was agreed upon when migratory flows to the EU seemed ‘under control’. Frontex reported approximately 68,500 irregular border crossings for the second quarter of 2014 and EASO mentioned a total of 130,900 applicants for international protection in the same period. Although higher than in the previous years, the numbers were not alarming. This situation was definitely reflected in last year’s underwhelming document. Despite strong impetus from stakeholders, paradoxically the 2014 guidelines lacked a long-term strategic component. (See EPC Commentary The European Council’s strategic guidelines and immigration: can the EU be bold and innovative?) In fact, last year the European Council opted to focus on transposition, implementation and consolidation, which was much needed after the adoption of the second generation rules of the Common European Asylum System. However, even if politically opportune, this was not sufficient. The determination to ensure the accurate and full implementation of EU asylum law only became visible a few weeks ago, when the European Commission started a set of 40 infringement decisions against nineteen member states. The harsh reality at the EU’s borders has highlighted the European Council's failure to adopt more forward-looking policy options. The unequal distribution of responsibilities among member states brought about by the Dublin Regulation, the need for mutual recognition of positive asylum decisions, relocation procedures and joint processing schemes were already on the table when the strategic guidelines were discussed. (See EPC Discussion Paper: The future of the area of freedom, security and justice: Addressing mobility, protection and effectiveness in the long run). But while the European Council’s document timidly hints at the “Treaty principles of solidarity and fair sharing of responsibility”, the other concrete proposals outlined above were left unmentioned. Yet, one year later, hotspots are functioning in Greece and Italy and the relocation of asylum seekers has slowly started as well. Despite the immense political reluctance, policy solutions that the EU leaders were refusing to talk about last year are now a reality. It is certainly neither politically smart nor politically healthy to wait until the twelfth hour before reaching a compromise. But against the background of increasing pressure, the remarkable efforts of the European Commission and of the Luxembourgish Presidency are starting to pay off. While these achievements must be acknowledged, they should not be overestimated. The road towards sustainable solutions will be long and bumpy. A major part of the answer to this crisis lies within the remit of EU’s external action: rethinking cooperation with transit countries, reinforcing or building their asylum reception, registration and integration capacities; boosting international aid; stabilising the situation in conflict-hit countries; creating the conditions for economic development in the EU’s immediate neighbourhood, etc. While shaping its external response, the EU also has to keep in mind the very dangerous internal consequences of the refugee crisis and make sure to: Protect Schengen The current refugee crisis is not the first occasion that the Schengen agreement has been under pressure. In the context of the Arab spring, tensions between Schengen members rose as France decided to reinstall temporary border checks to stop Tunisians heading towards its territory via Italy (Lampedusa). The number of arrivals back then (around 48,000) is not comparable with the current situation. The complexity and the dimension of the two episodes are not similar either. Still, in 2011, then French President Nicolas Sarkozy and Prime Minister Silvio Berlusconi convinced their partners of the need to reform the Schengen agreement. The intention was to make sure that it allowed greater possibilities for reintroducing border controls. The final compromise led to a new exception to the borderless Union being included in the agreement in cases whereby one member state showed ‘serious deficiencies’ in applying the rules on external borders. However, this exception is subject to important procedural safeguards. (See Collection of EPC Papers on Schengen, especially EPC Discussion Paper: The Schengen Governance Package: The subtle balance between Community method and intergovernmental approach) It cannot be ruled out that a new desire to reform Schengen and include even more exceptions to a Europe without internal borders appearing will arise. Indeed, the current context could be even more favourable than it was in 2011 for such initiatives. However, with the refugee crisis, the Schengen agreement has proved its flexibility as national governments have been able to a priori legally install and extend border controls at times of huge pressure on their asylum systems. Still, the European Commission must oversee these developments attentively and ensure a swift return to a normal situation. (See EPC Commentary: The refugee crisis: Schengen’s slippery slope) Understand the interactions between its policies and ensure coherence The EU has timidly started to move towards – as clichéd as it may sound – a more holistic approach to migration. Different Directorates-General of the European Commission are communicating more frequently on migration- related issues: DG Migration and Home Affairs, DG Development and Cooperation, DG Neighbourhood and Enlargement Negotiations, DG Trade and DG Agriculture and Rural Development. Federica Mogherini, the EU’s foreign policy chief, has also been markedly present in the refugee crisis debate. This change is very much needed. Some integrated EU policies – development, trade, agriculture, fisheries – might create or reduce incentives for third country nationals to move towards the EU. The failure of other, less integrated policies – common foreign and security policy – to stabilise the EU’s neighbourhood is one of the causes that generate migratory flows. The interactions are numerous and complex, but policy makers have to understand them in order to anticipate and control the effects of the decisions they make. To contribute to this learning process, the EPC launched the ‘Forced migration project: how can the EU play a greater and more coordinated role’. (The report of the project is due at the beginning of 2016, more information here) Rethink its capacity to influence national migrant integration policies Migrant integration policies are a national competence. The EU can only encourage exchange of information, policy coordination and ensure financial support. With 28 different migration histories in a Union armed exclusively with soft power, the result is no surprise: a large variety of national integration systems. Some very developed and some at an embryonic stage. (The EPC will soon publish a comparative report: Measures and rules developed in the EU member states regarding integration of third country nationals). Therefore, the EU cannot afford to simply dismiss the legitimate concerns expressed by some governments as to their capacity to integrate the relocated asylum seekers. The future cohesion of EU societies is at stake. So, Europe should assist the less experienced states such as Latvia, Lithuania, Romania, Slovakia, Slovenia, etc. in addressing the sensitive integration matter by financing, deploying experts and providing guidelines. But the integration aspect must be kept in mind even before the asylum seekers reach the destination countries. For instance, it has been proven that detention practices can have significant consequences on the subsequent integration of asylum seekers. Such measures must therefore only be implemented as a last resort. (See Evidence on migrants’ integration in Europe – to which Yves Pascouau, EPC Director of migration and mobility policies contributed). Prepare a strong response to populist anti-EU and anti-immigrant discourses Anti-immigration populism has existed in Europe for a long time. The harmful discourse (but not only) that comes with it has earned populist parties more seats in the European Parliament than in the previous legislature. (See EPC Policy Brief Immigration and free movement in an unusual electoral race: what implications for the next political cycle? and EPC Commentary Post-European Parliament Elections Analysis) Over the coming months and years, populists will feed the poisonous fruit of the refugee
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