Migration: the relocation scheme EU

The relocation scheme: a success or a failure story?

Haya DAHER

According to the Dublin Regulation, people applying for asylum in the EU must do it in the first Member State of arrival. Thus, Greece, as an example, have become responsible for 850 000 refugees in 2015 arriving especially from Syria; noting that Greece was suffering from the effect of austerity measures following the economic crisis since 2010. In addition, it is known that Greece suffers from limited reception facilities and a flawed asylum process. Thereafter, European leaders have seen the necessity to act quickly in the form of a relocation scheme.

Relocation means distributing refugees arriving to the EU and in need of international protection between EU Member States, as an expression of solidarity between them^[1]. It was agreed in the initial scheme, on July 2018, that 40 000 persons would be relocated from Italy and Greece, it was increased to 120 000 in September 2015 through decision 2015/1523 and the decision 2015/1601 added 40 000 more persons (160 000 in total)^[2]. Distribution between Member States was calculated through quantifiable and objective criteria with a priority to people considered as vulnerable^[3]. It ended in September 2017 but the obligations to relocate the numbers already set go beyond that date. Asylum seekers claim asylum in the state where they are fingerprinted and then are relocated. The decisions dismiss the seekers’ choices of country of relocation (for family or cultural ties for example), they respect international standards but don’t consider personal and human dimensions.

Was the relocation scheme in the EU a failure?

I will look first into the total and final numbers of relocated persons in the EU while comparing them to the initial targets set. Through the analysis, I will consider political and legal constraints that appeared. Afterwards, I will reflect on the degree of success of the relocation since some observers consider it a failure while the EU Commission does not agree.

1. The results of the relocation plan

A big part of the debate on the relocation scheme is related to numbers. Since its beginning in October 2015, relocation was slow. Few hundred people were moved from Greece and Italy in the first months while thousands were arriving to Europe each day^[4]. By March 2016, 937 persons have been relocated, after six months under the relocation scheme. During 2016, the relocation remained limited and by the end of it, only 8162 persons were relocated.

In July 2017, two months before the scheduled end of the process, the figures exposed by the EU Commission shows a slight increase in relocation numbers since the beginning of 2017. The relocation went up to 24092 with 16477 from Greece and 7615 from Italy^[5]. The progress made was heralded by the Commission but the frustration was still there. It stated that under article 258 of the TFEU, it is prepared to launch infringement proceedings and that legal obligation of relocation (the numbers already set) will not end after September for the eligible people. Infringement procedures have been launched against Poland, Hungary and Czech Republic that didn’t comply at all. By April 2018, 21999 persons were relocated from Greece and 12614 from Italy^[6].

Germany has taken 6738 refugees until July 2017 which represents a third of the relocations and many countries have totally refused to welcome refugees. From the beginning, Denmark, Ireland and UK opted out and Poland and Hungary didn’t fulfil their duties. Moreover, among the 2691 relocations agreed on, the Czech Republic only relocated 12 refugees. Only, Finland and Malta fulfilled the numbers requested by September 2017^[7].

These numbers clearly reflect a troubled relocation that did not reach its goals, which questioned the mechanism of burden-sharing in the EU. It could be considered that relocation failed to meet its promises because of problems of refugees’ recognition, inadequate facilities to identify, inform, process and transfer applicants as well as security concerns expressed by countries. However, it is mainly important to look at what went wrong through the legal and political constraints faced during the process.  

1. The Courts role: the legal constraints

The Mandatory Plan to relocate refugees faced challenges at the level of the EU Court of Justice. On December 14, 2015 some EU Members States like Slovakia, Romania, Hungary and Czech Republic heavily criticised the EU’s relocation plan^[8]. Some countries criticized the plan but endorsed it regardless and others like Romania voted against the plan without further action. According to Luisa Chiodi, the non-respect of the Council relocation decisions could represent a “very dangerous precedent in terms of disregard of the rule of law”. However, she considered that the legal actions of Slovakia and Hungary reflects at first an expression of “a commitment to the rule of law” instead of a simple refusal to comply^[9]. The Slovak/Hungarian and the Dutch cases could be taken as significant examples and poses questions on the significance of the pledged numbers.

Hungary and Slovakia showed clear preference to Christians from Syria and on December 2 of 2015, Slovakia started a legal action to annul the Council decisions (Slovakia v Council, Case C-643/15). Slovakia considered that the plan is “nonsensical and technically impossible.”^[10] Slovakia mainly invoked the infringement of certain fundamental principles like: represented democracy, legal certainty, proportionality, institutional balance and sound administration^[11]. Two days later, Hungary followed Slovakia through a similar lawsuit with similar pleas (Hungary v Council, Case C-647/15), its Prime Minister considered the refugees as a threat^[12].  Hungary considered that EU decision cannot be considered as a provisional measure but more a legislative act, that doesn’t have a legal basis, considering that article 78(3) of TFEU is not an adequate basis to opt the decision by the Council. The CJEU decided to refuse annulling the relocation scheme^[13]. Slovak and Hungarian arguments have been analysed by some scholars that demonstrated the validity of the decision of the court, considering the political backgrounds and the procedural choices.