UNIVERSITY OF AMSTERDAM
Graduate School of Social Sciences MSc Political Science: International Relations
Master thesis
A FAIRNESS CRISIS
A view on the fairness of the emergency relocation mechanism in Europe and Romania
Student: Ion-Adrian Fucigiu Supervisor: Enzo Rossi Second reader: Seiki Tanaka Student number: 11125004
1 Abstract
The current refugee crisis in Europe has become one of the central subjects of policy making processes, political debates and societal concerns. This thesis has the scope of answering the following question: ’’Is the current quota system compatible with European laws and ultimately fair for the refugees?’’. In this regard a theoretical and empirical analysis was conducted to explore the practical and legal issues of the current quota system, at the macro-level of the EU as well as on the state-level. Findings of the research indicate that the quota plan is not in full accordance with European law and thus not fair from the refugee’s view because the practical nature of the relocation mechanism infringes on European laws relating to asylum, borders and immigration.
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Table of Contents
Abstract ... 1
List of Abreviations ... 3
Chapter I Introduction ... 4
Chapter II Crisis, Refugees and Fairness ... 6
2.1. Is it a crisis? ... 6
2.2. Refugees, Fairness and Justice ... 8
Chapter III A quick fix for an unprepared system ... 14
3.1.The quota system ... 14
3.2. Legal framework ... 15
3.3. Functional obstacles, practical and legal issues of the quota plan ... 19
3.4 Alternative views on the solution ... 25
3.4.1.The matching mechanism ... 25
3.4.2. A tradable Refugee-Admission Quota System ... 27
Chapter IV Case Study: Romania and the Quota System ... 30
4.1. State of Affairs and Compulsory Quotas ... 30
4.2. The National Immigration Strategy ... 37
4.2.1. Promoting legal migration ... 37
4.2.2. Strenghthening non-eu national’s stay in Romania ... 38
4.2.3. Improving the national asylum system ... 40
4.2.4. The policy of active participation in the international community ... 42
4.2.5. NIS implementation risks ... 42
4.3. Possible issues on theimplementation of the quotas in Romania ... 43
Chapter V Conclusion ... 48
Appendix I………....50
Appendix II………..51
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List of abreviations
CEAS Common European Asylum System
ECHR European Convention on Human Rights
ERM Emergency Relocation Mechanism
EU European Union
EUREMA EU Relocation from Malta
JHA NIS
Justice and Home Affairs Councill National Immigration Strategy
TFEU Treaty on the Functioning of the European Union
UN United Nations
UNHCR United Nations High Commissioner for Refugees
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Chapter I Introduction
‘’…Vast migrations of people, some voluntary, most not, have shaped the human condition. More of us flee from war, oppression, and famine today than at any other time in human history. …Better places
will always call to us. Tides of people will continue to ebb and flow across the planet. But the lands we run to now have already been settled. Other people, often unsympathetic to our plight, are there before us…’’ Carl Sagan – Pale Blue Dot
In 2016, through desert, water, stone and razor sharp metal, people still roam the planet in search of better places already claimed by others. At this moment, as the European refugee crisis has not come to an end, waves of people arrive at the fringes of Europe, carrying with them hopes of new beginnings and scaring echoes of a not so distant past.
To better cope with over capacitated immigration systems and to alleviate the humanitarian conditions of refugees, the European Union has responded to the crisis by creating an emergency relocation mechanism, which consists of compulsory refugee quotas for each EU state that were met with political protests, nationalistic attitudes and closed borders.
Despite calls for solidarity and fairness inside Terrae Europae, migratory inflows still spur a multitude of fervent discussions that spark divisions amidst EU members. In lieu of this, the majority of political and societal debates are focused on fairness from the member state’s perspective as being the primary impacted stakeholder. But in practice the ones who suffer the most are the refugees, who have no leverage in influencingpolitical debates or policies regarding migration.Simply put, fairness from the refugee’s perspective was overlooked when implementing the emergency relocation and quota plan. Due to this oversight the process of implementation has created dire humanitarian conditions for the refugees that await relocation, conditionsthat are subpar, according to European standards.
Henceforward, this paper represents an exploratory study on the fairness of the compulsory quota system by formulating a simple yet overlooked question:
’’is the current quota system compatible with European laws and ultimately fair for the refugees?’’
Taking the aforementioned into account the scope of the study is to explore if the relocation system is fair from the refugee’s point of view. This will be achieved by investigating the practical effectiveness of the relocation system and the quota plan while further on analysing if
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this solution is in compliance with European laws and regulations regarding human rights and migration policies. To strengthen this investigation, the paper will also aim in ascertaining if the actual relocation system can in fact be implemented at the country level and explore possible issues and solutions.
In more detail, to answer the research question a theoretical and empirical analysis will be conducted and discussed during the course of the paper. In this regard the paper is structured into an introductory theoretical chapter and two substantive chapters that offer a more detailed look on the ongoing European refugee issues. During the content of this chapter, notions such as refugees, fairness and justice will be exhibited and explained to better understand the idea of fairness that will be conveyed in the thesis.
The third chapter will exhibit and analyse the fairness of the compulsory quota system by focusing on the functional and legal issues. The primary focal point of this chapter is to analyse fairness as embedded in the International and European laws and regulations. In addition, this section of the paper will highlight the importance of the connection between law and practice while also briefly relaying alternative views in relations to the current quota system. After concluding this chapter, a case study will be conducted on the implementation of the compulsory quota system in Romania. Romania was chosen as the subject of the analysis because it has the lowest population of third-country nationals living inside its borders and because it has limited experience in dealing with third-country nationals1.
Hence the first section will relay the status-quo in Romania pertaining immigration and the implementation of its share of the quota. The second section of this chapter is dedicated to the analysis of the most relevant state policy document on this matter that represents the guidebook concerning migration policies. Ultimately the chapter concludes by forecasting possible issues and solutions to implementation efforts, of the quotas in Romania that could make the plan attainable.
Finally the paper will conclude with a summary of the research findings, encountered limitations and will propose possible directions for future research.
This study presents relevance because it can lead to a greater understanding of the topic which in turn can help inform European institutions and European states on how to respond to refugee flows and how to implement future migration policies. Secondly, exploring implementation issues locally, represents an important practical exercise as to how member states could find the best solution for relocation initiatives.
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Chapter II
Crisis, Refugees and Fairness 2.1. Is it a crisis?
The ’’European refugee crisis’’, entitled by the media and which started in 2015, when a considerable number of refugees and migrants arrived in Europe, traveling great distances by maritime and land routes, displaced, seeking assylum from war, persecution, environmental changes famine and many other life threathening situations. Withal there are some who argue that these current events in Europe do not have the characteristics of a crisis and thus cannot be entitled as one. When considering numbers the capacity of dealing with current migratory flows, some authors argue that the current migration towards Europe cannot be described as a crisis.
In a piece writen by Christian Caryl (Foreign Policy Magazine 2015) argues that by contrast, compared to Europe, the overwhelming majority of refugees and displaced people live in countries such as Jordan or Lebanon. Countries that don’t have the resources to host them. Yet they bear the brunt from the entire region, either part of Africa or part of the Middle East. Not to mention both the Syrian war and the Iraqi insurgency.With more than 90 refugees per thousand inhabitants for Jordan and 208 refugees per thousands inhabitants in Lebanon (Ibid.). In line with this view when discussing numbers and availability of resources, the UNHCR spokesperson, mentioned that ’’This is a crisis for refugees, not a crisis for Europeans’’ (Devex 2016), because in contrast with countries that already host a considerable number of refugees such as Lebanon and Jordan, one million people that have arrived in Europe represents only 0.2 percent of Europe’s 500 million inhabitants (Ibid.).
On the same page another author refuses to call the unfolding events a crisis (Azmanova 2016). Azmanova argues that the situation is indeed grave, but considering the fact that the European Union has the tools, meaningfull know-how, capacity and the funds to accommodate the increasing flow of refugees, it does not actually feel like a real crisis. She continues in stating that this unfortunate chain of events are rather a nuisance for some of the member states. A refusal to process assylum applications. Such mentalities inside the EU in regards to the blocking of entry, assylum proccess refusal and xenophobic attitude leads to rash, unprepared deals (Ibid.) such as the EU-Turkey Agreement.
Finally she concludes that this deal infringes on the freedom of movement which is considered a fundamental human right and in the inhumane treatment of refugees.
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In my view these arguments present validity from a certain point of view. If we look at the numbers and the availability of resources we can easily infer that in contrast with other regions from the globe such as the Middle East, the European crisis contains just a small fraction of the worlds’s displaced and refugee population. However, the historical aspect of the crisis is completely missed out. Going back to statistics, these events represent the biggest refugee crisis in Europe since World War II (Charlotte 2015). Moreover, Europe has never received such a huge influx of people that does not share the same cultural and religious ties with the European population. Hence compared to the examples of Lebanon and Jordan which represent countries that both share cultural and religious ties with the refugee population, Europe on the other hand has to deal with the complex task of integrating a population completely foreign of European culture and values. Secondly the above authors do not take into consideration the global character of the crisis. Sure, if we look at geography we can say that some regions have it worse than others. The United States and Australia per se were always more shielded from global migration patterns than Europe. But we cannot exclude by comparison the whole dimension of the crisis especially when such situations resulted from snowball effects provoked by regional instability.
In this particular case everything is interconnected. Due to close proximity and spillovers from close proximity conflicts2 the effects will be more felt in the Middle East countries, Africa and in Europe. When saying thatwe must put everything in comparison with the different realities on the field, I consider that the above authors are taking out of context a complex situation which has global character and not a heap of refugee situations that are separate from each other. As such, when trying to determine if it is a crisis or not, all the factors that contribute to these series of events must be analyzed extensively.
To showcase the gravity of this situation, 130.000 people mostly originating from countries afflicted by war, extreme poverty or with repressive governments, had crossed the Mediterranean Sea, while more than 2510 people have lost their lives attempting the crossing in 2016 alone (Human Rights Watch Report 2016). Simultaneously, the land routes through the Balkans became more unstable and impregnable, characterized by military deployment, the building of fences, blocked border crossings, police abuse and summary expulsions (Ibid.). The effects of this surge of refugee were also significant. As a general overview of the scale of the situation, the inflow of first-time assylum seekers had rissen through November 2015 to 1.140.000 representing an increase of 128% compared to November 2014. With thousands
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assylum applications in the pipeline that will have a major impact on the economic policies and demography (Barkbu 2016).
Concluding this debate on wheter this constitutes a crisis or not, more than a milion people have left their homes in order to reach the safety of European shores. The majority that survived this voyage has been faced with a different type of reality. They have been faced with another crisis, one crisis of fairness. But considering that this debate alone could constitute a separate thesis topic I will no expand the discussion on the connotation of the refugee issue.
2.2. Refugees, Fairness and Justice
Before diving into the analysis of the quota system, its legal aspects, principles and issues, I find it helpful to mention that terms such as migrant, refugee or asylum-seeker are often used interchangeably in describing the crisis without taking into consideration that legally, each term has a different meaning. A refugee is a person who is seeking refuge from conflict and persecution across international borders, while a migrant is defined as a person who leaves his or her home country of residence to seek economic gains or a better quality of life. Concurently, an asylum-seeker is a person who has submitted a request for asylum under international and national law, waiting to be granted refugee status (Ernst &Young Report 2016). By comparison a migrant chooses to move to a certain area not because of the threat of persecution or death. As I mentioned before his incentives rely on the prospects of a better life by finding work, education family reunion or for other reasons (UNHCR 2016). It is easy to observe that the two categories are confusing as one can assert that refugees search for the same better prospects. But unlike refugees, who can return home safely, migrants do not have such impediments (Ibid.).
The distinction between the two notions is important because from a legal point of view states deal with either refugees or migrants through separate legal channels. First migrants are usually managed through national immigration system processes and laws and refugees are handled through norms regarding refugee protection, converted into national legislation (Ibid.).
Henceforth this thesis will concentrate on refugees as they are more vulnerable due to conflict, persecution and more prone to life threatening situations than migrants.
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Going back to the substantive nature, as a response to the exceptional situation regarding migrant flows on the Southern EU border, the European Union has established a provisional relocation system, sanctioned by the Council’s Decision3.
This emergency relocation system is based on the solidarity concept provisioned by both Article 88 and Article 222 of the Treaty on the Functioning of the European Union (TFEU). Nonetheless, the refugee resettlement plan was criticised by some members of the European Union, such as the Visegrad Group4and Romania, all of them stating that it is unsustainable, unfair or unjust and was later reported as infringing EU law.
This critique has its foundation on the distributional model that constitutes a derogation of the Dublin Regulation, which states that the first country of entry is the responsible authority for processing an asylum application (Center for European Policy Studies 2015). On that account, justice and fairness have become recurrent themes invoked by the afforementioned Eastern members of the EU. When referring to the imposition of these mandatory migrant quotas, the Central and East European countries view the distributive method as unfair because it touches on the sovereign fabric of the country and many other national fundamental rights such as religious rights, security and societal. To better portray these views, Victor Orban, the prime minister of Hungary, has invoked religious reasons about the rising numbers of Muslims in Europe to defend his actions and hard anti-immigration stance. He asked in an op-ed (Frankfurter Allgemeine 2015) that “Is it not worrying in itself that European Christianity is now barely able to keep Europe Christian?” (Op cit.). In a similar line the Slovak Prime Minister Robert Fico said that migrants arriving in Europe do not want to stay in Slovakia (Reuters 2015). They don’t have a base for their religion here, their relatives, they would run away anyway’’ and that ’’There is a clear difference between the new and the old member states’’. While Western Europe is "multiracial" and "multi-religious", Lajcak added, there isn’t "a single mosque" in Slovakia. He later on argued that compared to other European nations, Slovakia has no experience with immigration (Aljazeera 2015). Then there is the security argument. Most of the Central and Eastern members of the EU see a large influx of Muslim population, transiting or settling inside their borders, as a great security threat to their states. In addition to the public rhetoric they believe the Council’s decision to impose the relocation scheme is an injustice because it does not take into consideration EU and national immigration regulations,
3Article 11 Decision of the European Council’s 2015/1523 is aimed at the distribution and relocation of refugees throughout
the 28-member bloc.
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with the consequence that, in the end, they do not see this temporary solution as legally binding. On the contrary, they see it as an infringement of European law.
In contrast, the Western members of the European Union regard the ratified decision as being in compliance with the solidarity and general mutual assistance principles that govern the Treaty on the Functioning of the European Union. More specificaly, the legal basis rests on Article 78(3) of the TFUE5 which states that ’’...in the event of one or more member States
being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State(s) concerned’’ and Article 80 of TFUE6 which adds to this idea by stating that ’’...the policies of
the Union in the area of border checks, asylum and immigration and their implementation are to be governed by the principle of solidarity and fair sharing of responsibility between the member States, and the Union acts adopted in this area are to contain appropriate measures to give effect to this principle’’. Moreover solidarity is regarded as a general notion and the sharing of responsibilities is an expression of that solidarity (European Parliament Policy 2015).
The proponents of the relocation scheme feel that it is only fair to share the burden among member states in accordance with the assylum and border management, which is directly related to free movement within the European Areaand in accordance with both morality and solidarity principles. They argue that, as human beings and as Europeans, they have a duty to show compassion and to provide assistance to refugees. Moreover they claim that the European community was founded on the principle of solidarity and that European Nations must not refuse to take responsibility and turn a blind eye to suffering and hardship. Refusal to help by Central and Eastern members of the EU, for the West looks like an abandoning of the solidarity principle. Besides, taking into account the exceptional character of the situation and the massive inflow of refugees that crippled the capacity of both first countries of entry (Italy and Greece), they assert that the Dublin Regulation7 is, somewhat, rendered obsolete and thus making a
viable case for the derogatory character of this system. Evermore, when arguing about the quota system of allocation of refugees inside the EU, both divergent points of view base their arguments on the concepts of fairness and justice. Hence, I am inclined to compare member
5 Article 78 (3) of the TFEU creates the legal basis for the issuance of provisional measures in exceptional situations 6 Article 80 of the TFEU applies to all matters falling within the policy area of border checks, asylum and immigration. It is a
specification of the more general principle of solidarity and is highly connected to cooperation on which the European Union is founded.
7 The Dublin Regulation establishes the member state responsible for the examination of the asylum application. The criteria
for establishing the responsibility is based on the country where an asylum seeker first entered the European Union (Dublin II Summary of EU Regulation). This system of determining responsibility has shown its low degree of practicality and efficiency when the inflow of refugees made it impossible to process asylum applications for the first country of entry.
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motivations and interests with the Rawlsian perspective on justice and fairness. Rawls assumes that individual motivations are partly based on the impression of justice and fairness and that they are motivated by rational advantage (Rawls 1993, pg. 30) . What I wish to convey here is that each Member State of the European Unioncan be characterized as an individual that guides itself by its own moral compass, one that pursues its own interests, and as an individual that projectsits own feelings, principles and views onto others. Nonetheless the concept of fairness in this paper will not base itself on the above argument because the concept of fairness from the member state point of view does not constitute the topic of the research.
Concepts like fairness and justice are regarded differently in the ideological conflict between the Western and the Eastern groups of the EU. But going onward with the analysis, considering the opinions on justice and fairness (Rawls 1971, 1993; Habermas 1993, 1996)8, it is very easy
to confuse these two, as was the casewith the termmigrant, refugee or asylum-seeker, in the sense thatthey do not designate the same substance and most of the times are problematic, if not impossible, to define in an exhaustive or definitive way. For this reason, as the paper is progressing towards the unveiling of the intricate axioms of the quota system, I feel compeled to divert a moment from the ideological conflict between EU members and epitomize both notions of fairness and justice.Taking into account the topic of the thesis and the fact that both notions could constitute alone a separate thesis subject, my intention is to provide a coherent and thorough explanation and deconstruction of fairness and justice, as they are embedded in the Law of the European Union. Continuing with that though in mind, societies and individuals tend to associate the concepts of fairness with that of justice and most of the times they use both notions interchangeably. But these two concepts are difficult to separate from one another and are often used conversely. In a broad sense, justice may be explained by the objective application of the law originating from the principles of Law. More specifically, in a democracy justice represents a set of laws created to regulate personal and collectiveactions and behaviors. A mechanism that guarantees the security of individual rights. In the legal sense of justice, it is of worth to mention that justice is not a synonimic expression of the law, but a component and ultimate goal of it, as justice without the law cannot exist. A judge cannot convict a defendant, and thus administer justice, if the defendant’s actions are not sanctioned by a clearly defined law. The same goes with the law. In a democratic system a certain law cannot exist if it is unjust. Not in a state where the rule of law exists. For example, let’s imagine the following scenario. A certain civil law grants, to a certain authority, the power to discriminate against religion or
8 Rawls and Habermas are known as the best advocates of the procedural conception of justice occupy center stage in
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same sex relations. Consider the situation where a public law would grant a public servant the power of dennying access to public healthcare as a result of someone’s sexual orientation. According to human rights standards, in this instance we would immediatly presume that this law is unjust.
Fairness on the other hand is a subjective assertion of an individual or collective opinion. In most of the times it does not require the legal dimension to exist, as in set of clearly defined rules that govern someone’s actions. For example, we might perceive that a certain action is fair and right from a societal perspective, but unjust from the justice point of view. For instance,the extrajudicial punishments such as corporal punishments or the killing of a known bad person would be considered fair and godly retribution in a society that is not governed by the rule of law. Hence it is common sense that such practices and views are not just as long as they do not have a legal basis, but in the end they may be considered fair from a societal point of view. Humans in that regard seem to begin with fairness as their default position (Pacific Standard 2016).
In contrast, a just law can be regarded as being unfair by the members of a society. Contemplate on the example of a poor person that is imprisoned for stealing low value goods from a supermarket to provide for his or her family and then think of a politician who deliberatly comits election fraud. Both the poor person and the politician are convicted for their deeds, but the latter does not spend a single day in prison because he was given a suspended sentence. In both cases the law is applied correctly yet the outcome is unfair when we compare it to the gravity ofthe commited crimes. It is a rather extreme example but it can be delineated for example purposes only.
To sum up the above narrative, and of course not in a limitative way, we may claim that the perceptionof fairness as a concept is founded on the notion of what ought to be as opposed to what is, and is ruled by emotions in comparison with justice that is a rather dull but objective affair based on a set of rigorous and precise laws. Of course, one needs to be advised that this definition of fairness is neither perfect nor complete. Far from it, if we consider the complexities and the divergence of opinions when attempting to define these two notions.
But in this particular case regarding refugees, fair will also mean just as in being inside the boundries of the laws regulating immigration issues. Hence, if a specific action remains inside the legal boundries it will also be considered fair under the current thesis framework.
In the nextchapterI will point out and analyze the Emergency Relocation Mechanism (ERM) and will exhibit the main principles, legal framework as well as functional and legal problems with regards to the European Convention of Human Rights and other relevant treaties and laws
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such as the Treaty for the Functioning of the European Union (TFUE) and International Conventions regulating the status of refugees and migration.
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Chapter III
A quick fix for an unprepared system
3.1.The quota system
It is of no surprise that the Council’s Decision to introduce a temporary relocation mechanism has provoked a wave of controversy regarding creating a political divide between Western and Eastern European Union’s members. This is due to the fact that formally, the Decision9 is not mandatory to members states as basically it does not oblige them to participate into the relocation scheme, but it does however limit the option not to participate in it.
Furthermore, to limit this option even more, the Commision has retracted the possibility of applying for financial resposibility in case of non-participation and has unveiled plans to fine countries that refuse to take refugees (The Telegraph 2016).As such, the complex nature of the crisis creates political ’’ripples’’ in the EU.
This Emergency Relocation and Resettlement System represents a temporary solution for relocating refugees that first entered in Greece, Italy and Hungaryto other EU Countries, based on a mathematical formula or distribution key. Its primary characteristic is that it suspends the Dublin Regulation and unburdens countries that were overwhelmed by the massive influx of people traveling on different routes to Europe.
Following the two decisions, 106 000 asylum applicants are due to be relocated from Italy and Greece by September 2017. The remaining 54.000 are assigned to be relocated, unless a proposal is submitted by the Commission to the Council before September 2016, to adapt the relocation mechanism (EU Commission report 2016).
The main key features of the relocation consists of the transfer of refugees from Italy and Greece to the territory of other EU member states based on a ’distribution key’ that determines legal responsibilites among these states. According to this Commission proposal on the 9th of September10, the relocation would be done on the basis of a mandatory distribution key for Italy and Greece, using objective and quantifiable criteria. Hence, the distribution criteria were laid
9 The Decision provisions in Article 4.5 that a member state may, in exceptional circumstances notify that it is temporarily
unable to take part in the relocation process of up to 30% of applicants allocated to it in accordance with paragraph 1, giving duly justified reasons compatible with the fundamental values of the Union enshrined in Article 2 of the Treaty on European Union.
10 The European Commission presented a comprehensive European Agenda on Migration1 on 13 May 2015, outlining, on the
one hand, the immediate measures that will be proposed by the Commission to respond to the crisis situation in the Mediterranean and, on the other, the medium and long terms initiatives that need to be taken to provide structural solutions for better managing migration in all its aspects (Brussels, 9.9.2015 COM(2015) 451 final 2015/0209 (NLE).
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down in the Annexes11 of the proposal, which comprise the exact mathematical formula (Appendix 1).
This distribution key can be summarized as follows: a) the size of the population (40% weighting), that reflects the capacity of a member state to welcome a certain number of refugees; b) Total GDP (40% weighting), which aims to reflect the absolute wealth of a country and is indicative of the capacity of an economy to integrate refugees; c) Average number of
asylum applications per one million inhabitants over the years 2010 and 2014 (10% weighting,
with a 30% cap of the population and GDP effect on the key); and last but not least, d)
Unemployment rate (10% weighting, with a 30% cap of the population and GDP effect on the
key), which is aimed at showing the capacity to integrate refugees in the labour market of the host country(CEPS report 2015).
In addition to the above distribution key, the Council’s Decision has concluded that another line of attention should be given to the ’integration potential’ of the applicant, meaning that when considering the relocation scheme, the authorities should take into consideration the particular situation of the individual such as language, skills, social, cultural and family ties that could facilitate his or her integration into the countries of relocation. As a first and short critique to this last criterion, it has not been explained in what way will this criterion be assessed and applied by the national authorities of member states as it is not actually clear, as local authorities have different degrees of institutional capabilities and resources. In this regard I am simply questioning this criterion because, for example, the institutional capacity and resources of let’s say the Romanian refugee system, is smaller in comparison with the institutional capacity and resources of a larger member state such as Germany, which represents one of the biggest proponents of the quota system. As a final addendum to this concern, I find it really complex, problematic and almost impossible to make an effective assessment, which isconsiderably of a subjective nature, of each person’s situation and integrate it into a mathematical formula.
3.2. Legal framework
Except the functional issues regarding the distribution key, the quota scheme suffers from legal challenges as well, as European Union members were always keen in commiting to long-term legal provisions under international human rights and refugee law.
11 European Commission, Annexes accompanying the Proposal for a Council decision establishing provisional measures in
the area of international protection for the benefit of Italy, Greece and Hungary, COM(2015) 451, Brussels, 9.9.2015. The distribution key covers only Italy and Greece and leaves out Hungary which was part of the original Commission proposal.
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Being signatories to the 1951 Convention relating to the Status of Refugees and the subsequent Protocol, members of the European Union have specific obligations to provide protection from persecution and harm. In addition they have the obligation to grant refugees housing, education, access to the judicial system, the legal right to work and protect them from judicial punishment for entering a country in an illegal way (Gilbert 2015 pg. 3). In the 90s when the Soviet Union and the Eastern Bloc countries still existed, it was not considered a major priority to develop an effective way to tackle migration because of the restrictive nature of authoritarian regimes. As such the Dublin Convention had the sole role of ’’preventing a situation were a failed claim in one EU state would result in the refugee applying in another EU state and, if that claim also failed, being sent back to the previous member state.’’ (Op Cit.). Evidently the current situation does not permit such a resolve as the massive influx of refugees has delivered a powerfull blow to the effectiveness of the Dublin Regulations.
These facts constitute one of the main reasons why the Commission proposed and created the relocation mechanism. If the Dublin Convention would still be in place, it would face legal and practical obstacles as it would rival the provisions set in the 1951 Convention Relating to the Status of Refugees12 and the European Convention on Human Rights13.
Henceforward, the Commission emphasized in the EU Agenda on Migration14 that the Dublin system is not working as it should (EU Agenda on Migration 2015, pg. 13). This crisis has revealed that the current legal framework on the EU asylum policies is simply ineffective in terms of structural capacity of the Union’s migration policy and the legal tools at its disposal. The international legal framework for refugee law is comprised by international legal instruments, case law, customary international law and guidelines. The backbone of international refugee law is comprised by the Convention relating to the status of refugees and its additional Protocol. These two regulatory frameworks also act complementary with other legal tools such as the ’’The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’’, as well as with customary international law, that protects individuals from refoulement15.
12The Convention Relating to the Status of Refugees does not require persons fleeing to seek refugee status in the first safe
country. Everyone that arrives onto the territory of a state party to the Convention can seek protection there.
13Even if the Dublin procedures admits for return to the point of first state of entry, that cannot be the case if it would infringe
on the applicant rights (inhumane or degrading treatment). The conditions in some of the receiving facilities are so poor that they would not amount to the desired standards and provisions set forth in the European Convention on Human Rights (ECHR).
14European Union’s Agenda on Migration represents the legal, functional and financial guidebook on how to deal with matters
relating to migration.
15 Refoulement is the involuntary return of individuals to a place where he or she may face serious abuse (Article 33 (1), 1951
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Refoulement is a customary international principle that binds international actors and all states (Hirsi Jamaa and Others v Italy).
The UNHCR is the guardian that oversees that these two legal frameworks are not infringed by states. However, a major problem arises from the fact that for signatory states it is not obligatory to participate in resettlement plans or programmes as states sometimes do not offer resettlement plans or they simply choose their own arrangement (UNHCR Resettlement Handbook 2011). In that regard, UNHCR tries to make continuous efforts to encourage countries so that they may offer more resettlement slots and thus increasing the awareness about sharing the responsibility with refugee-hosting countries (Ibid). Yet, one of the problems international law faces in regards to refugees, is the impossibility of the refugees to legally enter a state and claim asylum. As a consequence to that, refugees usualy are forced by the desperate situation they find themselves into the position, to undertake risky sea voyages or long exhausting marches through unsafe territories until they illegally enter a safe country where their asylum request can be processed. However, when discussing about indicting an asylant seeker for illegal entry, a failsafe that protects against it can be found in the Convention relating to the status of refugees states16. The Convention enunciates that states shall not punish illegal entries and asylum claims. In addition it provisions that detention of asylum seekers should be an exceptional and legal justifiable measure. It is not yet clear what a legal and justifiable measure is, but considering the scale of the crisis together with terror threats accross Europe, it is of common sense to assert that some EU member states make use of legal language to implement their own measures and decisions. As a reiteration of the above, I am refering to some measures such as extended security background checks and systematic interviews in tranzit zones or refugee camps.
In close connnection with the international legal framework pertaining refugees, the European Union applies the legal framework in close relation with the fact that EU members are parties to the relevant international conventions mentioned above, as well as on matters of customary international law such as the non-refoulement principle.
Refugee protection inside EU borders is regulated by three pillars that sometimes conflict and overlap with each other. One is the Council of Europe legal framework which essentially comprise an ammount of provisions of the European Convention on Human Rights (ECHR) and case law of the European Court of Human Rights. These institutions ensure protection from
16 Article 31 provisions that the contracting states shall not impose penalties, on account of their illegal entry or presence, on
refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
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refoulement and were adopted by all member states as well as many provisions from the ECHRapply to non-Europeans under Article 3117 of the ECHR. If a violation occurs then the European Court of Human Rights can settle disputes arising from asylum and protection issues. The second pillar of European refugee law is the EU legal system. This system has its base on the Charther of Fundamental Rights of the EU and relevant asylum regulations and directives. In addition the Convention relating to the status of refugees and its additional Protocol are also incorporated into European Law in the Treaty on the Functioning of the European Union (TFEU)18. The EU took these already established international institutions and laws and incorporated them into European law, making them binding on EU institutions and member states.
The European Charter of Human Rights constitutes the first legal instrument to create a legal framework so that refugees may profit from international protection and from the right of asylum in Europe, which also includes an explicit prohibition on refoulement. Nonetheless, with all these rights incorporated in the ECHR, it does not create a clear mechanism of legally entering Europe to claim asylum. The right to asylum application is in effect if the individual is inside the European Union or at least at any external border with the EU. Hence, a certain number of problems have arised from these provisions or, I would dare to say, limitations. First, it allows member states to process asylum applications at their borders but permits them to maintain border procedures at a level existing before 2005. Consequently, ECHR provisions that border rejections do not infringe on the non-refoulement clause if the individual is in a safe third country, even if the person has no legal status in that country.
It is also of worth to mention that other European institutions and legal frameworks of relevance regarding the protection of refugees have been established. In regards to that, among the Dublin Regulation, which was discussed above, the European Union created the Common European Asylum System as well as the European Asylum Support Office. These two institutions have the purpose of providing valuable expertise on asylum procedures to member states and help EU states to better cooperate and comply with international institutions and legal procedures in conjunction with refugees. What is more important is that the mandate of the Asylum Support Office includes duties that relate to relocation and resettlement issues. Briefly, the Common European Asylum System (CEAS) and its implementation has resulted in creating various mandatory regulations that safeguard refugee rights.
17Parties must ensure ECHR rights to all persons within their jurisdiction. 18Article 78 of the TFEU and Qualification Directive
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3.3. Functional obstacles, practical and legal issues of the quota plan
Regarding the functional nature of the mechanism, the first report of the European Commission (European Commission Report 2016) discovered that as refugee flows will continue in 2016, only 937 people have been relocated from Italy and Greece. As the report specifies, this low level of implementation is due to many factors such as ’’lack of political will of member States to deliver in full and timely manner on their legal obligations to relocate’’ (Ibid.), keeping a status-quo that is counter productive to relocation and resettling efforts. For example France, which is a major recipient of refugees from Italy and Greece, has encountered problems in relocating refugees despite having housing capacity for thousands of refugees (Euractiv 2016). While refugee hotspots collaps, the refugees are facing the decision to choose between a slugish and restricting processing system or to simply move to a more appealing EU country such as Germany or Sweeden (Ibid.).
The report also highlighted some obstacles that stand in the way of implementing the relocation and resettlement19 system. Just to quickly highlight the important ones, the Commission reported that an insufficient and limited number of pledges is insufficient to meet the minimum requirements under the Decisions on relocation as only 18 member States have pledged to relocate from Greece and 19 from Italy. The incorrect use of preferences by members ,meaning that receiveing states have expressed a ’’long or constraining lists of preferences for the profile of the applicants to be relocated’’(Ibid.)20. Obstacles regarding
security checks such as the exchange of fingerprint data21, referring to the fact that it takes too long to process applicants form a security point of view, which with more refugees arriving in Europe by each day is a reality that makes the application process sluggish. What is more interesting is the fact that many because members don’t actually know or they simply do it in bad faith they actually infringe on the Council Decisions. On this particular issue the report findings illustrate that some countries of rellocation have requested ‚’’systematic interviews to assess wheter the applicant would fall under the rejection grounds of the Council Decision’’ (Op cit.) or have ’’repeatedly requested the fingerprints of applicants obtained as necessary to carry out security checks’’ (Op cit.), both actions not beingin the spirit of the Decision.
19The European Commission defines resettlement as the process where, at the request from UNHCR based on a person’s need
for international protection, third country nationals or stateless persons are transferred from a third country to a Member State where they are permitted to reside with refugee status or a status which offers the same rights and benefits under national and Community law as refugee status.
20The reports mentions that the majority of member states use the preferences as a means to exclude possible candidates rather
than to allow for a better matching process for better integration.
21 Since the Paris attacks in November 2015, some EU states wish take additional precautions as wanting to conduct security
20
Another faulty factor that renders the mechanism ineffective is the unjustified rejections of relocation requests. States have used ‚’’a general reference to national security, public order or application of the exclusion provisions to rejects applications without providing specific justification’’. The Commission deemed this practice as ’’not in line’’ with the Council Decisions and contrary tot the spirit of cooperation and solidarity.
The report does not point fingers at specific EU countries, but it would be interesting to know which member state has these types of behaviors, to better understand more about the political dynamics and the rift between ’’West vs East’’. In this particular case it looks as if state rhetoric and matterial objections to the relocation mechanism from countries such as Slovakia and Hungary have weakened the resolve of this measure.
Concluding this subsection of this chapter, the EU Commision has set clear targets for members, taking into consideration their capacity to absorb, accommodate and integrate applicants. But even if the Commission has successfully managed to make the question of solidarity inside the EU a main theme in the political debates, it is not yet clear how things will unfold under this emergency scheme, so that finally EU states may reach a much desired permant mechanism that will serve as a ’’user friendly guidebook’’ for future matters pertaining to refugees. But what it is clear is that before a consensus is reached among member states, the current emergency mecanism does not present itself as an ’user friendly guidebook’. Among many other problems that are very difficult to analyze in just one paper, it lacks the proper funding for the affected states (EU Commission press release 2015) as well as a clear immediate and practical scope. Considering the time consuming nature of the mechanism, it is also not clear in practice how many applicants would eventually be relocated under these schemes. Even if the mechanism is ambitious in its desire to unburden Italy and Greece, the plan is abysmall when considering the number of refugees that will be relocated as it will quickly be replenished by new refugees that will enter Europe space illegaly. Additionally the plan only applies to Iraqis, Eritreans and Syrians, which consitute only a small part of the population that requested asylum in Italy or in Greece (Eurostat 2015).
Further on in the next subsection I will dive into more details about the international refugee legal framework.
As for matters pertaining relocation, the European Union does not have much experience. In 2009-2013, the EU has started the Pilot Project EU Relocation Malta (EUREMA) that had the objective of relocating refugees from Malta to other EU countries under the principle of solidarity. However, the project has not achieved its much desired effectiveness, as only a
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couple of countries, agreed to participate in this programme. The rest, for instance, have decided to negociate their own relocation agreements directly with Malta.
This situations alone shows that there were contrasting views about relocation programmes even before the refugee crisis intensified. Alas, the EUREMA scheme was an ambitious programme that only had modest resultsbecauseonly a small number of asylum seekers have been relocated under itin the course of four years (EASOReport 2012). Considering thatthis first relocation exercise hasfaced difficulties in relocating less than a thousand persons from Malta in almost four years, it is really hard to fathom how these two Decisions will manage to relocate 160.000 people intwo years.
In regards to the present relocation policy of the crisis I would point out that its objectives are partially valid from the legal point of view. They are based on the solidarity principle provisioned in the Treaty for the Functioning of the European Union (Art. 80) and in the burden-sharing principle between member States. These principles are provisioned in international asylum regulations such as the Geneva Convention on refugees as well as on other relevant international laws (Peers 2015). Anyhow, this policy does manage to relieve some of the pressure upon Italy and Greece. But in spite of such relief, considering more refugees arrive each day, surprasing the number that already await relocation (Ibid.)
,
the emergency mechanism might prove sterile at this moment.Progressing further with the analysis, the core problem of the relocation system does not pertain to what it wishes to achieve, but rather resides in its current results, in what it doesn’t achieve. And what it does not achieve is an adequate level of protection of human rights for refugees in the first countries of entry as well as in the relocation countries. In addition it also produces great infringements of European laws. Thus I have identified important elements that pertain to the practical and legal nature as to why the current quota system is unfair and non-compatible with current European laws.
For instance practical elements may pertain to the current general reception conditions. In this regard while refugees wait to be relocated under the emergency scheme they are practically trapped in poor humanitarian as the actual reception of asylum seekers in Europe is failing common humanitarian standards. In a report (Amnesty International reports2016) regarding the current reception conditions in Greece, the estimated number of people that are prohibited to move to other EU countries is 46.141, with 31 official acommodations that has a capacity of 33.640. Because of the subpar reception capacity, according to the United Nations High Commissioner for Refugees, thereception and humanitarian conditions for asylum applicants
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in Greece are considered insufficient and below the standards of the European Union22. Amnesty International also reports that in one of the camps on the Greek border with Macedonia the situation is desperate. Additionally during the winter, large numbers of refugees, including families with small children and people with disabilities, have been camping out in the open. Humanitarian assistance efforts such as shelter, food or medical care werealso low or underfunded (Ibid.).
What is more impacting is the fact that these situations are not managed as they should be. For example, in some closed centers the police has failed to protect people during incidents of violence as fights are a daily occurence in some of the camps (Human Rights Watch Report 2016). Another example of mismanagement pertains to the general lack of available information. Basically what this means is that people who arrived illegally usually do not consistently receive relevant information about their situation.Once arrived on Greek shores, people lacked acces to quality information regarding their rights and obligation, on the right to claim asylum, and most importantly about thepossibility to be relocated under the relocation scheme.In addition since from the beggining of their arrival refugees are being detained for proccessing purposes.
When being detained refugees have the right to promptly and properly be informed of the nature of their detention and the reasons for it, sanctioned by Article 5.2 ECHR. In practice this process of informing asylum-seekers does not take place on a regular basis as interviews23 conducted on a group of refugees have shown that only a part of them have been provided with information about the relocation scheme.
In Italy the situations presents itself more or less the same as the one in Greece. The reception system for arrived refugees has been put under great strain as NGOs have frequently indicated the shorcomings of the reception system in Italy.As a consequence to thesesubpar humanitarian conditionsthe organization has decided to end its medical support in one of the centers as a sign of protest (Doctors Without Borders Report 2016).
Reception centers in Italy also suffer from the same lack of funding and infrastrucure as those of Greece: from lack of medical care facilities to lack of decent separate accommodations for men and women or families with childreen.
22 United Nations High Commisioner for Refugees, Greece as a country of asylum: UNHCR observations on the current
situation of asylum in Greece, December 2014
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I am also inferring that the emergency mechanism creates a caustic situation where the refugees are trapped inside of a country they do not want to be in, in poor health and without being provided systematic quality information and security conditions.
Secondly from a legal point of view the ECHR establish that member states have the obligation to protect all persons within a state’s juridisction24, which the relocation scheme fails to do, as was the case in Greece where police did not provide security for people trapped in camps or refugee hotspots25. Moreover ECHR establishes that reception conditions must be at a level that will not infringe on the minimum level of humanitarian standards.
Consequently one of the most important provisions that is broken is the one refering to the obligation of member states to guarantee proper reception conditions in accordance with International standards. Currently that obligation is not respected as some third country nationals are held in reception centers deprived of their liberty, lacking adequate conditions and access to medical care and food.
As a result to the above issues, a problem that has emerged during this crisis pertains to the detention of refugees under innappropiate conditions. This consists a grave violation of the right to liberty from ECHR’s point of view. Furthermore, the EU has used detention as an accommodation policy. It is important to highlight that reception and detention of refugees are separate legal issues, but in practice these two are only separated by a very thin line. One pertains to detention as an exceptional legal measure such as arests of refugees and the other refers to reception as a procedural measure to process asylum applications, which is of a lesser extent. In our case however, because of the massive influx of asylum-seekers, the EU has used detention as an accommodotation strategy. As one author (Mouzourakis 2016) puts it, ’’blurred boundaries have led to asylum-seekers being de facto deprived of their liberty in tranzit zone at the border’’ (Op cit.), as well as the fact that ’’asylum-seekers have found themselves in a state of detention’’ (Op cit.), in Italy and Greece. But the problem with detentions arise when the the freedom of movement is replaced to a deprivation of liberty which is only justified on an exceptional basis26. Appropiately, considering the reasons of detentions in Italy and Greece, it
24 This obligation is provisioned by Article 1 ECHR
25 The refugee hotspot approach is an EU Commission policy to manage exceptional migratory flows. This approach will
contribute to the implementation of the temporary relocation schemes and it was first implemented in Italy and Greece.
26 ECHR Art 5 (1) letters a)-f), provisions the following cases in which deprivation of liberty may exist:
a) The lawful detention of a person after conviction by a competent court;
b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
c) The lawful arrest or detention of a person effected for the purpose bringing him before the competent legal authority on reasonable suspicion on having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
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is clear that the conditions provisioned by Article 5 are not met and simply do not apply in this particular case making these detentions illegal.
Of course one might say that the persons waiting to be relocated have a certain degree of movement. That they are free inside the ’hotspot’, refugee camp, airport terminal or within the territory of an EU state per se. One may even provide the argument that they are not being locked in a cell and that they are more or less free in their movements. But deprivation does not only mean being locked in a prison cell (Soyler et al. pg. 14). The European Court of Human Rights has made the distinction between deprivation and a limitation of freedom in the Guzzardi v. Italy case (Ibid.). Mr. Guzzardi was not being detained in a traditional cell but on an island under close observation, where he was permited to leave his residence between 7 a.m. and 10 p.m., and where he had the obligation to report twice a day. In addition he was not provided with the means having to get the proper contact with anything outside the island (Ibid.). In this particular matter, considering all the factors and conditions under which Mr. Guzzardi was detained, the Court has reached the conclusion that the combination of all these factors represent in fact a deprivation of liberty. It further on stated that when determining if someone has being deprived of its liberty, under the provisions of Article 5, an evaluation of the person’s conditions is necesary and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure at hand (Ibid.). As a deduction, the degree of intensity of some measures are those that clarify if the measure is perceived as a deprivation or restriction of liberty.
Restating the argument that current detentions in hotspots together with other rallying and processing refugee points are illegal from ECHR’s point of view, corroborated with the fact that, even if detention of refugees would have been legal it would still violate other mandatory conditions, I am going to reject the consequentialist view of the idea that ’’the end justifies the means’’. Even if the goal of relocation is morally sufficient for solving the current crisis, the insufficient means in which it is carried out should not be morally and legally accepted. To submit a large number of people which where already afflicted by war, poverty and punishments for which they originaly left their homes, it is not in accordance with European values and principles. So in principle, the idea of a temporary relocation and resettlement scheme is praisworthy. Even partially legal I would say if we restate the solidarity principle.
e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition
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But, considering the ammount of non-compliance cases with international and EU laws and regulations, both its functionality and execution are flawed.
Concluding, even if the mechanism is theoretically partial compliant with international and EU law, if both its functionality and procedure are of improper use, then the mechanism is unfair because it creates negative effects for the refugees. Effects that are contrary to what the mechanism wishes to achieve as in the end they breach the laws and regulations of the European Union.
The complexity of the above presented situation does not paint a good picture of the relocation mechanism. Among other relevant problems, the slow bureaucratic implementation and execution of the system results in extending the ordeal of asylum applicants, offering member states the possibility to breach human rights and indirectly contributing to their plight.
Hence the dichotomous characteristic of the mechanism, both partially legal27 and unfair, makes me reminisceon the example that I have provided before this chapter. A law can be just, and at the same time by the manner in which it is executed thus by its result, can be also unfair. In this case the relocation mechanism has a legal core based on the principles of solidarity and burden sharing. But its practical dimension is not just because it generates the aforestated humanitarian contexts. Accordingly I would dare to say that this analogy has quite a strong foundation under the given functional and legal arguments that I have provided.
3.4 Alternative views on the solution
Before the temporary distributional mechanism was being proposed and debated, there were other proposals being made regarding the solutions to the European refugee crisis. As the current European Union’s decision making process has been blocked due to oppositionregarding EU’s relocation scheme, the next subsections will present other alternative solutions: the matching system which represent a market-like mechanism that is based on either refugee preference and member state preference; tradable refugee-admission quota
system where refugee quotas are traded; 3.4.1.The matching mechanism
The two-sided matching theoretical model is represented by a market-like system in which the refugees choses its own country where he or she wishes to apply and where the state makes
27 I am describing the current relocation plan as partially legal because it has its legal base on the solidarity and burden sharing
principles privisioned by European law. However a law cannot be in fact considered just if it cannot be applied correctly, especially when the application of such a law would result in ’material breaches’ of other laws.
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similar preferences. It is of worth to mention that this theory is different from the tradable quota system. In fact, the matching theory only wishes to allocate refugees as efficiently as possible, based on their need of protection and state preference with no actually real buying and selling of quotas (JonesW; Teytelboym A). In comparison with the tradable system, some champions of this proposed solution argue that trading refugees or buying and seeling them is morally repugnant because it lead to a low level of protection (Jones W; Anker et Al.)
Jones and Teytelboym, propose this system as barrier for protecting refugees and where states can easily manage the burden-sharing responsibility. They argue that the way in which refugees can be matched with countries is the same as the way in which doctors are allocated to hospitals, students to schools or donor organs to patients (Ibid.). It can more or less be compared with a dating application and furthermore be described as the ’’Tinder of the asylum system’’ where a matching algorithm would allow refugees and states to ’’swipe left’’ for ’’no’’or’’swipe right’’ for ’’yes’’. If from a multitude of ranked preferences, state A picks person B and if person B picks state A, then a match occurs and both A and B can proceed in entering into an asylum agreement that is beneficial for both parties.
In addition, as preferences go, Jones and Teytelboym go on expressing that ’’states and refugees can submitt their preferences about which refugee they wish to host or which state they want to be relocated in’’(Op. cit.). They even go further suggesting that under this model, refugees can submit their preferences from anywhere without having to take the risk of a perilous journey. Yet I remain restrained in praising the availability to applying from the country of origin, as I am not sure how it will work in practice. Many of the people that apply for asylum originate from war thorn countries in which humanitarian and asylum assistance is kept to a bare minimum or simply non existent. Be that as it may, I will recognise its ’’alleviating’’ properties as it would still constitute a positive measure for refugees based in countries that host large populations of refugees such as Turkey orJordan. For example, if these refugees qualify for asylum in Europe, they can apply from there without risking dangerous sea travels in order to reach Europe.
The proponents of this arrangement, assert that a system of preferences where states and refugees alike reveal their true preferences, can only be beneficial to the scope of the scheme. Following this line of thought, countries will be free on chosing their desired type of refugee, based on criteria compatible with international and EU regulations. In their study, Jones and Teytelboyn (Ibid.) have mentioned that states would be free to rank their preferences differently, no matter if the choice are either discriminative or controversial. But later on in this analysis, these authors contradict their initial claim by stating that ’’states will only be allowed
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to rank refugees based on criteria which are compatible with the principles and goals of the 1951 Convention, or any other set of principles’’ (Op cit). From this statement it can be inferred tha states in fact do have a certain degree of freedom when ranking refugees but not too much , as the Convention regulates most of the activities regarding the status of refugees.
As for the refugees, they will have the same variety of preferences based either on wheter they would feel safe in the recipient country, or where members of their family currently reside. Concluding, this theoretical model, Jones admits that his proposed solution does not constitute the only or complete solution to the issues the EU seeks to resolve (Ibid.). He further on concludes that it is just ’’a substantive improvement on the status-quo within the constrains of the politicaly palatable, and may give states incentives to relax these contrains’’ (Op cit.). Making a quick observation, I would highlight the fact that in comparisson to the classic ’’tradable-quotas’’ system, the matching mechanism aspires to improve the effort for the protection of refugees without having to fund these efforts. Hence too much importance is given to the resource argument. In my view the resource perspective is being overly debated because the European Union is already abundent with resources of any kind, hence it does not have a resource problem but rather a ’’lack of political will’’ problem. This however does not mean that the low costs of such a system is not important as, like Jones argued, it could constitute an extra incentive for member States that are against taking in refugees and thus having an important effect on the political will.
3.4.2. A tradable Refugee-Admission Quota System
The concept of tradable refugee-admission system was first proposed by (Schuck 2007). What this system basically entails is that it allows member states to purchase or sell quotas of refugees that have been previously approved and assigned to them through a collectivised status-determination process (Kuosmanen 2013). His proposal was based on the idea that the tradable quota scheme could function as a guideline for states on providing protection to persons that the Convention Relation to the Status of Refugees recognises as eligible for the asylum procedure. Moreover, it could also serve as a type of burden-sharing responsibility and provide increased incentives to propagate the idea of solidarity among member states. More than a decade later, in an op-ed (New York Times 2015), Shuck has proposed the creation and regulation of a market in which states can buy and sell part of their quota obligations. He argues that ’’just as cap-and-trade schemes enhance environmental protection, this market would maximize the number of refugees protected by exploiting differences in states’ resources, politics, geography and attitudes toward newcomers’’(Op cit.) and that ’’a more xenophobic
