Responsibility-sharing In Refugee Law

Against the background of the recent migratory crisis in Europe, this Delmi report aims at examining and taking stock of the Common European Asylum System (CEAS). It asks what has been achieved and what has failed, focusing on two of the most pressing challenges: (1) the unequal distribution of asylum seekers across the EU Member States and the search for a more equitable sharing of responsibilities;
and (2) the wide variations regarding Member States’ decision-making practices on asylum applications and the need to achieve more harmonised recognition rates. We label these two aspects “solidarity” (regarding equitable responsibilitysharing) and “fairness” (regarding the approximation of asylum decisions).
The first empirical part of the study explores a number of proposals regarding responsibility-sharing for asylum seekers among the EU Member States, which have been brought up by policy-makers and researchers. The study focuses on the variations in dispersal effects of four different distribution keys for asylum seekers and discusses their appropriateness. Four different keys and their respective advantages and drawbacks are analysed with regard to their allocation criteria,
such as Member States’ population size, economic power, or territory. The authors also look into the de facto number of asylum seekers that the Member States have received in recent years and contrast these numbers to hypothetical fair quotas. The results show that some Member States have overperformed with regard to the number of asylum seekers they admitted, due to their geographical location within
the EU or other factors, whereas others have remained far below a fair share.
The second part asks whether there has been a trend towards increased convergence regarding Member States’ asylum decisions – which we might expect given the fact that the EU has worked towards an approximation for many years. It turns out, however, that while an overall trend towards higher protection rates can be identified, not least due to the increased numbers of asylum seekers from war-ridden countries such as Syria, Member States have made very little progress
regarding more harmonised decisions. Analysing national recognition rates for selected countries of origin (Syria, Afghanistan, Iraq, Pakistan and Kosovo), the authors find that a measurable approximation of national asylum outcomes has not been achieved. Extreme variations have persisted over many years, especially in the cases of Afghanistan and Iraq. In 2016, the chances for an asylum seeker from Iraq to receive protection in Hungary and the United Kingdom was below 13 percent,
compared to 100 percent in Spain and Slovakia. The case of Afghanistan is even more outstanding, with protection rates in 2016 oscillating between 1.7 percent and 97 percent.
Responsibility-sharing and harmonised asylum outcomes are key interdependent factors for the functioning of a Common European Asylum System. First and foremost, an approximation of asylum decisions is a precondition for a successful responsibility-sharing system as it would be unfair to allocate asylum seekers to a Member State where they would have very little chance to receive protection, if
the likelihood of protection would be much greater in another Member State. Vice versa, a fair mandatory distribution of asylum seekers would encourage national governments to abide by the common standards and not use restrictive asylum practices as a method to reduce their attractiveness as countries of destination.
Further to responsibility-sharing and the approximation of decision-making on asylum, the study briefly looks into other factors that also need to be taken forward to achieve a truly Common European Asylum System, such as greater harmonisation and cooperation regarding reception arrangements for asylum seekers and procedural
standards, and a stronger role for the current European Asylum Support Office (EASO). The authors also address the long-standing and fundamental dilemma that asylum applications can only be lodged from within the territory of a Member State or at its borders while it is, at the same time, illegal for most protection seekers to actually get there. The study argues that resettlement and humanitarian admission programmes need to be expanded, and that more legal pathways to protection in Europe should be opened.
Finally, the report presents some concrete ideas for working towards more harmonised asylum outcomes and a workable responsibility-sharing system. On asylum decision-making, the authors propose an enhanced role for a future EU asylum agency, which would include a “fire brigade” function to identify, analyse and mitigate situations in which Member States’ asylum recognition rates for applicants from specific countries of origin differ too strongly. The study also proposes “joint processing” exercises, where officials from several Member States examine and decide asylum applications lodged by nationals of a specific country together. The study presents four main future scenarios for policy-makers to contemplate. These scenarios include (1) the status quo, the continuation of the currently used
Dublin system including its responsibility-allocation criteria; (2) a “Dublin plus” scenario, in which the Dublin rules would be complemented by a new, quota-based corrective allocation mechanism; (3) a new quota-based allocation system that would replace the current Dublin criteria; and (4) finally a “free choice” system in which asylum seekers would be free to choose their country of destination.
In the context of these scenarios or policy options, the study also discusses ideas regarding transition periods for “skeptical” Member States, options to move money instead of people by allowing Member States to ransom themselves, and the importance of intra-EU freedom of movement rights for those asylum-seekers who are granted protection. The authors argue that in the long run, a quota-based system in accordance with scenario number three appears to be the most coherent course of action, though this seems politically difficult to achieve and demands a high level of ambition from EU and national policy-makers.
While the report is written from a European perspective and designed to be of relevance for all Member States, a special focus is applied on Sweden. The authors clarify, for example, what the effects of a fair distribution key for asylum seekers would be regarding the number of asylum applicants to be received in Sweden, and how Sweden positions itself regarding the extent to which asylum seekers from specific countries of origin are granted positive decisions. While Sweden has by far exceeded the quantitative responsibility for asylum seekers that it would have in relation to its population size and its economic power during the period 2008-2015, it suddenly underperformed in 2016 as the number of incoming asylum seekers plunged following the introduction of a number of restrictive measures.
Regarding asylum decisions, Sweden’s practices have often been roughly in line with the EU average, meaning that they did not massively deviate from the mainstream EU approach to specific countries of origin. However, regarding two very significant countries of origin, the authors found interesting variations. Concerning Iraqi nationals, Sweden has been more restrictive than the rest of the EU over the entire period of analysis from 2008 to 2016. While it had a comparatively generous
approach towards asylum seekers from Afghanistan, it was significantly stricter than the EU mainstream in 2015 and 2016.

The Syrian displacement crisis is the most compelling humanitarian crisis of our times. The mass displacement of Syrians did not only cause challenges for Syria’s neighboring countries -including Turkey as the largest host of displaced Syrians- but also the European Union Member States. It has also call into question the principle of “responsibility-sharing” in the context of the international protection of refugees, Human Rights Law and Refugee Law.

As a result of a long negotiation process between Turkey and EU over the protection, and care of displaced Syrians, the parties agreed upon a text that is called the EU-Turkey “Refugee Deal”. The deal was met with a chorus of objection by scholars, legal experts and international NGOs who criticized it for contradicting the general principles of the international Human Rights Law, Refugee Law and the EU Asylum Law.

This paper studies the pathway that lead EU and Turkey to sign the “Refugee Deal”, its content and clauses, implications and potential risks that are likely to occur in practice, with an emphasis on the contribution and/or detriment that the deal would bring to the notion of responsibility-sharing in international humanitarian system.

Safe Country Policies have been a central tool used by states to restrict access to asylum. Despite the salience of such policies for both host states and people seeking protection, we lack a coherent conceptualization of the different types of Safe Country Policies and systematic information on their adoption in all world regions. Aiming to fill these conceptual and empirical gaps, I introduce the Safe Country Policies Dataset (SACOP), which provides original information on the adoption and characteristics of Safe Country Policies in 195 states from 1951 until 2021. Drawing from this dataset, we learn that Safe Country Policies are not only widespread in the Global North but are increasingly being adopted by states in the Global South. The global spread of these policies does not only challenge the principle of responsibility-sharing in asylum governance, but it may also create new patterns of injustice between states in regions that host the bulk of displaced people.

This chapter analyses the recent approach of the European and national courts in interpreting the Dublin III Regulation in the context of protection of fundamental rights. It reflects on the nature of negative and positive obligations corresponding to fundamental rights and the non-refoulement principle and how they can challenge the current allocation of responsibility for processing asylum claims in the EU. Starting from the case law on non-returns and considering the emerging jurisprudence on the 'entry human rights principle', it suggests that practical and effective compliance with human rights has become a prerequisite for the allocating of responsibility for asylum applications in the EU. It argues that a change in the vertical state-refugee relation that is dictated by compliance with the fundamental rights, can change the horizontal interstate relation and the way in which allocation of responsibility for refugee protection takes place. It concludes that when fundamental rights are at risk, the allocation of responsibility takes place through the imposition of a de facto obligation of shared responsibility to guarantee the respect of fundamental rights.

In den aktuellen Debatten darüber, wie sich die massiven Probleme des internationalen Flüchtlingsschutzes angehen lassen, nimmt die Forderung nach einer gerechteren Verantwortungsteilung eine zentrale Stellung ein. Regelmäßig gehen die Analysen dabei von der Zahl der Flüchtlinge weltweit aus und weisen auf die ungleiche Verteilung zwischen Staaten hin. Der Beitrag untersucht darüber hinaus, wie die Rolle von humanitären Organisationen im materiellen Schutz die Problematik der Verantwortungsteilung beeinflusst, und beleuchtet auf dieser Grundlage die Vorschläge für ‚globale Lösungen'. Als kritische Brille dient dabei das Konzept der rechtlichen Produktion von Überflüssigkeit, welches Susan Marks im Anschluss an Hannah Arendt entwickelt hat. Sowohl zwischenstaatliche Abkommen, bei denen gegen finanzielle Leistungen zugesichert wird, Flüchtlinge an der Migration zu hindern, wie auch Phänomene humanitärer Regierung in Flüchtlingslagern lassen sich unter diesem Aspekt analysieren. Letztlich, argumentiert der Beitrag, müssen Lösungsansätze darauf gerichtet sein, diesen Tendenzen entgegenzuwirken. Dafür sind neben Maßnahmen, welche den Flüchtlingsschutz zentralisieren, auch Bemühungen notwendig, dezentral die Mobilität von Flüchtlingen zu sichern.

English Abstract:

The call for a fairer sharing of responsibility occupies a central place in the discussions how to tackle the severe flaws in the current framework of international refugee protection. Analyses in that regard regularly depart from the number of refugees worldwide and point out the unequal distribution among states. The paper describes how beyond that, the role of humanitarian organizations in material assistance impacts the question of responsibility sharing, and on that basis examines the proposals for 'global solutions'. As a critical lens for this endeavor serves the notion of law's production of superfluity, which Susan Marks developed with reference to Hannah Arendt. State agreements that oblige on party in exchange for financial benefits to hinder refugees from migrating, as well as phenomena of humanitarian government in refugee camps can be analyzed from that perspective. Ultimately, the paper argues, avenues towards solutions must seek to counter these tendencies. For that purpose, centralized measures of enhancing protection have to be complemented with endeavors to ensure the mobility of refugees.

The global refugee protection system is founded on two core values, assuring a safe and dignified life away from violent regimes and conflicts: the right to asylum and the non-refoulement rule. While there are no internationally agreed definitions for these concepts, their fragmentation affects the equitable and predictable burden- and responsibility-sharing, and subsequently, successful international cooperation in refugee matters.

By analysing the right to asylum in legal theory and examining its application in the jurisprudence of international human rights monitoring bodies, this article seeks to explore the complexity of heterogeneous approaches with regard to refugees. Furthermore, the impediments to the functioning of the current refugee protection regime is identified by analysing the complicated nature of its umbrella maxim - the non-refoulement rule. The article examines how the lack of clarity on the contents of the right to asylum and the non-refoulement rule causes different, sometimes contradictory, approaches regarding the corresponding international obligations of states. It further explores how the diversified understanding of these foundational principles makes it difficult to identify common protection needs and the responsibilities of states with regard to international cooperation and burden- and responsibility-sharing on refugee matters.

Eventually, the fragmentation of these core values threatens their unequivocal application and results in failing refugee protection regimes. Consequently, this article argues that a common understanding on the right to asylum and non-refoulement rule represents a condicio sine qua non for securing equitable and predictable burden- and responsibility-sharing mechanism in refugee matters.

The state of malaise in which international refugee law is ensnared has created a crisis of confidence for both state and non-state actors with regards to the relevance of the discipline. As a cardinal principle of the regime, global concerns are focused on the issue of effective burden-sharing as a mechanism towards humanitarian outcomes. International environmental law has notably approached this problem by invoking the doctrine of Common But Differentiated Responsibilities, thereby providing a functional mechanism wherein states recognise the commonness of their responsibilities and differences in their obligations. In light of the tumultuous state of affairs at the time, in 1997 Hathaway and Neve proposed the introduction of the doctrine into the international refugee law regime, arguing for the reformulation of burden-sharing as perceived by state actors. This paper argues that such a reformulation remains justified, given the political-legal environment in which international refugee law exists. Whilst the aim is not to propose a revolutionary reconceptualisation of burden-sharing or international refugee law more generally, this paper advances the claim that past burden-sharing schemes in which regional groups of states tackled ad hoc refugee crises raise crucial questions of legality, morality and practicality which need to be addressed before the global community directs its attention towards a more comprehensive reformulation of burden-sharing. These issues require resolution and consensus in order to secure the success of future burden-sharing schemes.

Der Vorschlag, Asylsuchende doch einfach direkt an der Grenze abzuweisen, ist als politisches Material erstaunlich langlebig. Erstaunlich, weil das Recht dem Vorschlag so eindeutig entgegensteht. Das Europarecht steht ihm entgegen, in Form der Regelungen der Dublin-Verordnung. Wenn man die ändern oder missachten möchte, steht dem Vorschlag immer noch die Europäische Menschenrechtskonvention (EMRK) entgegen, mit dem Verbot der Kollektivausweisung nach Art. 4 Zusatzprotokoll IV. Und falls die entsprechenden Fraktionen überlegen, aus der EMRK auszutreten, steht der Zurückweisung von Flüchtlingen an der Grenze auch noch die Genfer Flüchtlingskonvention und das Völkergewohnheitsrecht entgegen, mit dem Refoulement-Verbot und der deklaratorischen Natur der Flüchtlingsanerkennung. Insofern wäre politische Energie besser investiert, indem über rechtskonforme Vorschläge der Gestaltung von Flüchtlingsschutz diskutiert wird.

When the German Minister of the Interior a few weeks ago announced that " the refugee crisis has not been resolved, but its solution is on a very good way " , he was obviously not speaking about the global situation. He was referring to the situation in Europe and particularly in Germany, where after the successive closure of the Balkan route and the agreement between the EU and Turkey in March (as discussed here), the number of persons arriving has dropped significantly. On the global level, UNHCR counts more than 65 million displaced persons. And while European policies place a strong emphasis on the " securization of external borders " and " reducing incentives of irregular migration " (cf. here), the European share in receiving refugees is minor in comparison: 94 percent of the world's forcibly displaced find shelter outside Europe, by far most of them in the Global South. The situation of refugees worldwide involves numerous sites that receive little attention, and numerous protracted refugee situations, in which persons remain in a state of displacement for years if not for generations. Solutions for refugees that exclude from view the question of responsibility-sharing must appear shortsighted under those conditions. I will not address here the issue of inner-European responsibility-sharing, which exhibits many parallel features, but only speak about responsibility-sharing on the global level. Four aspects thereby interrelate: the highly unequal distribution of responsibility for refugees today, increasing tendencies of border securization and externalization of migration control by states of the Global North, the shortcomings in providing refugee rights in many places, and the role of humanitarian agencies in protection. My interest in this blog article is to sketch some ideas how the notion of " law's production of superfluity " , as Susan Marks has introduced it, might provide a helpful lens for understanding those interdependencies and how it might also inform our reflections about global responses to the cause of refugees. Responsibility-sharing and the question of access to territory Mobility, or more specifically the access to territory, constitutes the crucial aspect in the plight of refugees. As Hannah Arendt seminally formulated, it is not so much the " loss of a