Content

Andrea Romano, Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 71 - 86

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-71

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality Andrea Romano* Introduction Antagonism among Member States in the field of migration and asylum is any‐ thing but new, characterising, as it did, the acquisition and ensuing enhancement of EU competences in those areas.1 Yet, it has taken on a new and crucial role in the context of the debates on the potential disintegration of the EU project. It has become apparent that migration-related topics entail certain disruptive potential, and the frequency with which Member States invoke the argument of constitu‐ tional or national identity in order to shield themselves from the application of the EU law can be taken as a clear sign of this process.2 The way in which the topic of this conference – ‘Integration and Disintegration in Europe’ – interacts with the questions of migration and asylum can be explored in many ways. In this paper, it will be argued that the response to the 2015 migration and refugee crisis has not only questioned the capacity of the EU to manage transnational mobility from outside and within Europe; it has had far-reaching consequences, triggering a regression that undermines one of the milestones of EU integration – its territoriality. To that end, some features of the EU territoriality will be outlined (II). Next, the paper will focus on how the current fraught interaction between Schengen and Dublin – exemplified by the need to reinstate border control in an effort to impede secondary movements and confront the terrorist threat – is undercutting the integrity of the territoriality of the EU (III). Last, some actions that might I. * Phd, Sapienza University of Rome. 1 For an overview of the Europeanization process in this area see Jürgen Bast, Ursprünge der Europäisierung des Migrationsrechts in: Jochum et al. (ed.), Grenzüberschreitendes Recht – Crossing Frontiers: Festschrift für Kay Hailbronner, 2013, p. 3 et seq.. 2 On the nexus between constitutional identity and migration see Gábor Halmai, The Hungar‐ ian Constitutional Court and Constitutional Identity, https://verfassungsblog.de/the-hungaria n-constitutional-court-and-constitutional-identity, last accessed 30 October 2018; ECJ, Judgment of 6 September 2017 – Case C-643/15 and C-647/15, Slovakia and Hungary v Council, ECLI:EU:C:2017:631, spec. para. 302; the argument of constitutional identity in order to prevent the application of EU law has also been invoked a following case: see ECJ, Opinion of Advocate General, para. 122. Generally on the issue of constitutional identity see Pietro Faraguna, Constitutional identity in the EU – A Shield or a Sword, in: German Law Journal, 18 (2017), p. 1617 et seq.. 71 counteract the destabilising potential characterising current approaches to migra‐ tion and asylum will be advanced (IV), before some final remarks putting the EU territoriality in perspective with the disharmonised asylum systems in the inter‐ national protection procedure carried out by asylum decision-makers (V). The rise and fall of the EU territoriality In a manner that brings to mind other constitutional concepts – such as citizen‐ ship – the evolution of the EU integration has had very real repercussions on the notions of borders and territory,3 particularly through the incorporation of the Schengen acquis into EU law. Since the Treaty of Amsterdam, Schengen has be‐ come one of the essential features of the EU itself, acquiring a profoundly sym‐ bolic power. It is worth mentioning that this symbolic nature of borders and terri‐ tory dates back to the birth of modern states in Europe, which meant a “paradigm shift”4 in the nature and functions of borders. Historians have extensively shown that the birth of modern state borders gradually brought about a spatial turn from the “frontière-zone” – i.e. a border region or area not clearly defined – to the “frontière-ligne”, a clear sign that distinguished one state from another.5 It fol‐ lows that border linearity represents a modern achievement, essentially hitched with the need of modern states to define the exact point to which their sovereign‐ ty ends, with borders therefore representing a “territorial projection” of sovereignty.6 The construction of an area without internal border control among EU States thus comes as a new chapter in the constitutional history of borders and territory, enabling us to consider the progressive configuration of an EU territoriality. The latter is characterised “externally” by the existence of an integrated management system for external borders,7 and internally as an area without internal border control.8 Cross-border mobility within this EU territoriality is the result of a compound apparatus, where three intertwined systems interact with each other. II. 3 On the concept of territory in the EU see Jacques Ziller, The European Union and the Ter‐ ritorial Scope of European Territories, in: Victoria Univesity of Wellington Law Review, 38 (2007), p. 51 ff. 4 Daniel E. Kahn, Die deutschen Staatsgrenzen, 2004, p. 12. 5 The literature on this aspect is extensive: see Paul Guichonet / Claude Raffestin, Géogra‐ phie des frontières, 1974, p. 5 ff. 6 Klaus Ferdinand Gärditz, Territoriality, Democracy and Borders: A Retrospective on the “Refugee Crisis”, in: German Law Journal, 17 (2016), p. 907; Anuscheh Farahat / Nora Markard, Forced Migration Governance: In Search of Sovereignty, in: German Law Jour‐ nal, 17 (2016), p. 923. 7 Article 77, 1(c), TFUE. 8 Article 67 TFUE and Regulation 2016/399 (Schengen Borders Code), OJ EU No. L 77/1 of 23.3.2016. Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 72 The first system is the free movement of persons in the EU, as referred to in Arti‐ cle 3(2) TEU and Article 21 TFEU, which sets out the right of EU citizens to move and reside freely within the territory of the Member States. The second system is the Schengen acquis, which comprises a wide array of rules geared to‐ wards ensuring an area where individuals’ freedom of movement between States is guaranteed. The third system is the Dublin Regulation,9 which sets out the rules and criteria that determine which state is responsible for examining an ap‐ plication for international protection. However, this EU territoriality does not resemble the early modern State’s process of territorialisation, as – perhaps similar to EU citizenship – it does not replace but is additional to national territoriality.10 Furthermore, since the out‐ break of the migration crisis, the progressive erosion of the Common European Asylum System and the weaknesses of the Dublin system have paved the way for that territoriality to enter a phase of deep involution. The advancement of EU territorial integration is therefore now challenged by the possibility that EU terri‐ toriality will progressively disintegrate, or that it will endure by virtue of new models of differentiated integration. The nexus between Schengen and Dublin and their controversial coexistence since the 2015 crisis The Dublin and Schengen systems share common historical and regulatory fea‐ tures.11 They are the result of the intergovernmental cooperation on visas, migra‐ tion and asylum that took place in the 80 s and 90 s and they were subsequently communitarized once the Treaty of Amsterdam established EU competence in those areas.12 This shared lineage is crucial to understanding how both systems have worked over time. Indeed, their incorporation into the EU in 1999 notwith‐ standing, they have always retained a sort of intergovernmental character, with governments of Member States maintaining ample margin for manoeuvre. The functioning of Dublin and Schengen is strictly interconnected. The 1990 Dublin Convention was intended to ensure that in an area without internal border control there exists a system of common asylum policies and rules, making it possible to III. 9 Regulation 604/2013, OJ EU No. L 180/31 of 29.6.2013. 10 In this sense see also Jürgen Bast, Völker- und unionsrechtliche Anstöße zur Entterritoria‐ lisierung des Rechts, in: VVDStRL, 76 (2017), p. 278. 11 On the relationship between the two conventions see J.J. Bolten, From Schengen to Dublin: The new Frontiers of refugee law, in: H. Meijers et al., Schengen. Internationalisa‐ tion of central chapters of the law on aliens, refugees, security and the police, 1994, p. 8 ff. 12 For a thorough overview of the EU competence in this area see Daniel Thym, Entry and Border Controls, in: Hailbronner / Thym (eds.), EU Immigration and Asylum Law, 2nd Edition, 2016, p. 31 ff.. Andrea Romano 73 identify one and only one state responsible for each asylum application. Though both systems require the other to operate fully, their coexistence is problematic for two countervailing rationales that characterise them: whereas Schengen aims to enhance free movement of people within its area, the main objective of Dublin is to impede secondary movement, i.e. to contain cross-border movements within the Schengen area. Furthermore, the interplay between the Schengen and Dublin systems needs also to be connected with the wider regulatory framework under‐ pinning the free movement of persons in the EU. Currently, intra-EU mobility of third country nationals is faced with several limitations, and that is relevant and salient as regards current deficiencies of the EU asylum system. For instance, whereas beneficiaries of international protection formally comply with Schengen and Dublin requirements, they are not entitled to enjoy free movement within the EU under the same conditions as EU nationals. The former can move to another Member State only after obtaining the EU long residence permit, i.e. 5 years af‐ ter applying for international protection. And in any case, under Article 79(5) TFEU and secondary legislation Member States retain the power to establish fur‐ ther barriers to limit the entry and stay of beneficiaries of international protection who are in possession of an EU long term residence permit, based on integration criteria and labour-market restrictions. That said, Dublin and Schengen have coexisted peacefully so far. Yet, the combined effect of increased arrivals of migrants and refugees since 2014 and the fear of secondary movements lays the groundwork for an unprecedented phe‐ nomenon to take hold: the massive reinstatement of internal border control for reasons of internal security and public order grounded on the need to contain mi‐ gration flows.13 This has cast doubt on the coexistence of the Schengen and the Dublin systems: as a knock-on effect, the structural and innate gaps of the Dublin rules have had repercussions on the ordinary course of Schengen rules, whose existence has rarely been controversial (excluding some limited Member States tensions). What has become apparent from the crisis is that neither the Schengen system, nor the Dublin system is properly equipped to face sudden turmoil, the 13 Galina Cornelisse, What’s Wrong with Schengen? Border Disputes and the Nature of In‐ tegration in the Area Without Internal Borders”, in: Common Market Law Review, Vol. 51, No. 3, 2014, p. 741; Maartje Van der Woude & Patrick Van Berlo, Crimmigration at the Internal Borders of Europe? Examining the Schengen Governance Package, in: Utrecth Law Review, 1 (2015), p. 61 (p. 76); Andrea Romano, La rinascita delle frontiere interne: il declino (irreversibile?) di Schengen, in: Savino, La crisi migratoria fra Italia e Unione europea: diagnosi e prospettive, 2017, p. 249 (p. 262). Chiara Favilli, La politica dell’Unione in materia di immigrazione e asilo tra carenze strutturali e antagonismo tra gli Stati membri in: Quaderni costituzionali 2 (2018), p. 367. Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 74 former affording Member States too much discretionary power, and the latter re‐ vealing itself to be unfair, a fact which is exacerbated by the current crisis.14 As we already know, Member States agreed to establish an area without bor‐ der control on the condition that border checks could be reintroduced temporarily in three circumstances, provided for in Chapter II of the Schengen Borders Code (SBC).15 First, under Article 25 SBC, States may reactivate border control for ei‐ ther foreseeable or unforeseeable events, i.e. when a threat of internal security and public policy arises and second, under Article 28 SBC, for the same reasons where there exists a situation that requires an immediate action. Third – because of the 2013 amendment – under Article 29 SBC in exceptional circumstances, where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border con‐ trol and insofar as those circumstances constitute a serious threat to public policy or internal security, the Council can recommend that Member States reintroduce border control for up to two years. Since the onset of the migration crisis, relevant new features tied to the appli‐ cation of the Schengen Borders Code can be detected.16 The first new feature is that in 2015 we experienced for the first time a wave of Schengen “exceptions”, with several Schengen States almost contemporaneously reintroducing border control and triggering a domino effect. Starting from September 2015, internal border controls have been reintroduced and then extended in Germany, Austria, Sweden, Slovenia, Denmark, Norway, Hungary, Malta and France.17 Due to the subsequent application of Article 25 and Article 29 SBC, between 2015 and the time of writing (July 2018) internal border controls have been prolonged or rein‐ stated in some of the above-mentioned countries many times, with the effect of a chain reintroduction of border controls, leaving the Schengen area in a perma‐ nent “state of exception” regime. The second feature is that in the context of the general reinstatement of inter‐ nal border controls in 2015/2016, Member States justified their measures by claiming a serious threat to their public policy and internal security arising as an unexpected consequence of the sheer flow of migrants and refugees not regis‐ 14 For a conceptual study on the scope and significance of the crisis linked to the EU integra‐ tion see Augustín José Menéndez, The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration, in: European Law Journal, 22 (2016), p. 388 ff.. 15 Kees Groenendijk, Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom?, in: European Law Journal, 10 (2004), p. 150. 16 Steve Peers, The Future of the Schengen System, http://www.sieps.se/en/publications/2013 /the-future-of-the-schengen-system-20136, last accessed 27 October 2018. 17 All the data containing the reintroduction and prolongation of internal border checks in the mentioned States are available at the website of the European Council, http://www.consiliu m.europa.eu/register/en/content/int/?lang=EN&typ=ADV, last accessed 27 October 2018. Andrea Romano 75 tered in their first EU State of arrival. That was an absolute novelty, as in the past internal border controls were rarely reinstated and in any case, when they were, this almost exclusively entailed non-migration-related purposes (G8, internation‐ al meetings, and so on). Moreover, that clashes with Recital No. 26 of the SBC, which states “Migration and the crossing of external borders by a large number of third-country nationals should not, per se, be considered to be a threat to pub‐ lic policy or internal security”. The third feature to highlight is perhaps the response of EU institutions. First of all, the Commission has not only limited itself to confirming that the excep‐ tions to the ordinary Schengen regime are in line with the SBC, but has affirmed their necessity as measures required to maintain the Schengen system: Although in 2013 the legislators agreed that migratory flows cannot per se justify the reintroduction of checks at internal borders, the Commission takes the view that the uncontrolled influx of high numbers of undocumented or inadequately documented persons, not registered upon their first entry to the EU, may constitute a serious threat to public policy and internal security and thus may justify the application of this ex‐ traordinary measure available under the SBC. Later, the need to retain the exceptional regime of the Schengen area was also upheld by the EU Council. When the time-frame for the temporary reintroduc‐ tion of border control provided for under Article 25 SBC expired, the EU Coun‐ cil adopted a recommendation under Article 29 SBC so that Austria, Denmark, Germany and Sweden could reinstate border control for an additional period of 6 months. When that period too expired in May 2018, those States reactivated bor‐ der control anew, this time under Article 25 SBC. Lastly, in the proposal of September 2017, the Commission proposed several changes to the Schengen rules, trying to combine two countervailing interests. On the one hand, it accom‐ modated national interests and thus “legalise[d] current illegal practice of Mem‐ ber States” – in the words of the Rapporteur of the EU Parliament – by establish‐ ing an extended period for border control reinstatement. On the other hand, it made a case for the EU by introducing new procedural rules dedicated to enhanc‐ ing the assessment of border control reinstatement as a last resort measure. In sum, the reaction of the Commission and the EU Council, including the proposed changes to the SBC, seems to be the following: the message is that faced with the progressive erosion of the Schengen rules, but also aware that such erosion might give way to a disintegration of the Schengen acquis, EU in‐ stitutions opt for a cautious and accommodating approach. Yet, rather than ame‐ liorate the controversial relationship between Dublin and Schengen, this seems to aggravate it. Contrary to those proposals, it may be useful to recall that in 2011 the Commission's proposed centralisation of decisions on the reintroduction of border control would have helped to neutralize the current political conflict and to avoid the domino effect in the reactivation of border control. This aspect has Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 76 regrettably disappeared from the political debate. Further, the above-mentioned approach once again confirms what was stated at the outset, i.e. the prevalence of the national and intergovernmental nature of the Schengen acquis, which rests in the hands of national Governments and is not subject to any parliamentary con‐ trol. Three ways ahead: Dublin criteria, free movement for beneficiaries of international protection and legal pathways to reach the EU Alongside the intervention on the SBC, EU asylum action follows and persists on a rationale of containment. Yet, it has become clear that the mechanical and automatic logic of the Dublin system – which holds that the first State of arrival is the country responsible for processing asylum applications – does not guaran‐ tee that rationale and in fact generates a counterproductive effect. It is not easy to systemize the factors that drive secondary movements;18 there can be little doubt that a portion of them can be partially explained by some of the Common Euro‐ pean Asylum System's most prominent weaknesses.19 The incentives that might lead asylum seekers to move from one State to another include the existence of family, social, or work ties that are not considered by Dublin rules for determin‐ ing the responsible State (in the case of unaccompanied minors they are consid‐ ered only to a limited degree). Another relevant problem concerns the different recognition rates of asylum claims among EU countries – mainly a factor of the national competence on the recognition of asylum claims (so-called asylum lot‐ tery), which may lead asylum seekers to seek asylum in a certain EU country. Further, different reception standards may also have a significant impact, with measures entitling asylum seekers vastly different rights depending on the coun‐ try they stay in pending processing of their asylum application. This is another circumstance caused by the lack of harmonization in asylum seekers and refugees reception conditions. The last factor is the provision that entitles benefi‐ ciaries of international protection, with a permanent resident permit allowing them to circulate freely within the Schengen area only after five years (see infra). Furthermore, we should recall that the Dublin Regulation entrusts individual States with the possibility to correct secondary movements by transferring asy‐ lum seekers to the responsible State: however, such transfers are rare, and non- IV. 18 See on the issue Jan-Paul Brekke & Grete Brochmann, Stuck in Transit: Secondary Mi‐ gration of Asylum Seekers in Europe, National Differences, and the Dublin Regulation, in: Journal of Refugees Studies, 2015, p. 145 ff.. 19 Francesco Maiani, The reform of the Dublin system and the dystopia of “sharing people”, in: Maastricht Journal of European Law, 2017, p. 622 ff. Andrea Romano 77 responsible States will usually process asylum claims that, according to Dublin rules, should have been submitted to other States. In order to counter the disintegration of Schengen, both the Dublin Regulation and the functioning of the CEAS might be improved through several lines of ac‐ tion. Given space limits, three priority actions will be considered here. The first priority is to alleviate the coercive and ineffective nature of Dublin, reforming the criteria under which Member States are responsible for examining applica‐ tions for international protection. In this regard, the recent EU Parliament pro‐ posal includes positive elements, though the possibility that it will be adopted might appear unrealistic. Faced with the proposal of the EU Commission to re‐ form the Dublin Regulation, the Parliament took the view that the so-called “first country of entry rule” should be replaced by a “bold but pragmatic proposal”20 based on incentives that would lead Member States to adopt the new rules. Whilst under the current Dublin system, responsibility for processing asylum ap‐ plications is often determined by seemingly “random” rules, the European Parlia‐ ment proposes to enhance the match between Member States and asylum seek‐ ers, by setting up a system whereby asylum seekers will have their applications examined in the State where they have stronger family, social or other links.21 The second priority is to reduce limitations on intra-EU mobility for benefi‐ ciaries of international protection, limitations which call into question the link between Schengen, Dublin and the free movement of persons in the EU. The rec‐ tification of this underestimated problem might have the fortuitous effect of min‐ imising the risk of secondary movement and may reduce the controversial as‐ pects of the relationship between Dublin and Schengen rules. As we have said, beneficiaries of international protection are allowed to circulate freely and estab‐ lish themselves in another State only after they obtain a long-term resident per‐ mit, which is possible five years after they have applied for international protec‐ tion.22 Actually, the Qualification Directive already enables Member States to this rule: not only must asylum seekers have their applications for asylum pro‐ cessed in the first Dublin country of entry system, but they are “stuck” within that State even when their international protection has been granted for the next 20 European Parliament, Report on the proposal for a regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016)0270 – C8-0173/2016 – 2016/0133(COD), 6 November 2017. 21 Marcello Di Filippo, The allocation of competence in asylum procedure under EU law: the need to take the Dublin bull by the horns, in: Revista de Derecho Comunitario Europeo, 59 (2018), p. 41 ff. 22 This is the result of the extension of the scope of Directive 2003/109 introduced by Direc‐ tive 2011/51, which included the beneficiaries of international protection within the cat‐ egories of third-country nationals that may be granted a long-term residence permit. Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 78 five years. A new legal framework allowing mobility for beneficiaries of interna‐ tional protection could be envisaged by advancing reforms in three areas: first, the possibility of Member States to issue resident permits before the conditions for a long-term residence permit are met; second, the mutual recognition of posi‐ tive asylum decisions; and third, the transfer of protection.23 Under the first area, it could be debated whether Member States can grant residence permits to bene‐ ficiaries of international protection before they meet the condition to have a long-term residence permit recognized. It has to be noted that certain categories of third-country nationals already enjoy the possibility to move to another Mem‐ ber State before obtaining a long-term residence permit.24 Such a possibility may be extended to beneficiaries of international protection for family or work rea‐ sons by virtue of an amendment in the Qualification Directive.25 The second area looks at the State enabling rights attached to the recognition of international pro‐ tection,26 while the third concerns the State responsible for protection. Enhancing mobility for beneficiaries of international protection may be reached by interven‐ ing in one of those areas or in both. On the one hand, according to the current legal framework nothing impedes Member States from recognising refuge or subsidiary protection granted by another Member State. Yet, this rarely occurs in practice and it has no clear EU legal basis. Thus, a legal basis on the mutual recognition would provide beneficiaries of international protection with the right to have their protection recognised in every Member State. EU institutions would have to agree on whether such recognition could be automatic – i.e. immediately after one State grants protection – or it could be triggered after a period of legal residence in the first State that granted protection.27 On the other hand, Member State may transfer the protection from one State to another according to the European Agreement on the Transfer of Responsibility for Refugees, adopted in the context of the Council of Europe in 1980. Nevertheless, this instrument has several drawbacks, as several Member States are not part of this Agreement and it does not cover beneficiary of international protection, inter alia. Therefore, some scholars have proposed to intervene in this area and to enable for a transfer of international protection after two years following the recognition of interna‐ 23 Steve Peers, Transfer of International Protection and European Union Law, in: Internation‐ al Journal of Refugee Law, 2012, pp. 527 ff. 24 See, for instance, the Directive 2009/50 (Blue Card Directive), Art. 16. 25 Similar to the Blue Card holders specific derogations from Directive 2003/109 might be included in the Qualification Directive. 26 I.e. the State that granted protection remains responsible for its revocation but the benefi‐ ciary of such protection may move to another Member State and enjoy the list enshrined in the Qualification Directive (Arts. 20-35). 27 Valsamir Mitsilegas, Humanizing solidarity in European refugee law: the promise of mu‐ tual recognition, in: Maastricht Journal of European and Comparative Law, 24 (2017), p. 721 ff. (p. 737). Andrea Romano 79 tional protection. Such a new legal framework would allow greater mobility to refugees, and beneficiaries of international protection might be reached by amending the Qualification Directive.28 Be that as it may, enhancing free movement for beneficiaries of international protection would have several beneficial effects. First, it would strengthen the protection dimension of the CEAS, enhancing rights and living conditions at‐ tached to the status of refugees and those in receipt of subsidiary protection. It would also have a positive impact on the institutional aspect of the CEAS, giving coherence to the EU’s ambition for “a uniform status of asylum for nationals of third countries, valid throughout the Union” as enshrined in Article 78 TFEU. Then, it would readjust the mutual recognition’s imbalance between positive asy‐ lum decisions and return decisions, where only the latter are observed and imple‐ mented by other Member States.29 Last, it would also have a relevant impact on the functioning of the CEAS as a whole, discouraging Dublin loopholes and pro‐ viding for incentives to respect the EU asylum framework. Should migrants be allowed to move freely to another State once their application has been recog‐ nised – or shortly afterwards – the phenomenon of secondary movements might be reduced. The third priority is to reckon with the opportunities to reach the EU legally, both setting up legal avenues to access the EU labour market and providing for resettlement chances for vulnerable people in need of urgent protection in third countries of first asylum. As a matter of fact, the increase of migrants and refugees’ arrivals on EU shores during the so-called refugee crisis in 2014 has led EU institutions to strengthen the legal avenues to access the European Union. Among the several instruments proposed to that end, resettlement has turned out to be one of the crucial aspects of the reform of the Common European Asylum System, with some resettlement instruments already activated and further pro‐ posals to be adopted in this area.30 To begin with, this recent trend is not flaw‐ less. First, the gap in terms of the compliance rate of EU resettlement pro‐ 28 European Council of Refugees and Exilees (ECRE), Mutual recognition of positive asylum decisions and the transfer of international protection status within the EU, 2014, https://ww w.ecre.org/wp-content/uploads/2016/07/ECRE-Mutual-recognition-of-positive-asylum-dec isions-and-the-transfer-of-international-protection-status-within-the-EU_November-2014.p df. 29 According to the current legal framework in the field of return decisions Member States may either recognize a return decision issued by another Member State under Directive 2001/40, or adopt a second return decision under Directive 2008/115]. See on the “asym‐ metry” on mutual recognition between return decisions and positive asylum claims Kris Pollet, A Common European Asylum System under Construction: Remaining Gaps, Challenges and Next Steps, in: Chetail / De Bruycker / Maiani, Reforming the Com‐ mon European Asylum System, 2016, p. 74 (p. 85). 30 As regards the actions already undertaken see the 2015 Council Conclusion, at https://ww w.consilium.europa.eu/en/meetings/jha/2015/07/20/. As for the next actions see European Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 80 grammes among Member States reveals the ongoing lack of homogeneity con‐ cerning the use of resettlement in the EU,31 with few Member States complying with EU resettlement actions and others practically ignoring their implementa‐ tion. Second, there has been a (problematic) conceptual shift in the use of reset‐ tlement: both the EU-Turkey statement and the more recent EU Commission pro‐ posal to establish a Union Resettlement Framework include provisions that make the entry of refugees in the EU conditional upon the efforts of third countries from which resettlement will take place in fighting against irregular immigra‐ tion.32 This approach is questionable since the relevance of security and immi‐ gration control interests may have the effect of undermining the humanitarian and solidarity potentials that should accompany resettlement policies. Be that as it may, the recent EU intervention on resettlement also entails meaningful per‐ spectives. Particularly noticeable is the effort of the EU to strengthen the number of people resettled each year in the EU, and especially to promote the use of re‐ settlement in EU non-resettling countries such as Italy or Spain – given that re‐ settlement has traditionally been an instrument adopted only by certain EU coun‐ tries, such as the Nordic countries, Germany, and the Netherlands, inter alia. Further, Member States that have long based their action on the containment ra‐ tionale may find such intervention appealing, given the need to rationalise the distortion of the current situation whereby individuals apply for asylum in a bid to have a temporary authorization to stay while their application is being pro‐ cessed.33 Commission, Proposal for a Regulation of the European Parliament and of the Council es‐ tablishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council,), 13 July 2016 COM(2016)468 final / 2016/0225(COD. The last intervention in this area is represented by European Commis‐ sion, Communication from the Commission to the European Parliament, the Council, the European economic and social Committee and the Committee of the Regions on the Deliv‐ ery of the European Agenda on Migration, Brussels, 27 September 2017, COM(2017) 558 final, which further instate Member States to resettle 50.000 persons by October 2019. 31 See, for instance, the compliance rate of the 2015 Council Conclusion indicated in the An‐ nex to the report from the Commission to the European Parliament, the European Council and the Council progress report on the European Agenda on migration resettlement, swd (2017) 372 final, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/poli cies/european-agenda-migration/20171114_annex_7_resettlement_en.pdf, last accessed 27. October 2018, which illustrates an average compliance rate of around 82%. However this result reflects uneven efforts among Member States, with some of them complying with their assigned resettlement quota and some others completely having ignored it. 32 See the EU-Turkey statement and Art. 4 (d), of the Proposal cited supra at note 31. 33 For resettlement in Europe see also European Commission: European Migration Network (EMN), EMN Synthesis Report: Resettlement and Humanitarian Admission Programmes in Europe – what works?, 2016, http://emn.ie/cat_publication_detail.jsp?clog=1&itemID= 3007&t=6, last accessed 27 October 2018. Andrea Romano 81 Final remarks I would like to conclude this paper putting the territorial integrity of the EU in perspective with two broader questions that I will only briefly refer to here and that deserve further research. Beyond the impact of Dublin and the CEAS on Schengen, there are two more general areas of tension that interact with the preservation of the territoriality of the EU, namely the qualification of who is en‐ titled to protection and the national administrative procedure that will inform such assessment. The first problem involves the distinction between economic migrants and persons entitled to international protection – a wellspring of open questions in the integrated EU migration system. The concept of the EU safe country of ori‐ gin is probably one of the most seminal examples of the practical effects of such distinction, with people coming from a country deemed as “safe” being presum‐ ably considered as having voluntarily left their places of origin. More recently, in the context of the “hotspot approach” and relocation decisions, this distinction has become even more salient and legally crucial, as it is an approach based on the objective of quickly organising migration flows, distinguishing those persons who will be returned from those who will be funnelled into the system of inter‐ national protection procedure. However, to reduce the debate to the necessity of distinguishing between refugees and economic migrants oversimplifies the com‐ plex nature of migration flows and the political debate tends to conceive them as fixed and dogmatic categories underestimating the fact that they are much more blurred than they are deemed to be.34 First, this approach underestimates the ex‐ istence of complementary forms of protection,35 which at least in the EU is rep‐ resented by the subsidiary protection introduced by the Qualification Directive: even when the fear of persecution is unfounded – i.e. the claimant is not a refugee – there may be compelling reasons to grant international protection.36 Second, this approach overestimates the existence of several non-refugee cat‐ egories: individuals who are non-removable under international obligations of EU states or enjoy more favourable standards provided at national level in sever‐ al EU countries.37 Furthermore – and from a more sociological perspective – it cannot be taken for granted that decisions to migrate remain the same from the V. 34 On the distinction between economic migrants and refugees see Fulvio Cortese, La diffi‐ cile classificazione dei migranti, in: Savino, supra at note 13, who challenges the simplifi‐ cation of distinguishing between refugees and economic migrants. 35 Jane McAdam, Complementary Protection in International Refugee Law, 2007. 36 See Directive 2011/95/UE, Article 15, which list three different hypothesis for a person be‐ ing eligible for subisdiary protection. 37 On the issue of non-removable third-country nationals see Benedita Menezes Queiroz, Non-removable Migrants in Europe: An Atypical Migration Status?, in: European Public Law, 2 (2018), p. 281 ff. Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 82 country of origin to the one of destination, as migratory routes may last years or even decades, with people deciding to establish themselves in one country and then taking the decision to re-settle elsewhere years later. In those cases, people may have been forced to migrate from their country of origin and after having lived in a given country they decide to move again to another country.38 Further‐ more, an economic migrant may become a sur place refugee if the well-founded fear of persecution arises only after the person in question has left his country of origin; this further contributes to the need to adopt a critical attitude towards the categorization of migrants between refugees and economic migrants. Lastly, it may be particularly difficult to distinguish between forced migration and migrati‐ on driven by economic factors when, for instance, the lack of basic goods effec‐ ted or influenced by the State may amount to an inhuman or degrading treatment. What is more – and moving to the second problem – such a distinction is sub‐ ject to the interpretation of national decision-makers, whose action is practically unaddressed by the Geneva Convention39 and only limitedly covered by EU asy‐ lum legislation. As is known, the harmonisation of the CEAS is not complete and severe discrepancies exist among Member States’ asylum systems, one of the most significant of which is the different recognition rates of asylum claims in EU countries.40 This phenomenon is a product of the national competence on the recognition of asylum claims, which itself comes with far-reaching conse‐ quences. For instance, Eurostat data illustrate that some nationalities may have stronger chances of obtaining a positive assessment of their application depend‐ ing on the particular EU country in which they apply. Further, from the same Eu‐ rostat data one may derive the hypothesis that also the type of protection recog‐ nised (i.e. refugee status, subsidiary protection, residence permits granted on the basis of national legislation, such as humanitarian protection) may vary from 38 See the cases mentioned in Heaven Crawley / Dimitris Skleparis, Refugees, migrants, neither, both: categorical fetishism and the politics of bounding in Europe’s ‘migration cri‐ sis’, in: Journal of Ethnic and Migration Studies, 44 (2018), 48 ff. 39 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 Reedited, January 1992, also accessible at http://www.unhcr.org/4d 93528a9.pdf, last accessed 27 October 2018, spec. par. 189: “The 1951 Convention and the 1967 Protocol define who is a refugee for the purposes of these instruments. It is obvious that, to enable States parties to the Convention and to the Protocol to implement their provisions, refugees have to be identified. Such identification, i.e. the determination of refugee status, although mentioned in the 1951 Convention (cf. Article 9), is not specifically regulated. In particular, the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status. It is therefore left to each Contracting State to establish the procedure that it considers most ap‐ propriate, having regard to its particular constitutional and administrative structure.”. 40 Recognition rates of asylum claims for every EU country can be accessed on the Eurostat portal at http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asydcfsta&lang =en, last accessed 27 October 2018. Andrea Romano 83 Member State to Member State, with countries without humanitarian or other forms of national protection boasting greater numbers in terms of subsidiary pro‐ tection or refugee status granted. Moreover, decision-makers, rather than apply‐ ing an orthodox case-by-case approach, may be deeply influenced by presump‐ tions based on the country from which the applicants come, triggering a “process of inclusion and exclusion on the basis of nationality-based categories”,41 with asylum claims filed by nationals of certain countries more easily disregarded or recognized. This is further evidence that the dichotomy between real and fake refugees cannot be taken at face value, but needs to be problematized, as this dis‐ tinction is influenced by many factors and rests ultimately in the hands of nation‐ al decision-makers. In that context, the relationship between law and the admin‐ istration of the EU asylum acquis becomes inconsistent.42 On the one hand, the EU struggles to deepen the harmonisation of asylum law. On the other hand, na‐ tional decision makers are bound to EU law but – as different recognition rates illustrate – are also deeply influenced by both national practices and by the char‐ acteristics of the administrative system within which they operate (e.g. number of decision-makers, budget of the administration, backlog and delays, etc.). This entails negative consequences as far as the relationship between Dublin and Schengen is concerned and therefore represents a further threat to the integrity of the territoriality of the EU. Indeed, if the existence of severely disharmonised ad‐ ministrative systems means that national decision-makers will examine and qual‐ ify asylum claims differently, this represents a strong incentive for secondary movements, with a clear fallout for the functioning of the Dublin system and hence on the integrity of the Schengen rules. In this regard, it is possible to glimpse at a forward-looking prospect in the 2016 proposal of the Commission43 (amended in September 201844) to transform the current European Asylum Support Office (EASO) into a European Union Agency for Asylum (EUAA). Being tasked with new meaningful functions – such as monitoring activities and substantive tasks in the examination of applica‐ tions for international protection – the expanded mandate of the EUAA aims at ensuring convergence among Member States in the assessment of asylum claims and enhancing uniformity in the implementation of the CEAS. Naturally, it will 41 Crawley cit. provides valid evidences of this, spec. at p. 52. 42 Matthias Wendel, The Refugee Crisis and the Executive: On the Limits of Administrative Discretion in the Common European Asylum System, in: German Law Journal, 2016, p. 1005 ff. 43 European Commission, Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, 4. May 2016, COM(2016) 271 final / 2016/0131 (COD). 44 European Commission, Amended proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, 12 September 2018, COM(2018) 633 final 2016 / 0131 (COD). Integration/Disintegration: Schengen, Dublin and the Future of the EU Territoriality 84 have to be carefully watched so as to prevent the harmonization of national asy‐ lum systems from being tantamount to downgrading higher standards of protec‐ tion. Nonetheless, the reform at stake might be a relevant step to realising the ambition that the rules under which asylum applications are examined should be the same irrespective of the country where such applications are submitted.45 It remains to be seen whether this reform – and more generally the next steps in the reconstruction of the CEAS – will be sufficient to contain the disintegrating pro‐ cess of the EU territoriality and allow the coexistence between Schengen and Dublin, which will also depend on the ability to ensure coherence between law and administration of the EU asylum acquis. 45 See Evanglia (Lilian) Tsourdi, Bottom-up Salvation? From Practical Cooperation To‐ wards Joint Implementation Through the European Asylum Support Office, in: European Papers, 3 (2016), p. 997 ff. Andrea Romano 85

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References

Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck