To What Extent is the EU Failing to Address the Refugee Crisis?

Abstract

The Arab Spring, having spawned the largest displacement crisis since World War II, has forced an unprecedented number of refugees, desperate for asylum, onto the shores of Europe in what has manifested as a humanitarian crisis of incalculable scale.

A
successful response to this crisis, it is suggested, must be predicated upon
the EU and its MSs adopting a ‘dual’ construction of solidarity
– where the promulgation of MS-refugee solidarity is espoused alongside the
traditional, interstate exposition – allowing the EU to address the crisis in a
manner that combines, both, efficiency and welfare consideration. It is
proposed that this ‘dual’ conception of solidarity should be understood as
being underpinned and motivated by three, interdependent, core tenets, derived
from Rawls’s “cooperative virtues”: fairness, fidelity and trust. However, in its response to the crisis, both as it pertains to the CEAS
and to its external border policy, these central components have been
subverted, or selectively applied, by the EU and its MSs. This has precipitated
the application of a narrow, unilateralistconception of solidarity at best, and an outright abrogation of ‘dual’
solidarity at worst, with both consequences working to perpetuate
an already desperate situation for refugees and MSs alike, notwithstanding the
European Courts’ endeavours to impose ‘dual’ solidarity where the MSs’ refusal
to do is particularly egregious.

Moving forward, a loyal adherence to ‘dual’ solidarity would ideally realise a centralised asylum system, complete with a supranational relocation mechanism, in conjunction with a de-securitised mandate for the border. However, it also appears that the political will for a comprehensive, holistic expression of ‘dual’ solidarity is lacking, which in itself raises important questions about the EU’s future as a cooperative, political union.

List of Abbreviations

Introduction

On
the 17^th of December 2010, a young, Tunisian street vendor’s
self-immolation unleashed the ‘Arab Spring’.[1]
José Manuel
Barroso, President of the European Commission, was assiduous in his zealous support
of this fight for a “future of freedom and dignity”,[2]
asserting that “Europe’s place is at the side of those who aspire to dignity,
democracy and freedom”, whilst simultaneously stressing the importance of
solidarity as a basic value of the EU; a value to be practiced not only within
the Union, but towards all with a “commitment to a better present and a better
future”.[3]

However,
over four years on, his words ring disquietingly hollow.

In 2015 alone, the EU received an
unprecedented 1,015,078 claims for asylum.[4]
Whilst the on-going Syrian conflict, a product of the Arab Spring, has
manifested as the principal generator of refugees,[5]
persistent violence, abuse, and destitution in countries such as Eritrea,
Afghanistan and Kosovo has forced hundreds of thousands more onto the shores of
Europe in what is the largest global
displacement crisis since World War II.[6]
Yet, in response, the EU has deployed “weak, slow,
ineffectual and poorly coordinated mechanisms”,[7] which
have exacerbated, rather than ameliorated, the humanitarian and political
damage wreaked by the crisis.Indeed,
the Dublin Regulation,[8] the
cornerstone of the Common European Asylum System (CEAS),[9] places
responsibility for an asylum application on the refugees’ first Member State (MS)
of Arrival,[10] overburdening
Southern MSs, resulting in immense human misery. At the external border, the
imposition of visa requirements, coupled with carrier sanctions, operate so as
to necessitate perilous journeys across the Mediterranean, whilst the EU’s emphasis
on securitisation has legitimatised a disregard for human rights.

The answer, it is suggested, lays
not in an exclusive commitment to interstate solidarity. Rather, a ‘dual’ construction
of solidarity – where the promulgation of MS-refugee solidarity is espoused
alongside the traditional, interstate exposition – would allow the EU to
successfully address the crisis in a manner that combines, both, efficiency and
welfare consideration. In fact, had Barosso given practical effect to his admirably
broad conceptualisation of solidarity, the humanitarian disaster that continues
to unravel on Europe’s extremities might have been avoided.

However,
‘solidarity’ has been left largely undefined within the EU’s legal landscape.
Therefore, to mandate an understanding of the principle without an intelligible
comprehension of its core tenets would leave a definitional lacuna, exposing
the term to a myriad of incongruent, contrived interpretations – a natural
consequence of divergent national interests that have thus far thwarted the EU’s
response.[11]
Therefore, it is suggested that this universal,
holistic understanding of solidarity is attainable by reference to three, core
tenets, derived from Rawls’s “cooperative virtues of justice”: fairness (on
behalf of MSs to each other, and towards refugees), fidelity (by MSs to EU and
International law) and trust (as between MSs).[12]

However, this essay
will seek to expound on the notion that, in its response to the crisis, both as
it pertains to the CEAS and to its external border policy, these central
components have been subverted, or selectively applied, by the EU and its MSs.
This has precipitated the application of a narrow, unilateralistconception of solidarity at best, and
an outright abrogation of ‘dual’ solidarity at worst, with both consequences
working to perpetuate an already desperate situation for refugees and MSs
alike, notwithstanding the European Courts’ endeavours to impose ‘dual’
solidarity where the MSs’ refusal to do is particularly egregious.

Ultimately, it will be concluded
that, upon moving forward, adherence to ‘dual’ solidarity mandates, in
particular, a centralised system of asylum. Yet, a lack of coherent, political
will threatens to stymie such an approach – an understanding that will operate
not only to exacerbate the crisis, but also raise portentous questions about
the EU’s future as a political union, with the crisis having already bared the
friability of European order.

A Principled Outline

It
was Schuman, in his celebrated Declaration of May 1950, who first presented the
seminal notion that “solidarité
de fait”[13]
was, and remains, a necessary precondition to an effectual
multistate union, with numerous provisions of EU primary law,[14] in
addition to multiple ruling’s,[15]
having since embedded the principle into the EU’s legal infrastructure.

However, any certainty pertaining to
the principle begins and ends with an acknowledgement of its existence.[16]
The Lisbon Treaty, as well as its predecessors, provides minimal assistance into
its definitional determination,[17]
with, as Lang illustrates, the “the
benchmarks against which to measure its fulfilment [left] undefined”.[18]
Two fundamental, yet inextricably related, difficulties arise from this
inherent nebulosity: the obligations it can be said to impose are uncertain,[19]
whilst ascertaining between whom the principle relates is also unclear.[20]
Therefore, in order, through the complex prism of solidarity, to meaningfully
examine the EU’s failures in addressing the crisis, it is of critical, initial
importance that these matters are considered.

A ‘Dual’ Conception of Solidarity

Whilst the Treaty of Rome[21] appears
to have ascribed solidarity an almost exclusively statist form,[22] Hilpold
observes that “the situation changed…in a radical way”[23]
with the inception of Union citizenship in the Maastricht Treaty,[24] a
concept which provided, for the first time, a “linkage of social solidarity”[25]
in conferring social rights to migrants, notwithstanding their exercise of economic
rights.[26]

In underpinning a perspicuous social
dimension to the internal economic market, the EU conferred implicit
recognition to a postmodernist notion that the individual, rather than the State,
exists as the protagonist in the European integration process;[27] that
the State’s primary function is to serve the well-being of its population,
rather than existing as “a means of themselves”.[28]
Hence, with European citizens as the primary addressee of action taken light of
solidarity, [29] an
enduring, solidarity-based relationship with the EU and its member states is
established.

Yet, the ‘primary addressee’ of EU
asylum law is not the EU citizen, nor the MS. Rather, as a “particularly vulnerable
group in need of special protection”,[30]
asylum law functions to protect the refugee.[31]
Just as the EU’s recognition of a social element within the internal market has
created a relationship of solidarity with its citizens, EU asylum law must, if
to avoid formal fallaciousness, be regarded as having generated a similar
relationship of solidarity between refugees and the EU, an understanding that
garners further legal corroboration from Article
62(2) TFEU,[32]
which demands “solidarity between Member States, which is fair towards third country
nationals”.[33]

Therefore, it follows that a ‘dual’,
holistic configuration of solidarity can be understood to have spawned.

Defining ‘Dual’ Solidarity ­

To contend,
however, that MSs are bound, in their response to the crisis, by EU law to
exhibit ‘dual’ solidarity is patently meaningless unless and until it is
substantively elucidated upon. Indeed, as Hartwig and Nicolaides incisively ask, “is
it possible…to engender a ‘We perspective’[34] without having a
pre-existing consensus on [solidarity’s] constituent elements?”[35] Indeed, given “the
multiplicity of meanings and contents”[36] attributable to
solidarity, persistent non-substantiation empowers MSs to distort the principle
in light of their own, often conflicting, interests. For example, David
Cameron, in professing the importance of demonstrating solidarity with refugees,[37] added
that the UK would not participate in a program of refugee ‘burden’-sharing,[38]
as this would “encourage them [the refugees] to make lethal journey’s to
Europe”;[39]
implying that such a redistribution proposal would be inconsonant with
solidarity. Yet, just three days prior, German Chancellor, Angela Merkel, had
stressed the need for a ‘sharing of duty’, conducted through an equal
distribution of refugees between MSs in a manner that would respect the
principle of solidarity.[40] Whilst
Merkel’s comprehension of solidarity accords with the desirable, dualistic understanding
propounded above, the principles’ indeterminacy accommodates different
conclusions on identical facts.

Hence,
it is proposed that ‘dual’ solidarity, as explicated, should be understood as being
underpinned and motivated by three, interdependent, core tenets, derived from
Rawls’s “cooperative virtues”: fairness, fidelity and trust.[41] The
legal foundations on which these tenets rest, and the obligations that they can
be said to confer, will be now explored.

Fairness

Article 80 TFEU, which calls for solidarity between MSs in
the area of asylum and border control, explicitly refers to the “fair sharing
of responsibility”;[42]
that there should be, as Zürcher observes, a “natural kinship between members
of the community”,[43] with Article 80
delimiting such a community so as to only include MSs. Article 80, motivated by
a perception of shared problems and interests, therefore inferentially
vindicates a rational understanding[44] of fairness; one
conceived on grounds of latent reciprocity,[45] which Rawls argues
assists in the promotion of a sense of fairness
that is conducive to the realisation of a wider social justice.[46] As it relates to the crisis, MSs might therefore be
compelled to act equitably in, for example, accepting a ‘fair share’ of
refugees, due to a given State’s particular interest in reducing their number
of illegal entries, the nascency of ‘migrant jungles’,[47] or, indeed, an
expectation of homologous assistance when confronted with unrelated
emergencies.

However, for Rawls,
“well-ordered peoples have a duty to
assist burdened societies”.[48] Hence, ‘dual’ solidarity
must not be driven by mutual-benefit alone, but also by a normatively driven
appreciation of distributive justice,[49] rooted in, as Deprmann
observes, “the care and the moral responsibility for the rights or welfare of
others”,[50]
which insists on the “primary good”[51] intrinsic to distribution
of membership into a given political community, such as the EU.[52] Indeed, Article 62(2)
TFEU, requiring “solidarity between Member States,
which is fair towards third country nationals”, is an
exceptional example of its kind, envisioning not only the MS, but also the
refugee as party to Zürcher’s ‘community’. Hence, fairness, in this regard, demands
“a certain level of commitment and sacrifices of the group members”,[53] even where tangible,
reciprocal benefit is lacking.

Fidelity

Respect for fairness ordinarily breeds
fidelity.[54] As
Rawls posits, fidelity “is but a special case of the principle of fairness
applied to the social practice of promising”, requiring compliance with
contracts voluntarily made.[55] ‘Dual’
solidarity therefore necessitates MS fidelity to obligations that arise out of
EU membership.

Whilst the Regulations, Directives
and Decisions which comprise EU asylum and border policy will be elucidated on
below, the aforementioned ‘vulnerability’ of refugees inexorably entails, in an
assessment of the EU’s crisis response, that the fidelity accorded to their
fundamental rights is placed at the heart of any such discussion, the prime
sources of which will now be considered.

The 1951 UN Convention relating to
the Status of Refugees (‘Refugee Convention’) is the foundational source of
legal obligations pertaining to refugees and human rights.[56] Importantly,
all EU MSs are signatories to the Convention, and Article 78(1) TFEU provides
that the CEAS must concord with its provisions. The Convention, for present
purposes, espouses two, central precepts. First, it defines a refugee as
anybody who, “owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality” and is unable or,
out of fear, unwilling to available himself of the protection of that country.[57] The
United Nations High Commissioner for Refugees (UNHCR) has observed that those
fleeing civil war in Syria invariably qualify for refugee status.[58]
The second, cornerstone principle of the Convention relates to the principle of
non-refoulement, the germinal
requirementthat no refugee may be
returned to the borders of a state where he or she fears persecution.[59]

At European level, two principal
human rights instruments exist. The European Convention on Human Rights (ECHR),[60]
overseen by the European Court of Human Rights (ECtHR), a permanent legal body
of the Council of Europe. Whilst the EU has yet to accede to the ECHR on a
supranational level,[61]
as foreseen by Article 6(2) TEU,[62]
all MSs have, like the Refugee Convention, ratified it. Article 3 of the ECHR,
which prohibits torture or inhuman or degrading treatment or punishment, is of
foremost concernment. The ECtHR has long-held the Article as implying a
prohibition on refoulement where he
or she could be subject to a real risk of treatment contrary to Article 3 – a
judicial construction considered by Hurwitz as constituting a “de facto [albeit
implicit] right to asylum”.[63] The
second instrument ofconsequence is
the EUCFR,[64] which exists
as primary EU law and carries the same legal weight as the EU’s founding
treaties,[65]
with its provisions interpreted by the Court of Justice of the European Union (CJEU).
Unlike the Refugee Convention or ECHR, it enshrines an explicit right to asylum
under Article 18, whilst Article 19 re-affirms the principle of non-refoulement.

Trust

Eventually, maintained Rawls,
satisfaction of the fairness and fidelity tenets will arouse sentiments of
mutual trust,[66] which,
as the European Commission has observed, acknowledging the essential link
between trust and the generation of solidarity,[67]
is “fundamental to a well-functioning asylum cooperation”.[68]

Indeed, distrust risks cultivating MS
incentive to prioritise national interest over supranational coordination, thus
contravening basic, interstate solidarity.[69]  Yet, trust is of peculiar significance to the
EU’s asylum policy. First, the automaticity of the CEAS, as conferred by the
Dublin Regulation’s ‘First State of Arrival’ rule,[70] is
founded upon a trust-based presumption of fidelity – that fundamental rights
are fully respected by all EU MSs;[71] a
notion that itself finds legal expression in the well-established ‘presumption
of equivalent protection’.[72] Second,
in logically observing that “good neighbours make good fences”,[73]
Pickles aptly surmises that the successful control of borders, and by extension,
an asylum system,[74]
is predicated on sentiments of “fellow feeling”[75]
or mutual trust.

Having discussed the three tenets of
‘solidarity’, it is the EU’s failure to fully respect these, thus stymying a
vital realisation of ‘dual’ solidarity, which will now be analysed in light of
the Dublin Regulation.

 ‘Dual’ Solidarity and the Dublin Regulation

The
establishment of a CEAS, following the Lisbon Treaty’s incorporation of Article
78(2) TFEU authorising the adoption of common asylum standards and procedures,
was transformed from a mere, political objective, into a firm, legal commitment.[76]
In 2013, following lengthy negotiations, the EU, in pursuance of such common
requirements, adopted a recast ‘asylum package’. This included a recast of the
Reception Conditions[77] and Asylum Procedures[78] Directives, the EURODAC
Regulation, establishing
a fingerprint database for those entering European territory,[79]
and, most pertinently, the recast Dublin Regulation (Dublin III). Founded on exclusionary notions of
security, however, Dublin III is afflicted by a structural unfairness that risks
not only undermining the ‘dual’ solidarity tenets of fidelity and fairness, but
positively encourages their subversion.

Structural Unfairness

•  A Securitised Premise and ‘Mutual Trust’

The
Regulation’s central principle, the ‘First State of Arrival’ rule, imposes an
asylum-processing responsibility on the ‘first’, invariably Southern, MS in
which the asylum-seeker arrives. By logical extension, an asylum-seeker may also
be returned to this first MS of arrival if he or she engages in secondary
movement.[80]
Despite a decade of fierce criticism,[81]
the rule nonetheless survived the recast process unscathed. In so doing, Dublin
III continues to unfairly perpetuate
the geographical disparity in migratory pressure between Northern and Southern MSs,
with just five, Southern MSs processing 72% of all asylum claims
in 2014.[82]

However,
the rule is explicitly justified, judicially[83]
and politically,[84]
in a desire to inhibit systematic abuse by asylum-seekers, thus avoiding
‘refugees in orbit’[85]
and ‘venue-shopping’.[86]
As Noll identifies, this logic of ‘abuse’ securitises asylum;[87]
by construing the refugee as a threat,[88]
in their perceived capacity to undermine notions of state security, sovereignty
and economic stability,[89]
it legitimates the imposition of onerous, administrative measures, such as the
‘First State of Arrival’ rule, in the course of a “war against illicit
migrants”.[90]
This, therefore, exempts Northern MSs from their legal duties of fairness and
responsibility to refugees and Southern MSs alike, which necessarily obstructs
the formation of, both, the interstate and MS-refugee solidarity required in
order to successfully address the crisis.

The inequitable variance in MS
responsibility, whilst justified by a perception of insecurity, is afforded
operational, legal potency by ‘mutual trust’. In essence, ‘mutual trust’ bestows an assumption that
MSs assonantly respect the tenet of legal fidelity; that all MSs treat refugees
in full accordance with national, European and International Law,[91]
rendering the Dublin mechanism, both, ostensibly fair and fundamentally
consonant with a refugee’s human rights. Yet, it is a norm lucidly characterised
by Noll as predicated on the “fictive equality of divergent asylum systems”,[92]
with Dublin III’s presupposition of legal harmonisation between MSs dangerously
misplaced. Brekke, for example, observes that asylum-seekers received by Norway,
a Northern European nation,[93]
ordinarily encounter a clean, well-organised reception system, together with a
two-year introductory programme and extensive welfare benefits.[94]
In stark contrast, the ECtHR, in relation to Greece’s sorely overburdened detention
centres, has remarked on the “appalling” hygiene conditions, lack of sanitary
facilities, space, ventilation and the ever-present fear of assault and/or
robbery, cumulatively amounting to a breach of Article 3 ECHR.[95]
A dogmatic, ignorant reliance upon ‘mutual trust’ could, therefore, imply a
violation of the principle of non-refoulement
where an asylum-seeker is returned, on account of the ‘First State of Arrival’
rule, to a MS ‘trusted’ as safe.

The
paucity of fairness, both rational and normative, that exemplifies the Dublin
mechanism therefore risks manifesting as a contravention, by Southern MSs, of
fidelity, as the sheer number of arrivals ipso
facto results in overwhelmed, deficient asylum procedures and reception
conditions,[96]
to the ultimate detriment of a refugees’ fundamental rights.

• An Incentive for Infidelity

Yet, in addition to rendering fidelity to the law impracticable,
Dublin III’s inherent, structural fairness has also, following the crisis,
incentivised MSs to premeditatively violate fundamental rights.

Indeed,
the regulation’s ‘State of First Arrival’ rule, and the attendant
responsibility it imposes on receiving MSs, has induced a number of ‘push back’
policies by MSs on Europe’s periphery, in apparent contravention of the
principle of non-refoulement.

Italy’s
adoption of such a practice, in which African asylum-seekers, bound from Libya,
were returned en-route following a ‘Friendship and Cooperation’ agreement with
the Libyan authorities,[97]
is, perhaps, the best-known example; a policy that only ended following the
ECtHR ruling in Hirsi that it
constituted an exercise of jurisdiction within the meaning of Article 1 of the
Refugee Convention, engaging MS responsibility under, inter alia, Article 3 ECHR.[98]
 The Spanish government has also proposed
amendments to its immigration law in order to legalise its ‘push back’ policy
for those arriving from Ceuta and Melilla,[99]
a move criticised by the Council of Europe as a “clear breach of human rights
law”,[100]
given its apparent irreconcilability with the Hirsi principle and is pending a ECtHR challenge in NT v Spain.[101]

Yet,
the ‘First State of Arrival’ rule also goads MSs into inaction – manifesting as
a negative form of legal infidelity. Indeed, despite the establishment of the European
Asylum Support Office in 2010 (EASO),[102]
formed in order to enhance the implementation of the CEAS, both Italy and
Greece, in wake of the Arab Spring, have persistently disregarded their
obligation under the EURODAC Regulation to fingerprint asylum-seekers.[103]
In doing so, the identification of those who engage in secondary movement is
problematised, diminishing the possibility of a return under Dublin III.[104]
The “frustratingly slow” development of ‘hotspots’,[105]
introduced by the EU in September of 2015 in order to register and fingerprint
asylum-seekers in Italy and Greece,[106]
suggests that change is, at least in the short-term, improbable. Although plausibly
illustrative of – albeit unintentional – MS-refugee solidarity, such legal
infidelity, if continually practiced, ultimately breeds deep, political
mistrust between Northern and Southern MSs, impeding any serious prospect of
successfully addressing the crisis.[107]

At
its most extreme, this incentive for infidelity has contributed to ‘systemic
deficiencies’[108]
in Greece’s asylum system, prompting the ECtHR to institute a prohibition on
Dublin returns to the country.[109]
As Bastasserts, the crisis “is not…solely, the result of refugees that simply overwhelmed [MS asylum
systems], but rather the consequence of a boycott of a system that the local
actors did not perceive as taking their interests into account”.[110] In fact, Greece’s meager
‘reward’, upon improving its reception conditions, would be a lifting of the
current deportation ban, thereby aggravating the situation.[111] This explains, to some
degree, the unusually poor domestic
transposition and implementation of the recast Directives,[112]
rendering any new provision of rights functionally inefficacious. Whilst the
Commission, in December of 2015, initiated eight infringement decisions against
Greece, Croatia, Italy, Malta and Hungary for failing to transpose and
implement the legislation,[113]
the practical difference such measures can, or will, make is greatly uncertain.[114]

A failure to address the
fairness-deficit at the crux of Dublin III’s ‘First State of Arrival’ rule has,
therefore, incentivised MS infidelity to EU and International law, both in a positive
and negative sense, thereby subverting trust between Northern and Southern MSs,
inhibiting the formation of ‘dual’ solidarity, and by necessary extension,
rendering deficient the EU’s response to the crisis.

The European Courts: Forcing ‘Dual’ Solidarity?

With
the Dublin Regulation’s elemental unfairness the principal cause, the
‘cooperative virtues’ of ‘dual’ solidarity have evidently been, at best,
disjointedly enunciated. Given this, the role of the European Courts has taken
on especial significance, enforcing
such solidarity where MSs have been otherwise reluctant to in light of the
crisis. Indeed, whilst the ECtHR[115]
has performed its important ‘monitoring’ function,[116]
the CJEU has synchronously asserted itself as a “fundamental rights court”,[117]
and in doing so, as observed by former Attorney-General Jacobs, “has
treated…the ECHR as if it were binding upon the Community, and has followed
scrupulously the case-law of the ECtHR”.[118]

The Courts and the Dublin Regulation

Most conspicuously, the
problematic anchorage of the Dublin Regulation to the principle of mutual trust
has been extirpated where a lack of fidelity to fundamental human rights is
evidenced, and by extension, a risk of refoulement
exists.

In KRS,[119] a pre-crisis case,
despite upholding the “independence, reliability and objectivity” of UNHCR
evidence that indicated unacceptable conditions for asylum-seekers in Greece,[120] the ECtHR held that such
concerns could not preclude a Dublin transfer from the UK, given the
presumption of Greece’s fidelity to the law.[121] The Court appeared,
therefore, to be sanctioning the “willful ignorance”[122] of MSs in the illusory
name of mutual trust, to the considerable detriment of fairness and legal
fidelity.

However, in wake of the Arab Spring,
and the resultant, enormous rise in Europe-bound refugees, the Courts have
departed from such reasoning, opting, instead, to address the matter by enforcing
a brand of ‘dual’ solidarity. Indeed, in MSS,[123] the ECtHR unanimously
found that detention conditions in Greece violated Article 3 ECHR. This had
generated a specific, positive obligation on Belgium not to return the
applicant, a ruling referred to by the CJEU in NS,[124] where the Court resolved
to preclude Dublin transfers where reception conditions provided “substantial
grounds”[125] for believing that an asylum-seeker would face
inhuman or degrading treatment.[126]

The decisions, therefore,
amounted to a “resounding reassertion of each State’s responsibility to ensure
that ECHR [and EU Charter] guarantees were practical and effective”,[127] with MSs now, following MSS, obligated
to apply the Article 17(1)[128] Dublin III ‘sovereignty’
clause’, an otherwise voluntary derogation from the ‘First State of Arrival’
rule, in order to prevent a Dublin transfer to Greece. An understanding of
mutual trust as an absolute basis for intro-EU transfers is, therefore, no longer
tenable. In effect, the courts have enforced the ‘cooperative virtues’ of
fairness and fidelity.

It should be noted that the CJEU
in NA had suggested, in order to
prevent deportation, a requirement of “systemic deficiencies”[129] in a MSs’ asylum system,
an alarmingly high threshold that the Court in Abdullahi[130] doubled-down on.
Nonetheless, the expansion of procedural rights afforded to asylum-seekers in
the Dublin recast,[131] in tandem with the
ECtHR’s judgment in Tarakhel,[132] described by Costelloas a “game changer”,[133] militates against such demanding
construction, the Court having explicitly rejected “systemic breaches” as an
additional test or threshold.[134] Article 3 ECHR would, it
was held, risk violation if the Italian authorities had failed to seek and
obtain “sufficient assurances” that, upon return to Greece, the asylum-seeker
would be appropriately received and that, in this case, the applicant’s family
would remain unified.[135] Therefore, despite
acknowledgement that Italian reception conditions could “in no way be compared”[136] to those in Greece, the
Court established an intermediate category of cases in which MSs must advance
with caution.[137]

Fairness and Fidelity vs. Mutual Trust

As it pertains to ‘dual’
solidarity and the crisis, these cases raise a number of important matters. The
Court in MSS established that the
returning MS was vicariously liable for the legal infidelity of other MSs.
Therefore, as the Belgian authorities “knew or ought to have known” that the
applicant “had no guarantee that his asylum application would be seriously
examined by the Greek authorities”, they were found to have violated Article 3
ECHR,[138]
with the return amounting to, both, a form of indirect refoulement via Greece,[139] and direct refoulement to rights-violative
conditions in Greece itself.[140]

Therefore, MSs are faced with
a catch-22, forced to choose between enquiring into each other’s legal fidelity,
thereby jeopardising mutual trust, or sanctioning the transfer, exposing it to
liability for human rights violations that, as Langford observes, “could create
even deeper resentment”.[141] Indeed, in disavowing
the inviolability of mutual trust, it might be argued that the Courts have destabilised
the attempted establishment of a CEAS by undermining mutual trust and
‘rewarding’ incompliant MSs for their functional failures. However, whilst this
abrogation of mutual trust is unfortunate – generating a loose, inchoate form
‘dual’ solidarity – so long as Dublin III’s ‘First State of Arrival’ rule
continues to legally subsist, the enforcement of this limited, trust-subversive
form of ‘dual’ solidarity ensures a modicum of protection for fundamental human
rights, whilst enforcing upon Northern MSs a, albeit limited, degree ofmaterial responsibility, as required by
Article 80 TFEU.

Moreover, in drawing critical
attention to the flaws in Greece and Italy’s asylum systems, such decisions
might, as the crisis further deteriorates, facilitate additional pressure on
the EU and its MS to adopt a comprehensive understanding of ‘dual’ solidarity.

The Courts and Protecting the Vulnerable

Aside
from dismantling the central principle of mutual trust, the European Courts
have also been crucial in promoting ‘dual’ solidarity by way of obliging fairness
towards refugees who are especially vulnerable.

In
K,[142]
for example, the CJEU held, espousing a teleological construction of the ‘humanitarian’
clause[143]
– the second, ordinarily voluntary, exception to the ‘First State
of Arrival’ rule – that
the provision must be invoked in
order to bring or keep together dependant members of an extended family, which,
in this case, concerned the daughter-in-law of an asylum-seeker whose
dependency derived from having to care for her new-born baby with a severe
handicap. The Court in MA[144]extended this protectionist notion
further. The case turned on the United Kingdom’s responsibility for the asylum
applications of unaccompanied minors who, unlike the applicant in K, had no family members legally present
in any other MS. The Court found, in light of their status as “particularly
vulnerable persons”, that “as a rule, unaccompanied minors should not be
transferred to another Member State”,[145]
meaning that the responsible MS would be that in which the minor had last
applied for asylum – in this case, the United Kingdom. Nonetheless, a
subsequent Commission proposal to confirm and extend this rule within the
Dublin Regulation was blocked by the European Council[146]
– a stark reminder of the sheer MS aversion to a normative regard for fairness.

These exhibitions of judicial activism, both in
relation to ‘mutual trust’ and vulnerable persons, have prompted assertions
that the Courts are “filling the lacunae of EU asylum legislation, which in
spite of the recast process remain”.[147] Indeed, the judicial
approach in light of the crisis is welcome, but should not legitimate assertions
that that the Courts, having purportedly annulled the worst features of the
CEAS, have ensured confidence in the system, as contended by Kaunert and Léonard.[148]
Rather, the Courts, in mandatinga
minimal level of normative fairness, thereby occasioning a measure of MS-refugee,
and incidentally, MS-MS fairness in solidarity, are restricted to making the
mere best out of a bad, legal situation. An asylum system that is, both,
premised upon, and conducive to, MS promulgation of unfairness, in conjunction
with its attendant, subversive effect on legal infidelity and trust, can never
breed the model of ‘dual’ solidarity proposed as necessary to successfully
address the refugee crisis.

Germany: Leading the Way or Perpetuating the Crisis?

Thus
far, Northern MSs not directly affected by the refugee crisis have been
depicted, largely in national self-interest, as unwilling to assume
responsibility, therefore inhibiting the generation of any discernable form of
‘dual’ solidarity.

However, it is worth, briefly, exploring the notable exception that is Germany. In August of 2015, having declared the Dublin mechanism “obsolete”,[149] German Chancellor Angela Merkel invoked ‘the sovereignty clause’[150] of Dublin III,[151] circumventing the ‘First State of Arrival’ rule and allowing all Syrian refugees, who represent the overwhelming majority of the incoming refugee flow,[152] to apply for asylum in Germany. Germany’s Interior Minister, Francois Heisbourg, had estimated that up to 800,00 Syrians would have been seeking refuge in Germany by the end of 2015.[153] By contrast, the United Kingdom has pledged to settle 20,000 by 2020.[154]

A
thoroughly humane, and indeed necessary, policy,[155]
it was also fundamentally grounded in a scarce appreciation of fairness for
‘third country nationals’, or refugees, as provided for in Article 62(2) TFEU.

Yet,
although well intentioned, the policy is demonstrative of the inherent danger
that attaches to unilateral acts of solidarity, and by logical extension, the
importance of a ‘dual’ conception of solidarity. In what Pascouaulabels an “unprecedented domino
effect”,[156]
Central and Eastern European MSs utilised Germany’s unilateralism so as to
wholly repudiate their obligations of responsibility, with Victor Orban, Hungary’s
colourful, right-wing Prime Minister, asserting that “it is not a European, but
a German problem”, as Merkel’s announcement had functioned as an unwelcome
‘pull factor’.[157]
Austria responded to the ‘Merkel plan’ by facilitating the onward movement of
thousands of refugees into Germany, before initiating the construction of a
fence at their internal border with Slovenia in order to prevent entry via the
Balkan route.[158]
Sweden, Denmark, France, Belgium and Norway[159]
have also, following Merkel’s bold declaration, reintroduced internal borders
in the Schengen area,[160]
a legally equivocal measure[161]
that risks stranding refugees, forcing them, as ECRE describes, to “sleep
outside for days, in the cold and without food”.[162]

Hence,
Germany’s promulgation of unilateral solidarity, somewhat ironically, compromised
the tenets fairness and fidelity, rather than advanced them. More significant,
however, was its deleterious impression on the political relations between
Germany and other MSs, which critically endangered trust – the “oxygen” that affords
solidarity life[163]
– as required between MSs in order to found a successful response.

Conclusion

The
very nature of Dublin III’s securitised premise renders the Regulation
constitutively unfair, shifting the refugee ‘burden’ from Northern MSs to those
at Europe’s territorial borders. Yet, the EU’s failure to, following the 2013
recast process, forgo the ‘First State of Arrival’ rule, and its inexorable bearing
on Article 80 fairness in solidarity, has triggered several, attendant
responsive failings at the hands of Southern MSs unable or unwilling to offer
adherence to the ‘cooperative virtues’ of Article 62(2) TFEU refugee fairness,
or fidelity. MS trust is, accordingly, left devastated; refugees engage in
secondary movement[164]
that is illegally facilitated by overburdened MSs, accelerating a political
tension that the North-South MS divide, in conjunction with Dublin’s pretence
of ‘mutual trust’, continues to foster. Despite the Courts’ best endeavours,
their ultimate bearing can only be peripheral in an asylum system that is
fundamentally flawed, and so antagonistic to the realisation of ‘dual’
solidarity required in order to successfully address the crisis.

4.
At the Border

Whilst
a consideration of the CEAS and Dublin III is important to an evaluation of the
EU and its address of the crisis, the relative, operational condition of an
asylum system is immaterial if the refugee is incapable of accessing it. Of equal
significance, therefore, is the consideration of whether the EU has,beyond its external border, addressed
the crisis in a manner conducive to the generation of ‘dual’ solidarity.

4.1
Visa Restrictions and Carrier Sanctions

That
thousands of refugees have, and are, dying in their seaborne endeavour to reach
Europe is now something of a distressing truism.[165]
Yet, often lost in the mire of such discussion is why such journeys are undertaken at all. It is not prima facie apparent why an
asylum-seeker would be inhibited from, for example, boarding a plane bound for
Europe.[166]

The
seldom-discussed answer, however, lays in the aggregate effect of EU visa restrictions
and carrier sanctions. Although an established component of the EU’s legal
infrastructure prior to the Arab Spring, the measures’ inadequacies, in
necessitating a statistically unprecedented number of jeopardous voyages,[167]
have been alarmingly exposed by the extant crisis.

The
EU’s common visa policy derives from the Schengen acquis, founded on the Schengen
Convention 1990,[168]
which has since been developed by, inter
alia, the establishment of the Schengen Borders Code (SBC)[169]
and Visa Code (SVC).[170]
In order to ensure the prohibitive efficacy of visa requirements, MSs, at the
behest of Article 26(2) and 26(3) of the Schengen Convention, alongside a more
recent EU Directive,[171]
have instituted strict liability sanctions on transportation service providers[172]
who transport, to MS borders, passengers who lack requisite travel documents,
including a Schengen Visa.[173]

4.1.1 Visa Restrictions, Carrier
Sanctions and Solidarity

The
central concern, therefore, is whether the promulgation of these two measures,
during a period of acute crisis, constitutes an appreciation of the ‘dual’
solidarity conceived as necessary in order to successfully address the crisis.

Narrowly
considered, such dualism might plausibly be realised. The institution of a
common visa policy follows from a MSs’ “right to control the entry of
non-nationals into its territory”,[174]
whilst carrier sanctions supplement this legitimate determination in a mutually
cost-effective manner;[175]
the procurement of fairness, in an Article 80 TFEU, interstate form being the
ostensive, collective result. A normative, MS-refugee realisation of fairness
has also been implicitly attributed to the legislative status quo, with
assertions that it bolsters the legal position of those who have already
arrived,[176]
and that refugees, in fact, want to remain in their country of birth.[177]
The generation of trust necessarily follows the “cooperative climate” that is
fostered by the faithful implementation of these measures.[178]

Yet,
this limited characterisation is conspicuously flawed. Whilst these procedures,
in a similar manner to the CEAS, might procure solidarity between
geographically protected MSs, it is their institution that subsequently
engenders the initial overburdening of Southern MSs, which then actuates the suo jure unfairness of Dublin III.
Further, in exporting border control beyond the EU’s geographical territory,
the measures advance a securitisation agenda driven by “an insatiable appetite
for control”[179]
that, as illustrated by the vast, watery grave of the Mediterranean sea, appears
contemptuous of fairness in a normative, Article 62(2) TFEU regard.

Most
contentious, however, is the ‘dual’ solidarity tenet of fidelity. Carrier
sanctions operate so as to “change the territorial gatekeepers to include
private agents”,[180]
shifting the burden of asylum determination from the MS to a profit-driven,
corporate entity. The prospect of economic penalisation[181]
invariably realises a preventative logic of “if in doubt, leave them out”,[182]
meaning that asylum-seekers, having failed to procure a visa,[183]
face rejection irrespective of protectionist concern. Yet, as refugee status is
dependant upon the individual being “outside the country of his nationality”,[184]
the Article 33(1) principle of non-refoulement
is reputedly unengaged.[185]
Indeed, this limitation ratione peronsae
was successfully argued before the House of Lords in R v Immigration Officer at Prague Airport, where the stationing of immigration
officers at Prague Airport in order to ‘pre-clear’ passengers was held not to infringe
Article 33(1) “for [the applicants] had at no stage been outside the country of
their nationality”.[186]
 

However,
the operation of territoriality as a hook upon which international protection
hangs is unconvincing. Certainly, the House of Lords’ restrictive construal of
Article 33(1) is not, necessarily, indicative of universal, legal consensus. Lord
Bingham, in reaching his judgment, definitionally correlated ‘refouler’, as employed in Article 33(1),
and ‘return’, thereby restricting the scope of Article 33(1) to “refugees who
had already entered a country”.[187]
Yet, the basis for his Lordship’s terminological synonymy is unclear. Indeed, it
has been suggested that ‘return’ and ‘refouler’
are substantively divergent terms; the latter encompassing meanings such as
“repel”, “repulse” and “drive back”.[188]
The UNHCR has, in light of this comparatively broad comprehension of ‘refouler’, therefore warned against
impressing Article 33(1) with a territorial restriction,[189]
a determination that accords with the European Courts’ recent, teleological
approach to the law.[190]
Hence, it can plausibly be concluded that, in the words of Lauterpacht and
Bethlehem, “rejection at the frontier [on account of visa restrictions and/or
carrier sanctions]…would be incompatible with the terms of Article 33(1)”,[191]
rendering their continued imposition, in light of the crisis, inviolate of the
‘virtue’ of fidelity, and therefore ‘dual’ solidarity.

4.1.3 Koushkaki: A Right to a Visa?

Despite
the obstruction posed by visa requirements and carrier sanctions to ‘dual’
solidarity, the recent CJEU decision of Koushkaki[192]
might be understood as mandating, to
asylum-seekers,the provision of a
Schengen visa, an understanding that renders extraneous the actuality of
carrier sanctions[193]
and results, somewhat inadvertently, in an imposition of something akin to
‘dual’ solidarity.

The
case concerned a request for a preliminary ruling from the Berlin
Administrative Courtasking, inter alia, whether the competent
authorities of a MS[194]
can refuse the provision of a ‘uniform’ visa[195]
to an applicant who nonetheless fulfils the entry conditions stipulated in
Article 5(1) of the SBC,[196]
where none of the grounds for refusal listed in Articles 32(1)[197]
or 35(6) of the SVC are applicable. Whilst the Advocate-General had refused
such a right,[198]
the CJEU adopted a different approach, affirming the legislative grounds for
refusal to be exhaustive in order to aid the harmonisation of visa policy.[199]
Hence, where an applicant fulfils the stipulated criteria, and the grounds for
refusal are inapplicable, Koushkaki entails
that a competent MS authority cannot refuse the provision of a ‘uniform’ Schengen
visa.

However,
the judgement’s relevancelies in its
analogical application to the allocation of visas with limited territorial
validity (LTV).[200]

Article
25(1) of the SVC provides that an LTV “shall” be issued if a MS considers it
“necessary on humanitarian grounds, for reasons of national interest orbecause of international obligations”.[201]
Whilst appearing to grant discretion, in that a MS must “consider it necessary”
to provide the visa, the international obligation on MSs to admit those seeking
protection manifests,[202]
Peers observes, as an obligation to
issue the LTV visa.[203]
In other words, “shall” overrides the discretionary nature of the words
“considers it necessary”. In addition, Article 31(1) of the Refugee Convention permits
a breach of national immigration law where a need exists to flee persecution[204],
an understanding that renders the asylum-seeker’s requisite dishonesty – in
that he or she would not realistically consider return following the visa’s
expiry[205]
– legally non-actionable.

Therefore,
as the European Parliament has now acknowledged, the judgement appears to require
MSs to issue a LTV visa where this follows from their commitment of fidelity to
international human rights obligations[206],
an outcome that could, in its capacity to effectuate legal migration routes, energise
Article 80 and 62(2) TFEU understandings of fairness in solidarity, with the ‘virtue’
of trust afforded an opportunity to prosper in an EU where the dividing line
between North and South loses its refulgence.

Unfortunately,
however, the case has not been construed as conferring any legal obligation on
MSs, authorising the dual-application of visa restrictions and carrier
sanctions to continue dismantling the substratum of ‘dual’ solidarity. Whilst
unsurprising, in that it operates contra
the immediate interests of most MSs, it is once more illustrative of the EU’s
failure to adequately address the refugee crisis.

4.2. Frontex

Having delineated the
EU’s role in obviating safe, legal avenues into Europe, a consideration of how
the EU has managed its external border, in view of the crisis, logically
follows.

Established
pursuant to Articles 62(2)(a) and 66 of the Nice Treaty,[207]
in pursuit of a “more effective…application of existing and future Community
measures relating to the management of external borders”,[208]
Frontex is charged with coordinating the operational activities of MSs at the
EU’s external frontiers.[209]
Although an intergovernmental agency[210]
lacking independent executive power[211], its basic raison
d’être, the
facilitation of MS cooperation,[212]
suggests that Frontex is uniquely placed to, as Jorry observes, “foster the principle
of solidarity among MSs”[213]
through a facilitation of interstate trust that has been, in the wake of
crisis, so acutely undermined by the Dublin Regulation. In fact, “promoting
solidarity” was explicitly articulated as an objective of the body in its
foundational legal instrument.[214]

Despite its basic promise, however,
Frontex’s securitised mandate of deterrence, compounded by a lack of political
autonomy has stymied any serious prospect of inducing ‘dual’ solidarity in
response to the crisis.

4.2.1 Securitisation and Fairness
at the Border

Analogously
to Dublin III and its securitised, ‘First State of Arrival’ rule, a dialectic, in
a post-9/11 world of steadily escalating xenophobia,[215]
is regularly presented between border security and refugee welfare;[216]
or interstatesolidarity[217]
and MS-refugeesolidarity. Hence,
the procurement of a balance between the two is often stifled: fairness, in
light of the afore-described threat-conferring asylum-seeker,[218]
together with the attendant imperative of security, is rendered a secondary
consideration.[219]

The
EU’s adoption, in November 2014, of Frontex-coordinated Joint Operation Triton, is instructive in this regard.[220]
The Operation was undertaken following the EU’s refusal to fund Mare Nostrum, an Italian Search and
Rescue (SAR) Operation which had rescued 150,810 persons during its 364-day
operation on the Mediterranean,[221]
drawing praise from a number of NGO’s for its humanitarian success.[222]
Yet, the EU’s implementation of JO Triton
was, prima facie, a prudent initiative; a European crisis ultimately demands a
European, collective response.[223]
The MS coordination required necessarily breed’s mutual trust in a manner that
Italy’s unilateralism could not have.

However,
as identified by Frontex’s interim director, a “fundamental difference” exists
between the two operations: Mare Nostrum
was a “seek and rescue operation”, whereas Triton
is premised on “border control”.[224]
Given its narrower, security emphasis, it was allocated just €3 million a month
– a third of what Italy had committed on its own – whilst its operational
radius was reduced from 100 nautical miles to 30.[225]
Unsurprisingly this “contributed to a dramatic increase
in migrant and refugee deaths” –
a consequence, primarily, of boats capsizing in areas not covered by Triton’s
comparatively small mandate area.[226]

Driven
by an atypical, normative regard for Article 62(2) TFEU fairness, Mare Nostrum constituted a promising
manifestation of MS-refugee solidarity. However, as illustrated in relation to
Germany,[227]
such unilateralism is of limited, long-term worth unless synthesised with an
interstate, Article 80 TFEU appreciation of fair sharing. In discarding Mare Nostrum’s SAR mandate, the EU
quashed the tenet of fairness upon which Italy’s unilateral expression of
refugee solidarity had stood, replacing it with a securitised framework that
jeopardised the lives of thousands following the Spring.

Yet,
restrictive measures, such as JO Triton,
are not only the product of a
threat-based politico-legal narrative, but serve to positively reinforce it. In this regard, border
securitisation is self-perpetuating – it is its own, primary source of
legitimation, with one security measure likely to expedite the implementation
of another. [228]
For example, the EU’s adoption of Triton
was preceded by the EUROSUR regulation[229],
implemented in late 2013 for the purpose of detecting, preventing and combating illegal immigration and cross-border crime[230]under the operational supervision of Frontex,[231]
whilst the Commission’s proposals to reform Frontex in 2016[232]
have already been criticised for seeking to do “too much in the area of border
controls…and too little in the area of asylum”, with no significant attempt
made to address the humanitarian or protection needs of refugees.[233]

Hence,
the EU’s securitisation of Frontex’s mandate, both for its immediate and
incidental effects, is fundamentally antagonistic to an appreciation of
fairness grounded in distributive justice, which, ergo, thwarts the generation
of ‘dual’ solidarity.

4.2.2 Securitisation and Fidelity
at the Border

Yet,
the EU’s failure to exhibit fairness at the border has, somewhat predictably,
obstructed adherence to the tenet of fidelity, with Frontex long-denounced for its
alleged human rights violations.[234]
In particular, following the onset of crisis, it has been suspected of
knowingly exposing refugees to inhuman or degrading treatment, contrary to
Article 3 ECHR, by transferring them to deficient, Greek detention facilities.[235]
Problematically however, whilst successive amendments to the Frontex regulation,
most recently in 2014,[236]
together with initiatives such as EUROSUR, have significantly strengthened its
operational, deterrence capabilities,[237]
Frontex lacks an accountability mechanism.[238]
Ultimate, legal responsibility for rights violations committed during its JOs
is therefore left with the national competent authority of the MS.[239]
In lacking bona fide independence
from national politics,[240]
Frontex, acts in a “blind spot”[241]
of international responsibility.

In
circumstances where Frontex does, in fact, operate in breach of international
human rights obligations, the refugees’ right to redress is glaringly inhibited.
However, a less apparent danger lies within this lack of accountability. As Langford
has observed, rather than perpetrate rights violations, Frontex’s role is often
that of a scapegoat.[242]
For example, having been implicated in the Italian push-back operation
bilaterally agreed with Libya,[243]
Frontex responded with “categorical” denial of involvement,[244]
an assertion corroborated by Brady, of the Centre for European Reform, who posits
that Frontex merely exposed the operation, rather than having actively participated.[245]
Hence, the agency’s lack of autonomy “leaves the door wide open to a ‘blame
game’ between the European Union (its Agency) and its Member States”; [246]
its unaccountability, otherwise put, makes it both an easy, and disconcerting,
scapegoat for MSs, leaving the asylum-seeker with no legal redress, even where
the MS is the principal rights violator.

The
2014 Frontex regulation, in conjunction with the agency’s adoption of a 2011 Fundamental
Rights Strategy,[247]
has nonetheless been praised as evidencing a regard for its obligation of legal
fidelity to international human rights,[248]
thereby mitigating the difficulties pertaining to Frontex’s legal accountability.[249]
Yet, Campesi has noted a troublesome paradox; the increased assumption of a
‘rights’ discourse, rather than improve legal fidelity, assists in cloaking violations
that are, in fact, committed by Frontex, whilst simultaneously delegitimising
criticism of the agency,[250]
a notion that is of particular concernment in light of an intensive,
institutional focus on securitisation.The
dual-promulgation of a securitised mandate, alongside a newfound ‘appreciation’
for legal fidelity, might, therefore, serve to subvert, rather than empower
this ‘virtue’ of ‘dual’ solidarity.

Thus,
in pursuing an exclusionary agenda of securitisation through the expansion of
Frontex, the EU is liable to increase rights violations, whilst generating and
aggravating gaps in legal responsibility and accountability.[251]
Further, the ‘blame game’ that then ensues hampers the generation of trust, for
which Frontex could have been a rare, post-crisis source.

4.2.3 Dublin Compounded?

Yet,
nowhere is Frontex’s squandered potential as a trust-fostering mechanism better
illustrated than in the EU’s failure to address, in its 2014 mandate, a major,
political bone of contention: namely that of disembarkation, undermining its
own, maiden call for an approbation of Article 80 TFEU solidarity.[252]

Indeed,
Article 10 of the Regulation provides that disembarkation is to be executed
effectively and rapidly in “a place of safety”[253]which ordinarily denotes the closest
port of the MS responsible for the SAR area.[254]
However, the Article expressly stipulates that disembarkation imposes no
obligations on non-participatory MSs.[255]
Accordingly, rather than adjudge rescued individuals an EU responsibility,[256]
as championed by the UNHCR following the crisis,[257]
the Regulation de facto imposes,on coastal MSs, almost total
responsibility for those rescued at sea. Not only, therefore, does the
Regulation “risk echoing” the Dublin system,[258]
but it compounds Dublin’s inherent deficiencies,[259]
which logically begets the possibility of refoulement,
or, as is more likely, indirect refoulement,
irrespective of the regulation’s explicit interdiction of the act.[260]

The
Regulation does, however, explicitly incorporate a “solidarity mechanism” in Article
12(1). It provides that a MS “faced with a situation of urgent and exceptional
pressure at its external border shall be able to request” assistance from
Frontex and/or Rapid Border Intervention Teams (RABITs).[261]
RABITS, in particular, are unusual in their predication upon a principle of
“compulsory solidarity”[262]:
MSs are compelled to contribute
border guards into a “Rapid Pool”[263]
and deploy them upon request.[264]
Although a welcome inclusion,[265]
in that compulsory, emergency assistance provides an encouraging manifestation
of interstate solidarity, it does nothing to mitigate the ultimate problem of
disembarkation. Indeed, given the absence of a burden-sharing mechanism, or the
imposition, on Northern MSs, of any meaningful assumption of responsibility,
the Regulation appears to merely “masquerade
unresolved tensions” between MSs.[266] Frontex, as a
trust-arousing instrument, therefore fails.

4.3 Conclusion

Fischer-Lescano et
al have persuasively contended that the Article 18 EUCFR right to asylum, in
conjunction with the principle of non-refoulement, “creates an obligation for European border authorities
to provide active protection” for asylum-seekers.[267] Yet, in precluding safe,
legal passage into Europe, whilst pursuing a self-legitimating agenda of
securitisation at the border, the EU has renounced any genuine, protectionist
notion, facilitating the death of thousands in the Mediterranean and
perpetuating the critical unfairness,
attendant infidelity and MS distrust that stems from the Dublin Regulation,
despite the CJEU’s sustained attempts to procure a semblance of ‘dual’
solidarity where such commitment from MSs is lacking.

Having contended that the EU has
failed, in its address of the crisis, to exhibit the necessary ‘virtues’ of
fairness, fidelity and trust, it is instructive, now, to consider how a
successful EU response, informed by the tenets of ‘dual’ solidarity, might practically
manifest.

5. Moving Forward

The
pursuit of an effective, efficient solution to the problem of refugee
management is a perennial,[268]
but increasingly desperate pursuit. The CEAS, alongside a system of coordinated
border procedures, afforded
an opportunity to improve and harmonise procedures and standards of protection,
whilst minimising casualties at sea; ‘dual’ solidarity as the binding thread. However, the three ‘virtues of cooperative
justice’ that underlie this solidarity, in the wake of crisis, have been
neglected: rather than a principle with legal
implications, ‘dual’ solidarity has been construed as
a mere cursory, moral commitment to be sacrificed at the exclusory alter of security and national self-interest.

Accordingly, as Türk proposes,
“serious thought should be given to the development of a supranational
arrangement exercised by the EU rather than individual state institutions”.[269]
This would leapfrog the process of harmonisation apropos the administration of
asylum claims,[270]
ensure an equitable mechanism of burden-sharing, whilst safeguarding proper
adherence to international obligations.[271]

5.1 A Policy Founded on Dual
Solidarity

The key to a
system of effective migration management, as Castles observes, lies in reducing
North-South MS inequality.[272] In this vein, the CEPS has lucidly espoused what
has progressively become the favoured, supranational ideal amongst legal
commentators:[273]
a Central European Asylum Agency would be entrusted with processing asylum
applications and allocating responsibility for refugees between MSs,[274]
assessed by reference to MS population, size of territory and GDP.[275] Uninhibited by the fetter of domestic self-interest,
and uniquely positioned to confer legal implication to the ‘fair sharing’ of
responsibility promulgated by Article 80 TFEU’s espousal of solidarity, the
proposal advances significantly on the connatural injustice that pervades the
Dublin Regulation.

Whilst
conducive to rational, MS-MS fairness, the model’s coercive nature nonetheless obstructs
its full capacity to realise MS-refugee solidarity.[276]
Therefore, as the UNHCR has observed, in order to attain an efficient,
human-rights compliant system of asylum and relocation, considerations
pertaining to family, education, religion and language must assume commensurate
significance,[277]
an observation that is firmly in-keeping with the protectionist, teleological
approach adopted recently by the European Courts.[278]

A
supranational, refugee-orientated model of asylum-processing and ‘burden’-sharing,
therefore, whilst ameliorating a North-South disparity that presently inhibits
interstate solidarity, also breathes life into the Article 62(2) TFEU normative
obligation of fairness towards third
country nationals. In addition, this demonstration of MS-refugee fairness
ensures the trust that is necessarily fostered by supranational coordination[279]
is not subverted by the actuality of MS-facilitated secondary movement,[280]
providing the system with a political and practical durability that the CEAS,
underpinned by the Dublin Regulation, patently lacks.[281]

In
fact, a sincere commitment to the ‘cooperative virtue’ of fidelity could even mandate
the development of such an agency. All EU MSs are all bound by the same European
and international legal obligations, ranging from the 1951 Refugee Convention
to, most recently, the EUFCR. Hence, MSs have agreed to treat refugees in an
equivalent manner, and to accord them the same rights and benefits. Hence, it
might be concluded, in a similar vein to Goodwin-Gill, that “national refugee
status determination systems are redundant”.[282]
If the current, intergovernmental institutional arrangement inexorably results
in legal infidelity, then supranationalism, in the manner advocated, is merely
a manifestation of MSs’ existing, international commitments.

By
virtue of geographical location, Southern MS’s will, nonetheless, continue to
shoulder a disproportionate burden, even if only temporarily. The provision of
EU funds, an economic manifestation of Article 80 TFEU interstate solidarity,[283]
should be, and has been, provided in mitigation. Indeed, the EU’s Asylum,
Migration and Integration Fund has allocated over €7 billion towards the
integration and protection of refugees for the seven years between 2014 and
2020.[284]
By contrast, just €628 million had been allocated for the 2008-2013 period.[285]
Yet, the provision of finance should not, as certain MSs have tacitly suggested,[286]
obviate the demand for active participation in a system refugee distribution. A
displacement of MS responsibility at the alter of financial provision appears
incongruous with a sincere commitment to the “fair sharing of responsibility”,
as required by Article 80 TFEU, particularly given the objective limits to the
logistical capacity of Southern MSs,[287]
which could be understood as rendering the simple provision of funds “symbolic
rather than de facto compensatory”[288]
in a period of acute crisis. Financial relief should, therefore, be understood
as a beneficial, but logically insufficient measure in the pursuit of a
centralised response conducive to the stimulation of ‘dual’ solidarity.

Of course, the centralisation of
asylum policy is not, alone, sufficient in order to comprehensively address the
crisis. The repeal of carrier sanctions, alongside a mandatory grant of
humanitarian visa’s, as promulgated in Koushkaki,
is a vital prerequisite. In so doing, safe, legal migration routes become
viable,[289]
whilstMSs
are placed behind the Rawlsian “veil of ignorance”[290],
thwarting morally arbitrary considerations, such as nationality,[291]
in their grant of asylum, ensuring a procedure in which “the principles of
justice will prevail”.[292]
Further, this de-securitisation of the border should be correspondingly
observed in Frontex’s mandate, ensuring that its operational emphasis is placed
on the saving of lives,[293]
whilst ending its dependency on a rhetoric of deterrence to legitimate defiance
of ‘dual’ solidarity. Political independence would also afford Frontex with an ability
to determine objective standards for its border control operations,[294]
whilst ending the accountability ‘blame game’ between the agency and MS’s,[295]
unleashing its cooperative potential to consolidate trust within the Union.

5.1.1 A Political Reality

Whilst
also seeking to strengthen its operational border capabilities,[296]
it has been reported that the Commission plans to fundamentally alter the CEAS,
replacing the Dublin III ‘First State of Arrival’ rule with system of ‘fair
sharing’, in which responsibility is allocated between MSs according to a set
criteria.[297]
Whilst no reference is made to a central, processing agency, nor that the
refugees’ preferences are to be afforded due relevance, it nonetheless begins
to arouse an understanding of Article 80 TFEU solidarity as requiring more than
cursory, moral commitment, but one with actual, concomitant legal implications.

Yet,
a distinction ought to be drawn between what should be legally effected by the EU in order to successfully
address the crisis, and what can
realistically be achieved.

Indeed,
as with the ‘dual’ solidaristic, supranational ideals delineated above, the
proposal, when analysed through the politically-fractured lens of recent legal history,
will be likely frustrated. Indeed, a similar relocation measure was adopted in
mid-September 2015, with the aim of redistributing 160,000 refugees, stranded
in Greece and Italy, across different MSs.[298]
Yet, as the European Council on Foreign Relations notes, the discrepancy
between MS commitment to principle and their attendant commitment to practice
has been striking.[299]
As of 18 January 2016, 17 MSs have officially made 4,200 places available for
relocation,[300]
with just 322 refugees having been transferred.[301]
Meanwhile, Slovakia[302]
and Hungary[303]
have each filed an action for annulment to the CJEU, challenging the Relocation
Decision’s legality, whilst Sweden have not only suspended their participation,[304]
but have requested to now send, rather than receive, refugees.[305]
The United Kingdom has declined to even partake, refusing to exercise its right
to ‘opt-in’.[306]
Given the dearth of practical, political commitment to a relocation system, it
is hard, as Peers lucidly observes, to envision that it could successfully
manifest as the rule, as suggested,
rather than the exception, despite
its centrality to a successful response grounded in the tenets of ‘dual’
solidarity.[307]
The drain on national sovereignty that entails such a relocation scheme,
whether on an intergovernmental or supranational basis, appears politically insurmountable
against a backdrop of persistent, low economic growth, the rise of right-wing
nationalism, and the pervasive threat of ISIS infiltration, especially in light
of the November 2015 attacks in Paris.[308]

Hence,
whilst an appreciation of what a
successful response, informed by the ‘cooperative virtues’ of solidarity, might
resemble has, very recently, begun to materialise, whether its implementation
is practically feasible appears
somewhat less clear.

6.  Conclusion 

The
ultimate, fons et origio of the
extant crisiscannot, of course, be
attributed to a failure of EU policy. In Syria alone, reports suggest that up
to 470,000[309]
have been killed in the brutal, on-going civil war that has displaced 45% of
the population.[310]
The unprecedented number seeking asylum in the EU is, therefore, both
unsurprising and unavoidable.[311]
However, whilst lacking control over its source,
the EU can determine how the crisis manifests.

It
is in this, important regard that the EU has failed; rather than respond with
the ‘dual’ solidarism that EU MSs should be regarded as legally impelled to
espouse, an agenda motivated by national self-interest, security and deterrence
has been, for the most part, pursued in its place.

This
has beset ‘dual’ solidarity, and its core tenets of fairness, fidelity and
trust – appropriated from Rawls’s ‘cooperative virtues’- with irreconcilable
tensions, precipitating an address that is slow, inefficient, and contemptuous
of the desperate humanitarian dimension. Fidelity to the punitive imposition of
carrier sanctions and visa restrictions is, for example, subversive of
MS-refugee fairness, and, plausibly, of MS fidelity to international
obligations. Meanwhile, loyalty to the ‘virtue’ of trust, as it pertains to the
Dublin regulation, which presupposes the adequacy of MS receptions conditions, risks
jeopardising the principle of non-refoulement,
and therefore, legal fidelity, whilst underscoring a North-South MS divide that
perpetuates political distrust. Even the expression of MS-refugee fairness,
when performed unilaterally, is inexorably at the expense of the trust required
for an efficient, coordinated solidaristic response.

These
fundamental tensions illuminate why, to a large extent, the European Courts –
although a rare, intra-EU adherent of ‘dual’ solidarity – have struggled, in
the absence of an axiological shift in the legislative agenda, to impose a
meaningful conception of ‘dual’ solidarity in light of the crisis.

Hence
an asylum and border policy founded on the precepts of ‘dual’ solidarity, with
Article 62(2) and 80 TFEU as the legal touchstones, is urgently required. This
would, ideally, realise a centralised asylum system, complete with a
supranational relocation mechanism, in conjunction with a de-securitised
mandate for the border.

Yet,
an unfortunate, inhibitive paradox exists: the graver the crisis becomes, and
the more an efficient, centrally-coordinated response is necessitated, the more
that certain, particularly Northern, MSs demand a restitution of national
asylum control and border sovereignty. Politically, therefore, a ‘dual’
solidaristic response appears difficult.

Yet,
as Martin Schulz, President of the European Parliament has observed, failing to
successfully address the crisis “would endanger more than just the rules of
Dublin and Schengen”.[312]
Indeed, if Article 80 TFEU’s recent, explicit legal enshrinement of solidarity in
the field of asylum and border policy is insufficient to energise the EU’s
foundational notion – that of common problems solved on the basis of a fair
coexistence[313]
– then the future of the EU as a cooperative, political union is inexorably
mired with uncertainty.

9994 words

Table of Cases

UK Cases

• Immigration
  Officer at Prague Airport [2004] UKHL 55.

European Cases

ECtHR
Cases

• AS v Switzerland,
  Application No. 39350/13, judgment of 30 June 2015 (Second Section)
• Bosphorus v Ireland App no 45036/98, judgment of 30
  June 2005 (Grand Chamber)
• Hirsi
  Jamaa and Others v Italy, Application No. 27765/09, judgment
  of 23 February 2012 (Grand Chamber)
• KRS
  v the United Kingdom, Application No. 32733/08 (decision on admissibility),
  judgment of 2 December 2008 (Fourth Section)
• N.D.
  and N.T. v. Spain (no. 8675/15 and no. 8697/15)
• Tarakhel v Switzerland, Application no.
  29217/12, judgment of 04 November 2014 (Grand Chamber)

CJEU
Cases

• Commission
  v. Great Britain C-419/1978
• Commission
  v. Italy C-102/1973
• Halaf v Darzhavna Agentsia Za
  Bezhantsite Pri Ministerskia Savet, C-528/11, judgment of 30 May 2013 (Fourth
  Chamber of the CJEU)
• Hungary
  v Council pending case C-647/15
• Joined
  Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement
  of 21 December 2011 (Grand Chamber of the CJEU)
• Joined
  Cases of NS v United Kingdom and ME v Ireland, C-411-1- and C-493-10, judgement
  of 21 December 2011 (Grand Chamber of the CJEU)
• K v Bundesasylamt (Austria), C-245/11, judgment of 06
  November 2012 (Grand Chamber of the CJEU)
• MA, BT, DA v Secretary of State for the Home
  Department, C-648/11, judgment of 06 June 2013 (Fourth Chamber of the CJEU)
• MSS
  v Belgium and Greece App no 30696/09 (ECHR, 21 January 2011) [251]
• Opinion
  C-2/13, judgment of 18 December 2014 (Full Court)
• Rahmanian
  Koushkaki v Germany, C-84/12, judgement of 19 December 2013 (Grand Chamber)
• Rewe-Zentrale
  AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) Case 120/78,
  [1979] ECR 649
• Shamso Abdullahi v
  Bundesasylamt, Case C-394/12,
  judgment of 10 December 2013 (Grand Chamber of the CJEU)
• Slovakia
  v Council, pending case C-643/15.

Other Jurisdictions

• Sale,
  Acting Commissioner, Immigration and Naturalization Service et al v Haitian
  Centers Council Inc et al 509 US 155 (US SC, Jun. 21, 1993).

Table of Legislation

Treaties

EU Treaties

• Consolidated
  Version of the Treaty on the Functioning of the European Union, 26 December
  October 2012 2010 OJ C83/47
• Treaty of Lisbon amending the Treaty on European Union
  and the Treaty establishing the European Community, signed Lisbon, 13 December
  2007, OJ C 306

—
Charter of
Fundamental Rights of the European Union 18 December 2000 C 364/01

• Treaty of Nice, Amending the Treaty
  on European Union, 26 February 2001, OJ C 80/10
• Treaty of
  Rome, Treaty Establishing the European Community, 25 March 1957
• Treaty on European Union
  (Consolidated Version), Treaty of Maastricht , 7 February 1992, OJ C 325/5.

International
Treaties

• Convention
  Applying the Schengen Agreement of 14 June 1985 Between the Governments of the
  States of the Benelux Economic Union, the Republic of Germany and the French
  Republic, on the Gradual Abolition of Checks at their Common Borders of 19 June
  1990.
• Convention for the Protection of Human Rights and
  Fundamental Freedoms, adopted Rome 4 November 1950, entered into force 3
  September 1953, 213 UNTS 221 ff.
• Convention Relating to the Status of Refugees, adopted
  Geneva 28 July 1951, entered into force 22 April 1954, 189 UNTS 137 ff.

EU Regulations

• Council Regulation (EC) No 2007/2004 of 26 October
  2004 establishing a European Agency for the Management of Operational
  Cooperation at the External Borders of the Member States of the European Union
• Council Regulation (EU) 656/2014 establishing rules
  for the surveillance of the external sea borders in the context of operational
  cooperation coordinated by the European Agency for the Management of
  Operational Cooperation at the External Borders of the Member States of the
  European Union [2014] OJ L189/93).
• Proposal for a Council Regulation
  establishing a European Agency for the Management of Operational Co-operation
  at the External Borders COM/2003/0687 final – CNS 2003/0273, 11 November 2003
• Reg 343/2003 of 18 February 2003 Establishing
  the Criteria and Mechanisms for Determining the Member State Responsible for
  Examining an Asylum Application Lodged in One of the Member States by
  Third-Country Nationals OJ 50 25 February 2003 1-10
• Reg No 603/2013 of The European Parliament
  and of the Council of 26 June 2013 on the Establishment of ‘EURODAC’ for the
  Comparison of Fingerprints for the Effective Application of Regulation (EU) No
  604/2013 L180/1 28 June 2013
• Regulation
  (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009
  establishing a Community Code on Visas (Visa Code).
• Regulation
  (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007
  establishing a mechanism for the creation of Rapid Border Intervention Teams
  and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism
  and  regulating the tasks and powers of
  guest officers.
• Regulation (EC) No. 562/2006 of the European
  Parliament and of the Council of 15 March 2006 establishing a Community Code on
  the rules governing the movement of persons across borders (Schengen Borders
  Code).
• Regulation (EC) No. 562/2006 of the European
  Parliament and of the Council of 15 March 2006 establishing a Community Code on
  the rules governing the movement of persons across borders (Schengen Borders
  Code).
• Regulation (EU) No 604/2013 of the European Parliament
  and of the Council of 26 June 2013 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, OJ L 180, 29 June 2013
• Regulation
  (EU) No. 439/2010 of the European Parliament and of the Council of 19 May 2010
  establishing a European Asylum Support Office.
• The Eurosur
  Regulation: European Council, 2013b. Regulation (EU) No 1052/2013 of the
  European Parliament and of the Council of 22 October 2013 establishing the
  European Border Surveillance System (Eurosur). European Council, 2013c. 24/25
  October 2013 conclusions.

EU Directives

• Council
  Directive 2001/51/EC of 28 June 2001 Supplementing the Provisions of Article 26
  of the Convention Implementing the Schengen Agreement of 14 June 1985′, 2001.
• Directive 2013/32/EU
  of the European Parliament and of the Council of 26 June 2013 on common
  procedures for granting and withdrawing international protection, OJ L 180, 29
  June 2013
• Directive 2013/33/EU
  of the European Parliament and of the Council of 26 June 2013 laying down
  standards for the reception of applicants for international protection, OJ L
  180, 29 June 2013

EU Decisions

• Council Decision (EU) 2015/1523 of
  14 September 2015 establishing provisional measures in the area of
  international protection for the benefit of Italy and of Greece.

International Principles

• International Maritime Organisation, Principles
  Relating to Administrative Procedures for Disembarking Persons Rescued at Sea,
  22 January 2009, FAL 3/Circ194.

Legislation
From Other Jurisdictions

• The Organic
  Law 4/2000 of 11 January, on the rights and liberties of foreign persons in
  Spain and their social integration, as amended by Organic Law 2/2009, of 11
  December 2009 (‘Aliens Act’).

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  M, ‘Recognising Effective Legal Protection to People Smuggled at Sea, by
  reviewing the EU Legal Framework on Human Trafficking and Solidarity between
  Member States’ (2015) 3 Social Inclusion, 76.
• Zhelyazkova A,
  ‘Complying With EU Directives’ Requirements: The Link Between EU
  Decision-Making And The Correct Transposition Of EU Provisions’ (2013) 20
  Journal of European Public Policy, 702.

Committee
Reports

• European Scrutiny Committee, Fifty-Seventh
  Report – Establishing a European Border Surveillance System (HC 2012-13,
  342-xxi)
• European
  Scrutiny Committee, Twenty-Second Report – Implementation of Migration Hotspots
  in Greece and Italy (HC 2015-16, 342-xxi)
• House of Lords Select Committee on the European Union
  (2001-2002) Asylum Applications – Who Decides?, 19th Report, session 2001-02.

Green
Papers

• European Commission, ‘Green Paper on
  the future Common European Asylum System’ COM (2007) 301 final, Brussels, 6
  June 2007.

Hansard

• HC Deb 7 Sep 2015, vol 599, Col 24
• HC
  Deb 7 September 2015, Vol 599, Col 30

Reports

• Amnesty
  International, ‘The Global Refugee Crisis: A Conspiracy of Neglect’ (Amnesty
  International Publications 2015)
  <http://static.guim.co.uk/ni/1434356535972/The-Global-Refugee-Crisis-a.pdf>
• Amnesty
  International, Europe’s Sinking Shame: The Failure To Save Refugees And
  Migrants At Sea. London: Amnesty International (2015) Amnesty International, –
  Europe’s Sinking Shame: The Failure To Save Refugees And Migrants At Sea.
  London: Amnesty International (2015) 15
  <https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/EUR03143415-26032_Europe%20Sinking%20Shame_Full%20Version?CMD=VEROBJ&MLKOB=33237320303>
• Human
  Rights Watch, ‘The EU’S Dirty Hands’ (2011)
  <https://www.hrw.org/report/2011/09/21/eus-dirty-hands/frontex-involvement-ill-treatment-migrant-detainees-greece>
• Keller S et al., MIGREUROP, ‘Frontex Agency: Which
  Guarantees for Human Rights?’ (2011)<http://www.migreurop.org/IMG/pdf/Frontex-PE-Mig-ENG.pdf
• Syrian
  Center for Policy Research, ‘Confronting Fragmentation: Impact Of Syrian Crisis
  Report’ (2016) 61
  <http://SCPR-report-Confronting-fragmentation-2015-EN.pdf>
• UNHCR,
  Syrians In
  Greece: Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf>

Policy Papers

• Carrera S, De Somer M, Petkova B, The Court of Justice
  of the European Union as a Fundamental Rights Tribunal. In: Challenges for the
  Effective Delivery of Fundamental Rights in the Area of Freedom, Security and
  Justice CEPS. Papers in Liberty and Security, No. 49, (2012)
• Carrera S, Gros D, Guild E ‘What
  Priorities for the New European Agenda on Migration’ (April 2015), CEPS,
  available at: https://www.ceps.eu/system/files/MigrationPriorities.pdf>
• European
  Commission, The Hotspot
  Approach To Managing Exceptional Migratory Flows (2015)
  <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/2_hotspots_en.pdf>
• European Policy Centre, “Heads Buried In The Sand:
  Member States Block Solutions To The Refugee Crisis” (2015) <http://www.epc.eu/documents/uploads/pub_5923_heads_buried_in_the_sand.pdf>
• H.
  Jorry, ‘Construction of a European
  Institutional Model for Managing Operational Cooperation at the EU’s External
  Borders: Is the FRONTEX Agency a decisive step forward? CEPS Challenge Paper,
  No. 6 (2007) 2.
• Raspotnik A, Jacob
  M and Ventura L, Tepsa Brief: The
  Issue Of Solidarity In The European Union (Tepsa 2012) 
  <http://www.tepsa.eu/download/TEPSA%20Policy%20Paper%20The%20issue%20of%20solidarity%20in%20the%20European%20Union.pdf>
• Roos C, Orsini G
  ‘How to Reconcile the EU Border Paradox? The Concurrence of Refugee Reception
  and Deterrence’ (2015) Institute for European Studies Policy
  Brief<http://www.ies.be/files/4:2015%20Policy%20Brief.pdf>
• U.
  Jensen, Humanitarian Visas: Option Or
  Obligation? Policy Department C: Citizens’ Rights and Constitutional
  Affairs (2014) <http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.pdf.>
• Williams R, ‘Beyond Dublin – A
  Discussion Paper for the Greens/EFA in the European Parliament’ (2015) 13.

Other PDF’s

• E. Lauterpacht, D. Bethlehem, ‘The
  Scope And Content Of The Principle Of Non-Refoulement’ (UNHCR, 2001)
  <http://www.unhcr.org/419c75ce4.pd>
• European
  Commission “Asylum, Migration And Integration Fund (AMIF)” (2014)
  <http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/index_en.htm>
• European
  Commission, ‘Communication From The Commission To The European Parliament And
  The Council: A European Border And Coast Guard And Effective Management Of
  Europe’s External Borders’ (ec.europa.eu, 2015)
  <https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-673-EN-F1-1.PDF>
• European Commission,
  ‘Communication from the Commission to the European Parliament, the Council, the
  European Economic and Social Committee and the Committee of the Regions on
  Enhanced Intra-EU Solidarity in the Field of asylum: An EU Agenda for Better
  Responsibility-Sharing and more mutual trust’ (2011)
  <http://ec.europa.eu/dgs/home-affairs/news/intro/docs/201112/1_en_act_part1_v6.pdf.>
• European Commission, Member States’
  Support to Emergency Relocation Mechanism, (2016) available at:
  http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf>
• European
  Parliament, Briefing: Outcome Of The
  Extraordinary European Council Of 23 April 2015 (2015)
  <http://www.europarl.europa.eu/RegData/etudes/brie/2015/547557/eprs_bri(2015)547557_en.pdf.>
• Frontex,
  Frontex Fundamental Rights Strategy (2011). Available at:
  http://frontex.europa.eu/assets/Publications/General/Frontex_Fundamental_Rights_Strategy.pdf
• Nopoor (European
  Commission), “Refugee Crisis And EU Reaction: An Urgent Call For A Clearer And
  More Active Role” (2015)> www.nopoor.eu/download/file/fid/800
• Parliamentary
  Assembly of the Council of Europe, Committee
  on Migration, Refugees and Displaced Persons, ‘After Dublin – The Urgent Need
  For A Real European Asylum System’ (Doc. 13866, 2016)
  http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref
  ViewPDF.asp?FileID=22016&Lang=en

Speeches

• European
  Parliament, ‘Speech By The President Of The European Parliament, Martin Schulz
  At The High-Level Conference On ‘Digital Change In The Creative Economy, Trade
  And Mobility – Opportunities And Options To Shape The Future In Europe’’ (2015)
  27 February 2016.
• Schuman R, ‘La
  Déclaration Schuman Du 9 Mai 1950’ (19 April 2010)
  <http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_fr.htm>

Interviews

• Langford
  LM, Interview with Hugo Brady, ‘Telephone Interview With Hugo Brady, Senior
  Research Fellow, Centre For European Reform’ (2012).

Press Releases

• European
  Commission, ‘European Refugee Fund 2008-2013’ (2008), 4.
  <http://europa.eu/rapid/press-release_IP-08-1658_en.htm>
• European
  Commission, ‘Implementing The Common European Asylum System: Commission
  Escalates 8 Infringement Proceedings’ (2015)
  <http://europa.eu/rapid/press-release_IP-15-6276_en.htm>
• European Commission, ‘Questions And Answers On The
  European Agenda On Migration’ (2015) <http://europa.eu/rapid/press-release_MEMO-15-4957_en.htm>
• European
  Commission, “Commission proposes temporary suspension of Sweden’s obligations
  under the EU relocation mechanism” (2015)<
  http://europa.eu/rapid/press-release_IP-15-6329_en.htm>
• European
  Commission, “Implementing The Common European Asylum System: Commission
  Escalates 8 Infringement Proceedings” (2015)
  <http://europa.eu/rapid/press-release_IP-15-6276_en.htm>
• European
  Parliament, ‘François Hollande And Angela Merkel Face Meps’ (2015)
  <http://www.europarl.europa.eu/news/en/news-room/20150929IPR94921/Fran%C3%A7ois-Hollande-and-Angela-Merkel-face-MEPs>
• Frontex,
  ‘Frontex Is Not Involved In Diversion Activities To Libya’ (2009)
  <http://frontex.europa.eu/newsroom/news_releases/art70.html>
• President of the
  European Commission Partners in Freedom: The EU Response to the Arab Spring
  Opera House Cairo, Egypt, 14 July 2011’ (14 July 2011)
  <http://europa.eu/rapid/press-release_speech-11-523_en.htm?locale=en>

Websites

Blogs

• Brouwer
  E, ‘Migration Flows And The Reintroduction Of Internal Border Controls:
  Assessing Necessity And Proportionality’
  <http://eumigrationlawblog.eu/migration-flows-and-the-reintroduction-of-internal-border-controls-assessing-necessity-and-proportionality/>
• Peers S,
  ‘The Dublin Regulation: Is The End Nigh? Where Should Unaccompanied Children
  Apply For Asylum?’
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• Peers
  S, ‘The Dublin Regulation: Is The End Nigh? Where Should Unaccompanied Children
  Apply For Asylum?’
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• Peers S, ‘The
  Reform Of Frontex: Saving Schengen At Refugees’ Expense?’
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• Peers S, “EU Law Analysis: Tarakhel V Switzerland:
  Another Nail In The Coffin Of The Dublin System?” (Eulawanalysis.blogspot.co.uk, 2014)
  <http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html>
• Peers, S. (2014), “Do potential
  asylum-seekers have the right to a Schengen visa?” EU Law Analysis.
  http://eulawanalysis.blogspot.com/2014/01/do-potential-asylum-seekers-have-right.html

European Commission

• European
  Commission, ‘Social Policy: Summaries Of EU Legislation’ (Ec.europa.eu, 1999)
  <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Aa14000>
• European
  Commission, ‘Temporary Reintroduction Of Border Control’ (Ec.europa.eu,
  2016) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm>
• European
  Commission, ‘Work Programme Of The Commission’ (Ec.europa.eu, 2016)
  <http://ec.europa.eu/atwork/key-documents/index_en.htm>

News

• BBC
  News, ‘Migrant Crisis ‘A German Problem’ – Hungary’s Orban – BBC News’ (2015)
  <http://www.bbc.co.uk/news/world-europe-34136823
• DW,
  ‘De Maiziere: Germany To Receive Up To 800,000 Refugees’ (2016)
  <http://www.dw.com/en/de-maiziere-germany-to-receive-up-to-800000-refugees/a-18658409>
• Maurice
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  <https://euobserver.com/migration/130961>
• PRO
  ASYL, ‘For A European System Of Rescue At Sea!’ (2014)
  <http://www.proasyl.de/en/news/news-english/news/for_a_european_system_of_rescue_at_sea/>
• Robinson
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  (Financial Times, 2016)
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• UNHCR
  – Diplomatic row as France closes borders to keep out waves of refugees
  Refugees Daily (2011)
  <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=4dabd11b5>
• Willsher K,
  Kirchgaessner S, ‘Germany and France Demand Binding Refugee Quotas for EU
  Members’ The Guardian (3
  September 2015)
  <http://www.theguardian.com/world/2015/sep/03/germany-france-eu-refugee-quotas-migration-crisis>
• Spiegel
  Online International, ‘A Continent Adrift: Juncker Proposes Fixes To EU’s
  Broken Asylum Policies’ (Speigel Online, 2015)
  <http://www.spiegel.de/international/europe/refugee-crisis-in-europe-exposes-asylum-policy-shortcomings-a-1051481.html>

NGOs

• Amnesty International, ‘A “Blueprint For
  Action” To End Refugee And Migrant Deaths In The Med’ (2015)
  <http://www.amnesty.org.au/news/comments/37039/>
• ECRE,
  ‘Marenostrum To End – New Frontex Operation Will Not Ensure Rescue Of Migrants
  In International Waters – European Council On Refugees And Exiles’ (Ecre.org, 2014)
  <http://ecre.org/component/content/article/70-weekly-bulletin-articles/855-operation-mare-nostrum-to-end-frontex-triton-operation-will-not-ensure-rescue-at-sea-of-migrants-in-international-waters.html>
• ECRE,
  ‘Western Balkans: Refugees Stranded At Borders Face Discrimination With No
  Access To Asylum – European Council On Refugees And Exiles’ (Ecre.org, 2016)
  <http://www.ecre.org/component/content/article/70-weekly-bulletin-articles/1292-western-balkans-refugees-stranded-at-borders-face-discrimination-with-no-access-to-asylum.html>
• Human Rights Watch, ‘Italy-Libya Connection’
  (2009) <https://www.hrw.org/news/2009/09/23/italy-libya-connection>

UNHCR

• UNHCR Agenda for Protection, UN Doc. A/AC.96/965/Add.
  1, 26 June 2002< available at:
  http://www.refworld.org/docid/3d4fd0266.html>
• UNHCR,
  ‘2015 Likely To Break Records For Forced Displacement – Study’ (2015)
  <http://www.unhcr.org/print/5672c2576.html>
• UNHCR,
  ‘Building On The Lessons Learned To Make The Relocation Schemes Work More
  Effectively’ (unhcr.org, 2016)
  <http://www.unhcr.org/569fad556.pdf>
• UNHCR,
  ‘Despite War At Home, More Syrian Refugees Return From Iraq’ (2016)
  <http://www.unhcr.org/56b85b3d6.html>
• UNHCR,
  ‘Numbers Of Refugee Arrivals To Greece Increase Dramatically’ (2015)
  <http://www.unhcr.org/55d3098d6.html>
• UNHCR, ‘Refugees Without An Asylum Country – EXCOM
  Conclusions, 16 October 1979’ (1979)
  <http://www.unhcr.org/3ae68c960.html>
• UNHCR,
  ‘Refugees/Migrants Emergency Response – Mediterranean’ (2016)
  <http://data.unhcr.org/mediterranean/regional.php>
• UNHCR,
  ‘Refugees/Migrants Emergency Response – Mediterranean’ (2016)
  <http://data.unhcr.org/mediterranean/regional.php>
• UNHCR,
  ‘UNHCR – Asylum And Migration’ (2016)
  <http://www.unhcr.org/pages/4a1d406060.html>
• UNHCR,
  ‘UNHCR | Refugees Daily’ (Unhcr.org, 2015)
  <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=564976bc5>
• UNHCR, ‘Germany
  To Take Half A Million Refugees As Greek Isles Overwhelmed’ Refugee Daily (2015)
  <http://www.unhcr.org/cgi bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55efc57e5>
• UNHCR,
  “Crossings Of Mediterranean Sea Exceed 300,000, Including 200,000 To
  Greece” (2015) <http://www.unhcr.org/55e06a5b6.html>
• UNHCR, It’s risky to come to Europe,
  Hungary’s PM tells migrants’ (Unhcr.org, 2015)
  http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55e940a95
• UNHCR,
  Syrians In
  Greece: Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf>
  

Other

• Commissioner for Human Rights, “Spain: Legislation And
  Practice On Immigration And Asylum Must Adhere To Human Rights Standards”
  (2015)
  <http://www.coe.int/en/web/commissioner/-/spain-legislation-and-practice-on-immigration-and-asylum-must-adhere-to-human-rights-standards>
• Dimitriadi
  A, ‘Burden Sharing, Where Art Thou?’ (Ecfr.eu,
  2016)
  <http://www.ecfr.eu/article/commentary_burden_sharing_where_art_thou5003>
• Frontex.europa.eu,
  ‘Frontex | Origin’ <http://frontex.europa.eu/about-frontex/origin/>
• Grabbe H. ‘Saving
  the Euro, Losing Trust’ (opensocietyfoundations.org,
  2012)
  <https://www.opensocietyfoundations.org/voices/saving-the-euro-losing-trust>
• Peers
  S, ‘The Revised “Dublin Rules on Responsibility for Asylum-Seekers: A Missed
  Opportunity’ Statewatch Analysis (2012) 2, <www.statewatch.org/analyses/no-181-dublin.pdf>
• Peers
  S, The second phase of the Common
  European Asylum System: A brave new world – or lipstick on a pig? Statewatch
  Analysis (2013) 16 <http://www.statewatch.org/analyses/no-220-ceas-second-phase.pdf>
• Rona-Tas
  A, ‘Dublin 3 Must Go And We Must Let Refugees Fly | Visegrad Insight’ (Visegradinsight.eu, 2015)
  <http://visegradinsight.eu/dublin-3-must-go-and-we-must-let-refugees-fly/>
• UNHCR ‘International Protection Considerations with
  regard to people fleeing the Syrian Arab Republic, Update II’ (22 October 2013)
  <http://www.refworld.org/ docid/5265184f4.html>

[1] This refers to
the democratic uprisings that arose and spread across the Arab world, beginning
in Tunisia before taking hold in Egypt, Libya, Syria, Yemen, Bahrain, Saudi
Arabia and Jordan. For more on the Arab Spring’s origination see: J. Bowen, “The Arab Uprising: The People Want the Fall
of the Regime” (Simon & Schuster, 2012).

[2] José Manuel Barroso, ‘European Commission –
Press Release – José Manuel Durão Barroso President of the European Commission
Partners in Freedom: The EU Response to the Arab Spring Opera House Cairo,
Egypt, 14 July 2011’ (14 July 2011)
<http://europa.eu/rapid/press-release_SPEECH-11-523_en.htm?locale=en>
accessed 1 December 2015.

[3] ibid.

[4] UNHCR, ‘Refugees/Migrants Emergency
Response – Mediterranean’ (2016) <http://data.unhcr.org/mediterranean/regional.php>
accessed 25 February 2016.

[5] UNHCR, ‘2015 Likely To Break Records
For Forced Displacement – Study’ (2015)
<http://www.unhcr.org/print/5672c2576.html> accessed 4 February 2016.

[6] Amnesty International, ‘The Global Refugee Crisis:
A Conspiracy of Neglect’ (Amnesty International Publications 2015)
<http://static.guim.co.uk/ni/1434356535972/The-Global-Refugee-Crisis-a.pdf>
accessed 1 December 2015.

[7] Nopoor (European Commission), ‘Refugee
Crisis And EU Reaction: An Urgent Call For A Clearer And More Active Role’
(2015) 1.

[8] Regulation (EU) No 604/2013 of the European Parliament
and of the Council of 26 June 2013 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, OJ L 180, 29 June 2013, p. 31 ff.

[9] J. Lenart,
‘’Fortress Europe’: Compliance of the Dublin II Regulation with the European
Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012)
28 Utrecht Journal of International and
European Law 4, 4.

[10] (n. 8) Article 3(2), the ‘First
State of Arrival’ rule.

[11] J. Campbell, “Asylum vs. Sovereignty In The
21st Century: How Nation-State’s Breach International Law To Block Access To
Asylum” (2015) 1 International Journal of
Migration and Border Studies, 1,
1.

[12] J. Rawls, “A Theory of Justice” (HUP, 1971) 472.
Note that the terms ‘tenets’ and ‘cooperative virtues’ will be used
interchangeably in this essay.

[13] R. Schuman, ‘La Déclaration Schuman Du 9
Mai 1950’ (19 April 2010)
<http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_fr.htm>
accessed 4 December 2015.

[14] See generally Article 3 TEU and Article 222 TFEU.

[15] The principle of
solidarity was first recognised as a general principle of EU Law in Commission v. Italy C-102/1973. See also
Commission v. Great Britain C-419/1978.

[16] H. Hestermeyer, ‘Solidarity in
International Environmental and Trade Law’ Coexistence, cooperation and
solidarity’ in H. Hestermeyer and others (eds) (Martinus Nijhoff
Publishers, 2011) 49.

[17] A. McDonnell,
‘Solidarity, Flexibility and the Euro-Crisis: Where Do Principles Fit In? in “The EU After Lisbon: Amending or Coping
with the Existing Treaties?” eds. L.S Rossi, F. Casolari (Springer, 2014)
85.

[18] I.G. Lang, ‘The EU Financial and Migration
Crises: Two Crises – Many Facets of EU Solidarity’ ‘Solidarity – A General
Principle of EU law? (1st edn, Edward Elgar 2015 – forthcoming)’ in A.
Biondi, E. Dagilyte and E. Kucuk (eds), 7.

[19] A. Sangiovanni,
‘Solidarity in the European Union’ (2013) 1 Oxford
Journal of Legal Studies 1, 3.

[20] ibid.

[21] Treaty of Rome,
Treaty Establishing the European Community, 25 March 1957.

[22] P. Hilpold, ‘Understanding Solidarity
within EU Law: An Analysis of the “Islands of Solidarity” with Particular
Regard to Monetary Union’ (2015) 34 Yearbook
of European Law, 257, 260

[23] ibid.

[24] Treaty on
European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992,
OJ C 325/5; 24 December 2002.

[25] M. Bell, ‘Irregular Migrants : Beyond the
Limits of Solidarity?’ in ‘Promoting solidarity in the European Union’ M.
Ross and Y. Borgmann-Prebil (eds) (OUP, 2010), 155.

[26] See the Treaty’s Protocol on Social Policy, which by Art
51 TEU formed part of Union law. It significantly broadened Union competence in
the social-policy field whilst increasing the areas in which measures could be
adopted by qualified majority vote, for a summary of the social changes see: europa.eu, ‘Social Policy: Summaries
Of EU Legislation’ (1999)
<http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Aa14000>
accessed 23 February 2016.

[27] (no 22) 4

[28] R. Wolfrum, ‘Solidarity’ in Dinah Shelton
(ed), The Oxford handbook of international human rights law (OUP,
2013), 418.

[29] ibid.

[30] MSS v Belgium and Greece App no 30696/09
(ECHR, 21 January 2011) [251]

[31] J. Hathaway, ‘Why Refugee Law Still
Matters’ (2007) 8 Melbourne Journal of International Law 89 – 98.

[32] Consolidated
Version of the Treaty on the Functioning of the European Union [2012] OJ
C326/01

[33] Emphasis added.

[34] As described by
J. Habermas, who explains the ‘we perspective’ as a commonality among the members of a community: J. Habermas, “Between Facts and Norms” (Polity Press, 1997) 499.

[35] I. Hartwig, P. Nicolaides, ‘Elusive
Solidarity in an Enlarged European Union’ (2003) 3 EIPAScope, 19-21

[36] (n. 22)

[37] HC Deb 7
September 2015, Vol 599, Col 30

[38] This is not to say that people needing protection are
a burden per se, but merely that
their acceptance necessarily entails, having not yet been integrated into the
local economy, a cost to the social welfare system that cannot be ignored. For
a discussion on the use of the phrase ‘burden’ see: See M. Gottwald, ‘Burden
Sharing and Refugee Protection’ in ‘ The
Oxford Handbook of Refugee and Forced Migration Studies’ Elena
Fiddian-Qasmiyeh and others (eds) (OUP 2014), 525.

[39] (n. 37)

[40] K. Willsher and S. Kirchgaessner, ‘Germany
and France Demand Binding Refugee Quotas for EU Members’ The Guardian (3
September 2015)
<http://www.theguardian.com/world/2015/sep/03/germany-france-eu-refugee-quotas-migration-crisis>
accessed 4 December 2015.

[41]  ibid. 497. Also note that whilst Rawls had
considered peoples, not states, as the relevant actors in reasoning about
justice, he failed to provide an analytically viable distinction between the
two. See: S. Benhabib, The Law of
Peoples, Distributive Justice and Migrants (2004) 72 Fordham Law Review, 1761, 1764

[42] (n. 32)

[43] M. D. Zürcher,“Solidarity,
Recognition and the Community: Phenomenology, Theory and Criticism of
Solidarity” (Tübingen, 1998) 175.

[44] (n. 28)

[45] K.O. Hondrich, C. Koch-Arzberger, Solidarity
in Modern Society (Fischer Paperback Publisher, 1992) 14.

[46] (n. 12) 163.

[47] The nickname
given to a migrant/asylum seeker encampment on the border between two states,
particularly that in the vicinity of Calais, France, where many live whilst
attempting to enter the United Kingdom. 

[48] J. Rawls, “The Law of Peoples” (HUP, 1999) 106. Emphasis added.

[49] A. Sangiovanni,
‘Solidarity in the European Union’ Oxford
Journal of Legal Studies 33 (2013) 1, 3.

[50] S. Derpmann, ‘Solidarity and
Cosmopolitanism’ (2008) 12 Ethical Theory
and Moral Practice, 303, 304.

[51] (n. 12) 62. These
were described by Rawls as goods that are desirable for every human being, and
are basic to the life-plans of individuals.

[52] M. Walzer, ‘Sphere of Justice: A Defence of Pluralism
and Equality’ (Basic Books, 1983) 31.

[53] A. Wildt, ‘Remarks on the Historical Concepts
and Ideas of Solidarity and a Proposed Definition for this Term Today’ in
Giuseppe Orsi (ed), Solidarity (Frankfurt/M, 1995) 45.

[54] Not always though: see “Incentive for Infidelity” at
chapter 3.1.2 of this essay, where ‘fairness’ towards refugees was a
consequence of legal infidelity.

[55] (n. 12) 344.

[56] Convention Relating to the Status of Refugees, adopted
Geneva 28 July 1951, entered into force 22 April 1954, 189 UNTS 137 ff, together with its Protocol Relating to the Status of
Refugees of 31 January 1967.

[57] ibid. Article 1A(2).

[58] UNHCR ‘International Protection Considerations with
regard to people fleeing the Syrian Arab Republic, Update II’ (22 October 2013)
<http://www.refworld.org/ docid/5265184f4.html> accessed 21 Jan 2016. N.B. refugee
status does not depend on formal State recognition. Rather, refugee status is
recognised because the applicant for protection is already a refugee within the
meaning of the Convention.

[59] (n 56) Article 33(1).

[60] Convention for the Protection of Human Rights and
Fundamental Freedoms, adopted Rome 4 November 1950, entered into force 3
September 1953, 213 UNTS 221 ff.

[61] The CJEU had
decided that the draft agreement for accession might risk “adversely affecting
the division of powers between the EU and its Member States”: Opinion C-2/13,
judgment of 18 December 2014 (Full Court). However, accession is back on the
agenda under the European Commission’s programme of work 2016, see: Ec.europa.eu, ‘Work Programme Of The
Commission’ (2016)
<http://ec.europa.eu/atwork/key-documents/index_en.htm> accessed 16
February 2016.

[62] Treaty of Lisbon amending the Treaty on European Union
and the Treaty establishing the European Community, signed Lisbon, 13 December
2007, OJ C 306, 17 December 2007, p. 1 ff.

[63] A. Hurwitz, “The Collective Responsibility of States to
Protect Refugees” (OUP, 2010) 190

[64] Charter of Fundamental Rights of the
European Union 18 December 2000 C 364/01

[65] (n. 62) Article
6(1)

[66] J. Rawls, “A Theory of Justice” (HUP, 1999)
102-105.

[67] ‘Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee
and the Committee of the Regions on Enhanced Intra-EU Solidarity in the Field
of asylum: An EU Agenda for Better Responsibility-Sharing and Mutual Trust’
(2011) <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52011DC0835>
accessed 4 December 2015.

[68] European
Commission (2011) Communication on
Enhanced Intra-EU Solidarity in the Field of Asylum. An EU Agenda for Better
Responsibility-sharing and more Mutual Trust”, Brussels, COM (2011) 835
final (2 December). Whilst EU legal instruments make no express reference to ‘trust’, it is
conceptually well-embedded within the EU’s constitutional framework: See e.g. Case
120/78 Rewe-Zentrale AG v.
Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649.

[69] D.W. Drezner, ‘The Realist Tradition in American
Public Opinion’ (2008) 6 Perspectives of
Politics 51, 54.

[70] V. Mitsilegas,
‘Solidarity and Trust in the Common European Asylum System’ (2014) 2 Comparative Migration Studies 181, 182.

[71] E. Brouwer,
‘Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in
the EU and the Burden of Proof” (2013) 1 Utrecht
Law Review 135, 138.

[72] F. Maiani and C. Hruschka, ‘The Sharing of
Responsibilities in the Dublin Space, between Mutual Trust – and Security for
asylum seekers’ (2011) 2 ASYL 12, 12. The concept of ‘equivalency’ was first
developed in Bosphorus v Ireland App
no 45036/98 (ECtHR, 30 June 2005) [155]-[157].

[73] M. Cases-Cortes,
S. Cobarrubias, J. Pickles, ‘‘Good Neighbours Make Good Fences’: Seahorse
Operations, Borders Externalisation and Extra-Territoriality’ (2014) 1 European and Regional Studies, 1.

[74] The importance
lies, therefore, in the degree of border control implemented. As the UNHCR
note, “while recognizing that border
controls are essential for combatting international crime, including smuggling
and trafficking, UNHCR stresses the need for practical protection safeguards to
ensure that such measures are not applied in an indiscriminate or
disproportionate manner and do not lead to refugees being returned to countries
where their life or liberty would be at risk”: ‘UNHCR –
Asylum And Migration’ (2016) <http://www.unhcr.org/pages/4a1d406060.html>
accessed 18 February 2016.

[75] (n. 66) 102-105.

[76] D.J. Besharov, M.H. Lopez, ‘Adjusting to a World in Motion: Trends in Global Migration and
Migration Policy’ (OUP, 2016) 176.

[77] Directive 2013/33/EU of the European Parliament and of
the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection, OJ L 180, 29 June 2013, p. 96 ff.

[78] Directive 2013/32/EU of the European Parliament and of
the Council of 26 June 2013 on common procedures for granting and withdrawing
international protection, OJ L 180, 29 June 2013, p. 60 ff.

[79] Reg No 603/2013 of The
European Parliament and of the Council of 26 June 2013 on the Establishment of
‘EURODAC’ for the Comparison of Fingerprints for the Effective Application of
Regulation (EU) No 604/2013 L180/128
June 2013

[80] (n. 8) Article 18(1)(a)-(d).

[81] See e.g. Elspeth Guild, “Seeking Asylum: Storm
Clouds Between International Commitments And EU Legislative Measures”
(2004) 29 European Law Review. 198.

[82]  European
Commission, ‘Questions And Answers On The European Agenda On Migration’ (2015)
<http://europa.eu/rapid/press-release_MEMO-15-4957_en.htm> accessed 5
March 2016.

[83] See e.g. Shamso Abdullahi v
Bundesasylamt (Case C-394/12,
judgment of 10 December 2013),where
the CJEU stated that one of the primary objectives of the Dublin Regulation is
the establishment of a clear means of determining quickly theresponsible MS for the processing of
an asylum application in order to not to compromise the aims of the rapid
processing of asylumclaims [59].

[84] See e.g. House of Lords Select Committee on the European Union
(2001-2002) Asylum Applications – Who Decides?, 19th Report, session 2001-02.

[85] Ibid. [27] This
pertains to refugees unable to find a MS willing to examine their asylum
application.

[86] V. Guiraudon ‘European Integration and
Migration Policy: Vertical Policy-making as Venue Shopping’ 38 (2000) Journal
of Common Market Studies, 251. This relates to the phenomenon where multiple
applications or asylum are made across the EU by the same person.

[87] G. Noll ‘Risky Games? A Theoretical Approach to
Burden-Sharing in the Asylum Field’ (2003) 16 Journal of Refugee Studies 236,
252.

[88] M. Penelope
‘Resolution 1373: A Call to Pre-Empt Asylum Seekers? (Or ‘Osama’ the Asylum
Seeker) in “Forced Migration, Human
Rights and Security” ed. J. McAdam (Hart Publishing, 2008) 52.

[89] H. O’Nions, “Asylum – A Right Denied” (Farnham:
Ashgate Publishing 2014) 191

[90] A. Buonfino ‘Between Unity and Plurality: The Politicization
and Securitization of the Discourse of Immigration in Europe’ (2004) 26 New
Political Science 23, 39-40. M. Grewcock, ‘Border Crimes: Australia’s War Against Illicit Migrants’ (Sydney:
Institute of Criminology Press, 2009).

[91] H. Battjes,
‘Mutual Trust in Asylum Matters: The Dublin System’ in The Principle of Mutual Trust in European Asylum, Migration and
Criminal Law (Institute for Multicultural Affairs, 2011) 8-18.

[92] G. Noll, Negotiating Asylum: The EU Acquis,
Extraterritorial Protection and the Common Market of Deflection (Martinus
Nijhoff Publishers 2000) 191.

[93] Note that whilst geographically part of Europe, Norway
is not part of the EU. Nonetheless, it does partake in the Dublin system.

[94] J.P. Brekke,
‘Stuck in Transit: Secondary Migration of Asylum Seekers in Europe, National
Differences, and the Dublin Regulation’ (2015) 28 Journal of Refugee Studies 145.

[95] MSS v Belgium and
Greece, Application No. 30696/09, judgment of 21 January
2011 (ECtHR) [223]-[234]

[96] See e.g. H. Neo and K. Lee, ‘Germany To Take
Half A Million Refugees As Greek Isles Overwhelmed’ UNHCR Refugees Daily
(2015)
<http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55efc57e5>
accessed 24 February 2016

[97] Human Rights Watch, ‘Italy-Libya Connection’
(2009) <https://www.hrw.org/news/2009/09/23/italy-libya-connection>
accessed 24 February 2016.

[98] Hirsi Jamaa and Others v Italy, Application No.27765/09,
judgment of 23 February 2012 (Grand Chamber of the ECtHR) [180].

[99] The Organic Law 4/2000 of 11 January, on the rights and
liberties of foreign persons in Spain and their social integration, as amended
by Organic Law 2/2009, of 11 December 2009 (‘Aliens Act’).

[100]
Commissioner for Human Rights, “Spain: Legislation And Practice On Immigration
And Asylum Must Adhere To Human Rights Standards” (2015)
<http://www.coe.int/en/web/commissioner/-/spain-legislation-and-practice-on-immigration-and-asylum-must-adhere-to-human-rights-standards>
accessed 26 January 2016.

[101] The ECtHR in N.D. and N.T. v. Spain (no. 8675/15 and
no. 8697/15) has requested information from the Spanish government on the
procedures available to asylum applicants at the border of the Spanish enclave
of Melilla.

[102] Regulation (EU)
No. 439/2010 of the European Parliament and of the Council of 19 May 2010
establishing a European Asylum Support Office.

[103] European Commission, ‘Implementing
The Common European Asylum System: Commission Escalates 8 Infringement
Proceedings’ (2015)
<http://europa.eu/rapid/press-release_IP-15-6276_en.htm> accessed 12
February 2016.

[104] E. Brouwer,
‘Eurodac: Its Temptations and Limitations’ (2002) 4 European Journal of Migration and Law 231, 244.

[105] European Scrutiny
Committee, Twenty-Second Report –
Implementation of Migration Hotspots in Greece and Italy (HC 2015-16,
342-xxi) [5.3]

[106] European
Commission, The Hotspot
Approach To Managing Exceptional Migratory Flows (2015) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/2_hotspots_en.pdf>
accessed 26 January 2016.

[107] Similarly see:
UNHCR, ‘Diplomatic row as France closes borders to keep out waves of refugees’
(2011)
<http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=4dabd11b5>
accessed 26 January 2016, where the Italian government distributed permits to
over 22,000 asylum seekers (and sanctioning travel within the extensive
Schengen area) provoking the French government to illegally close its borders
as resentment amid a bitter feud.

[108] Joined Cases of NS v United Kingdom and ME v
Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand
Chamber of the CJEU), [90].

[109] As imposed by the
ECtHR in MSS (n. 30).

[110] J. Bast, “Deepening Supranational
Integration: Interstate Solidarity In EU Migration Law” (2015) 22 European Public Law 1, 10.

[111] Although
pre-CEAS, the notion of effectively rewarding a state for breaching
international obligations in a common system of asylum was discussed in: D.
Anker, J. Fitzpatrick, A Shacknove, “A Crisis and Cure: A Reply to
Hathaway/Neve and Schuck” Harvard Human
Rights Journal 11 (1998) 295, 300

[112] Parliamentary
Assembly of the Council of Europe, Committee on Migration, Refugees and Displaced Persons,
‘After Dublin – The Urgent Need For A Real European Asylum System’ (2016) 11.

[113] European Commission, “Press Release –
Implementing The Common European Asylum System: Commission Escalates 8
Infringement Proceedings” (Europa.eu, 2015)
<http://europa.eu/rapid/press-release_IP-15-6276_en.htm> accessed 26
January 2016.

[114] See e.g. A. Zhelyazkova, “Complying With EU
Directives’ Requirements: The Link Between EU Decision-Making And The Correct
Transposition Of EU Provisions” (2013) 20 Journal
of European Public Policy, 702. where it is noted that compliance rates of
infringement proceedings are uncertain.

[115] Note that whilst the ECtHR is legal body of the Council of Europe and therefore not an institution of the EU, all EU MSs are signatories
to the ECHR and the EU is looking to accede to the ECHR, see (n. 61).

[116] S. Velluti, Reforming The Common European Asylum System – Legislative Developments
And Judicial Activism Of The European Courts, (2015) 27 International Journal of Refugee Law, 519.

[117] S. Carrera, M. De Somer, B. Petkova, The Court of Justice
of the European Union as a Fundamental Rights Tribunal. In: Challenges for the
Effective Delivery of Fundamental Rights in the Area of Freedom, Security and
Justice CEPS. (2012) Papers in Liberty and Security, No. 49.

[118] F. Jacobs, The Sovereignty of Law: the European Way—the
Hamlyn Lectures 2006 (CUP 2007), 54.

[119] KRS v the United Kingdom, Application
No. 32733/08 (decision on admissibility), 2 December 2008 (Fourth Section of
the ECtHR)

[120] ibid. [16]-[17]

[121] ibid. [17]

[122] G. S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception
at Sea and the Principle of Non-Refoulement’, in “Jesuit Refugee Service, Safe and Secure: How do Refugees Experience
Europe’s Borders?” S. Kessler (ed) (JRS, 2011) 12

[123] (n. 30)

[124] Joined Cases of NS v United Kingdom and ME v
Ireland, C-411-1- and C-493-10, judgement of 21 December 2011 (Grand
Chamber of the CJEU)

[125] ibid. [94] N.B. the threshold has since
been incorporated into Article 3(3) of the Dublin Regulation.

[126] Within the
meaning of Article 4 of the European Charter, but also applies to Art 3 ECHR.

[127] C. Costello, The
Human Rights Of Migrants And Refugees In European Law (OUP 2015), 262.

[128] Previously Article 3(2) of the Dublin II Regulation.

[129] (n. 30) [3] 

[130] Shamso Abdullahi v
Bundesasylamt, Case C-394/12,
judgment of 10 December 2013 (Grand Chamber of the CJEU). The Court determined
that a finding of ‘systematic deficiency’ is the only way an applicant might call into question an assumption of MS
responsibility [60].

[131] S. Peers, “EU Law Analysis: Tarakhel V Switzerland:
Another Nail In The Coffin Of The Dublin System?” (Eulawanalysis.blogspot.co.uk,
2014) <http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html>
accessed 26 January 2016.

[132] Tarakhel v
Switzerland, Application no. 29217/12, judgment of 04 November 2014 (Grand
Chamber of the European Court of Human Rights).

[133] C. Costello and M. Mouzourakis, ‘Reflections on reading
Tarakhel: Is ‘How Bad is Bad Enough’ Good Enough?’ (2014) 10 Asiel &
Migrantenrecht, 404, 411.

[134] (n. 131) [104]

[135] ibid. [121]

[136] ibid. [114]

[137] S. Peers, “EU Law Analysis: Tarakhel V Switzerland: Another Nail In The Coffin Of The Dublin
System?” (Eulawanalysis.blogspot.co.uk, 2014)
<http://eulawanalysis.blogspot.co.uk/2014/11/tarakhel-v-switzerland-another-nail-in.html>
accessed 26 January 2016. Whilst a violation was found in the facts in Tarakhel, a return to Italy from
Switzerland was found not to violate Article 3 in the recent case of AS v Switzerland, Application No.
39350/13, judgment of 30 June 2015 (ECtHR)

[138] (n. 30) [358]

[139] The notion that,
upon returning the asylum-seeker to Greece, they risk being directly refouled by the Greek authorities to
Afghanistan

[140] (n. 30) [342]

[141] L.M. Langford, “The Other Euro Crisis:
Rights Violations Under The Common European Asylum System And The Unraveling Of
EU Solidarity” (2013) 26 Harvard
Human Rights Review, 217, 237-238.

[142] K v Bundesasylamt
(Austria), C-245/11, judgment of 06 November 2012 (Grand
Chamber of the CJEU)

[143] (n. 8) Article 12(2). It had been Article
15(2) under the Dublin II Regulation.

[144] MA, BT, DA v
Secretary of State for the Home Department, C-648/11, judgment of 06 June 2013 (Fourth Chamber of the CJEU)

[145] ibid. [55]

[146] European Commission, IP/14/723, Press Relsease,
‘Clearer EU Rules for Unaccompanied Minors Seeking International Protection’
Brussels, 26 June 2014.

[147] (n 116)

[148] C. Kaunert, S.
Leonard, ‘The Development of the EU Asylum Policy: Venue-Shopping in
Perspective’ Journal of European Public
Policy 19 (2012) 1396, 1406.

[149] European Parliament, ‘François
Hollande And Angela Merkel Face Meps’ (2015) <http://www.europarl.europa.eu/news/en/news-room/20150929IPR94921/Fran%C3%A7ois-Hollande-and-Angela-Merkel-face-MEPs>
accessed 25 February 2016.

[150] (n 8) Article 17(1)

[151] The CJEU has confirmed in Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet,
C-528/11, judgment of 30 May 2013 (Fourth Chamber of the CJEU) found that
Member States had unfettered scope to assume responsibility for any asylum
claim that they chose to determine under the sovereignty clause.

[152] The UNHR reported that 82% were Syrian when the
announcement was made: UNHCR,
‘Numbers Of Refugee Arrivals To Greece Increase Dramatically’ (2015)
<http://www.unhcr.org/55d3098d6.html> accessed 26 February 2016.

[153] See: DW, ‘De Maiziere: Germany To Receive Up To 800,000 Refugees’
(2016)
<http://www.dw.com/en/de-maiziere-germany-to-receive-up-to-800000-refugees/a-18658409>
accessed 25 February 2016

[154] HC Deb 7 Sep 2015, vol 599, Col 24.

[155] Germany’s compassion was all the more necessary
practically speaking as refugee flows reached up to 12,000 a day at Munich’s
main railway station in the closing days of summer, overwhelming the local
administration. For more see: F.Heisbourg
‘The Strategic Implications of the Syrian Refugee Crisis’ 57 Survival 7, 12

[156] European Policy Centre, “Heads Buried In The Sand: Member
States Block Solutions To The Refugee Crisis” (2015) 1.
<http://www.epc.eu/documents/uploads/pub_5923_heads_buried_in_the_sand.pdf>
accessed 28 January 2016.

[157] BBC News, ‘Migrant Crisis ‘A German
Problem’ – Hungary’s Orban – BBC News’ (2015)
<http://www.bbc.co.uk/news/world-europe-34136823> accessed 25 February
2016.

[158] UNHCR, ‘Austria to build fence on Slovenia border in new
blow to Schengen pact’ (Unhcr.org, 2015) <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=564976bc5>
accessed 5 March 2016.

[159] Note that Norway is a non-EU State.

[160] European Commission, ‘Temporary
Reintroduction Of Border Control’ (Ec.europa.eu, 2016) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm>
accessed 28 February 2016.

[161] Reintroduction of
border controls performed pursuant to Article 23 of Regulation (EC) No. 562/2006 of the European Parliament and of the
Council of 15 March 2006 establishing a Community Code on the rules governing
the movement of persons across borders (Schengen Borders Code). Yet, questions as
to its legality see: E.
Brouwer, ‘Migration Flows And The Reintroduction Of Internal Border Controls:
Assessing Necessity And Proportionality’ (2015)
<http://eumigrationlawblog.eu/migration-flows-and-the-reintroduction-of-internal-border-controls-assessing-necessity-and-proportionality/>
accessed 28 February 2016.

[162] ECRE, ‘Western Balkans: Refugees
Stranded At Borders Face Discrimination With No Access To Asylum – European
Council On Refugees And Exiles’ (Ecre.org, 2016)
<http://www.ecre.org/component/content/article/70-weekly-bulletin-articles/1292-western-balkans-refugees-stranded-at-borders-face-discrimination-with-no-access-to-asylum.html>
accessed 29 February 2016.

[163] H. Grabbe, ‘Saving the Euro, Losing Trust’
(opensocietyfoundations.org, 27 June 2012) <https://www.opensocietyfoundations.org/voices/saving-the-euro-losing-trust>
accessed 4 December 2015.

[164] That, in 2012,
just 275 Syrians claimed asylum in Greece, with almost 8000 arrests of Syrian
nationals, by Greek authorities, for irregular entry is indicative of this
trend: UNHCR, Syrians In Greece:
Protection Considerations And UNHCR Recommendations (2013)<http://www.unhcr.gr/fileadmin/Greece/News/2012/Syria/pc/Greece_Syria_Note_for_Pressconference_English.pdf>
accessed 26 January 2016.

[165] In the first 8 months of 2015, the Mediterranean witnessed
the drowning of over 2500 refugees en route to Europe: UNHCR, “Crossings Of Mediterranean Sea Exceed 300,000, including 200,000
To Greece” (2015). <http://www.unhcr.org/55e06a5b6.html> accessed 27
January 2016.

[166] As Rona-Tas has observed, a flight from Amman, Jordan
to Berlin, Germany is ~$500. The cost of dangerously traversing from Jordan to
Hungary is counted in thousands: Akos Rona-Tas, ‘Dublin 3 Must Go And We Must Let Refugees
Fly | Visegrad Insight’ (Visegradinsight.eu, 2015)
<http://visegradinsight.eu/dublin-3-must-go-and-we-must-let-refugees-fly/>
accessed 8 February 2016.

[167] G. Van Kessel,
‘Global Migration and Asylum’ (2001) 10 Forced
Migration Review 10, 10.

[168] Convention
Applying the Schengen Agreement of 14 June 1985 Between the Governments of the
States of the Benelux Economic Union, the Republic of Germany and the French
Republic, on the Gradual Abolition of Checks at their Common Borders of 19 June
1990.

[169] Regulation (EC) No. 562/2006 of the European
Parliament and of the Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders (Schengen Borders
Code).

[170] Regulation (EC)
No 810/2009 of the European Parliament and of the Council of 13 July 2009
establishing a Community Code on Visas (Visa Code).

[171] EU 2001/51/EC. This supplements Article 26 of the Schengen
Convention which imposes a threefold obligation on carriers: (i) to return
aliens refused entry into MS territory, (ii) to ensure that aliens transported
hold the relevant documents necessary for entry and (iii) to pay penalties for
transporting for transporting aliens who lack the necessary travel documents.

[172] Such as airlines
and ferry operators.

[173] Whilst Article 26
of the Schengen Convention refers only to ‘travel documents’, which is listed
as a separate requirement to the possession of a valid visa (Article 5(1)(a)
and (b) of the Schengen Borders Code), the original proposal for the Carriers
Liability Directive had included the failure to demonstrate a valid visa as a
ground for the imposition of penalties. Despite its eventual omission, the
bringing of persons into MS territory without a required visa has operated as a
de facto ground for the imposition of
penalties, see: M.D. Heijer, Europe and
Extraterritorial Asylum (Bloomsbury, 2012) 177.

[174] Council of the
European Union, Council Directive 2001/51/EC of 28 June 2001 Supplementing the
Provisions of Article 26 of the Convention Implementing the Schengen Agreement
of 14 June 1985 2001.

[175] T. Rodenhauser,
“Another Brick in the Wall: Carrier Sanctions and the Privatization of
Immigration Control” (2014) 26  International Journal of Refugee Law 223,
224.

[176] T.
Gammeltoft-Hansen, “Access to Asylum: International
Refugee Law and the Globalisation of Migration Control” (CUP, 2011) 174.

[177] UNHCR, ‘Despite War At Home, More
Syrian Refugees Return From Iraq’ (2016)
<http://www.unhcr.org/56b85b3d6.html> accessed 25 February 2016.

[178] S. Scholten, “The Privatisation of Immigration Control
through Carrier Sanctions: The Role of Private Transport Companies in Dutch and
British Immigration Control” (Brill | Nijhoff, 2015) 41.

[179] M. J. Gibney,
‘Beyond the Bounds of Responsibility: Western States and Measures to Prevent
the Arrival of Refugees’, (2005) 22 Global
Migration Perspectives, 1, 9.

[180] S. Scholten, P
Minderhound, “Regulating Immigration Control: Carrier Sanctions in the
Netherlands” (2008) 10 European Journal
of Migration and Law,123,130. This is done in order to reduce the
expenditure required to employ and train staff required in order to implement
extra-territorial border control functions, whilst circumventing issues of
sovereignty: see e.g. P. R. Verkuil, “Outsourcing
Sovereignty: Why Privatization of Government Functions Threatens and What We
Can Do about It” (CUP, 2007) 71.

[181] Article 4(1)(c) of Directive 2001/51/EC provides that
‘the maximum amount of the penalty
imposed as a lump sum for each infringement is not less that EUR 500,000 or
equivalent national currency’.

[182] J.C. Hathaway, The
Rights of Refugees under International Law (CUP 2005) 384.

[183] An asylum-seeker
will rarely have obtained a visa: G.S. Goodwin-Gill, J. McAdam “The Refugee in International Law” (OUP,
2007) 377.

[184] (n. 56).

[185] Note that the
conduct of a private carrier can give rise to MS liability under International
Law: see e.g. the ECtHR in Hirsi Jamaa and Others v Italy, Application No.27765/09,
judgment of 23 February 2012 (Grand Chamber of the ECtHR) which found that
MSs exercise jurisdiction over persons “whenever the State through its agents operating outside its territory exercises
control and authority over an individual” (emphasis added) [74].

[186] R v Immigration Officer at Prague Airport [2004] UKHL 55.

[187] Ibid. [17]

[188] Sale, Acting Commissioner, Immigration and
Naturalization Service et al v Haitian Centers Council Inc et al 509 US 155
(US SC, Jun. 21, 1993), per Stevens J [181].

[189] R v Immigration Officer at Prague Airport,
Written Case on Behalf of the Intervener [UNHCR] (2004) House of Lords,
[19]-[38]

[190] See chapter 3.2.2
of this essay.

[191] E Lauterpacht, D
Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’
(UNHCR 2001), 82.

[192] Rahmanian Koushkaki v Germany, C-84/12,
judgement of 19 December 2013 (Grand Chamber).

[193] As carrier
sanctions are irrelevant where the passenger has correct documentation.

[194] (n. 174) Article
4(1)-(4).

[195] A permit of one
of the Schengen Area MSs to transit or reside in the desired territory for a
period of time up to the maximum of 90 days every six month period beginning
from the entry date.

[196] (n. 169) Article
1(a)-(e)

[197] (n. 170) Article
32(1)(a)(i)-(vii) and 32(1)(b).

[198] Opinion of
Advocate-General Mengozzi, Rahmanian
Koushkaki v Germany, C-84/12, delivered on 11 April 2013.

[199] (n. 192) [45]

[200] Peers, S. (2014), “Do potential asylum-seekers have the
right to a Schengen visa?” EU Law Analysis. These visas are valid in one MS
only.

[201] (n. 170) Article 25. Emphasis added.

[202] See e.g. EUCFR Article 18.

[203] (n. 200)

[204] (n. 56)

[205] (n. 170) Annex
VII [4]: LTV Visas are limited to 90 days in every six-month period.

[206] U. Jensen, Humanitarian Visas:
Option Or Obligation? Policy Department C: Citizens’ Rights and
Constitutional Affairs (2014) 26-27.
<http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.pdf.>
accessed 22 February 2016.

[207] Treaty of Nice,
Amending the Treaty on European Union, 26 February 2001, OJ C 80/10

[208] Council Regulation (EC) No 2007/2004 of 26 October
2004 establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union,
Art. 1(2).

[209] ibid. Article 2(1)(a). For an in-depth discussion
regarding Frontex’s responsibilities see e.g. J.J. Rijpma, ‘Hybrid agencification in the Area of Freedom, Security and
Justice and its inherent tensions: the case of Frontex’ in The agency phenomenon in the European Union, M. Busuioc, M.
Groenleer, J. Trondal (eds) (Manchester University Press, 2012).

[210] For details into
the origins of Frontex see: Frontex.europa.eu, ‘Frontex | Origin’
<http://frontex.europa.eu/about-frontex/origin/> accessed 12 February
2016.

[211] Recital 4 of its
founding regulation stresses that “the
responsibility for the control and surveillance of external borders lies with
the Member States”.

[212] Frontex defines its primary purpose as the
“coordination of intelligence driven operational cooperation at EU level to
strengthen security at external borders.” More about Frontex, FRONTEX, http://
www.frontex.europa.eu/more_about_frontex/<accessed 11 February 2016>

[213] H. Jorry, ‘Construction
of a European Institutional Model for Managing Operational Cooperation at the
EU’s External Borders: Is the FRONTEX Agency a decisive step forward? CEPS
Challenge Paper, No. 6 (2007) 2.

[214] (n. 208) recital 5.

[215] D. Bigo, A.
Tsoukala ‘Understanding (in)security’ in “Terror,
insecurity and liberty: illiberal practices of liberal regimes after 9/11” (eds.)
D. Bigo, A. Tsoukala (2008, Routledge) 1.

[216] M. Fink, ‘A ‘Blind Spot’ in the Framework of
International Responsibility? Third Party Responsibility for Human Rights
Violations: The Case of Frontex’ Forthcoming in
Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement’
T Gammeltoft-Hansen, J Vedsted-Hansen (eds)(2015)

[217] Mitsilegas has
also labelled this “preventative solidarity”: V. Mitsilegas, ‘Solidarity and
Trust in the Common Asylum System’ Comparative
Migration Studies 2 (2014) 181, 188.

[218] (n. 88)

[219] Tackrah has observed the link between the dehumanisation
of individuals and their “stripping of fundamental rights”: J. R. Thackrah, Dictionary of Terrorism (Routledge,
2003) 91.

[220] JOs are “operational activities carried out by two or more MSs, and possibly in cooperation
with the Agency, with a view to strengthen surveillance and control at a
section of the external borders”: Proposal for a Council Regulation
establishing a European Agency for the Management of Operational Co-operation
at the External Borders COM/2003/0687 final – CNS 2003/0273, 11 November 2003,
recital 8.

[221] European Parliament, Briefing:
Outcome Of The Extraordinary European Council Of 23 April 2015 (2015)
<http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/547557/EPRS_BRI(2015)547557_EN.pdf.>
accessed 15 February 2016.

[222] See e.g. Amnesty
International, Europe’s Sinking Shame: The Failure To Save Refugees And
Migrants At Sea. London: Amnesty International (2015) 15
<https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/EUR03143415-26032_Europe%20Sinking%20Shame_Full%20Version?CMD=VEROBJ&MLKOB=33237320303>
accessed 5 March 2016

[223] European Parliament, ‘Speech By The
President Of The European Parliament, Martin Schulz At The High-Level
Conference On ‘Digital Change In The Creative Economy, Trade And Mobility –
Opportunities And Options To Shape The Future In Europe’’ (2015) 27 February
2016.

[224] PRO ASYL, ‘For A European System Of
Rescue At Sea!’ (2014) <http://www.proasyl.de/en/news/news-english/news/for_a_european_system_of_rescue_at_sea/>
accessed 25 February 2016.

[225] ECRE, ‘Marenostrum To End – New
Frontex Operation Will Not Ensure Rescue Of Migrants In International Waters –
European Council On Refugees And Exiles’ (Ecre.org, 2014)
<http://ecre.org/component/content/article/70-weekly-bulletin-articles/855-operation-mare-nostrum-to-end-frontex-triton-operation-will-not-ensure-rescue-at-sea-of-migrants-in-international-waters.html>
accessed 18 February 2016.

[226] Amnesty International, ‘A “Blueprint For
Action” To End Refugee And Migrant Deaths In The Med’ (2015)
<http://www.amnesty.org.au/news/comments/37039/> accessed 19 January
2016. Note
that whilst Triton’s budget and operational area was
increased after 800 asylum-seekers overturned and died in April 2015, by the
summer, vessels operating under Operation Triton had quietly begun to reduce
their patrolling activities: M. Tazzioli, ‘Border Displacements: Challenging
the Politics of Rescue Between Mare Nostrum and Triton’  (2016) 10 Migration Studies 1, 2.

[227] See Chapter 3.3
of this essay.

[228] L. Gabrielli, ‘Securitisation of Migration and Human
Rights: Frictions at the Southern EU Borders and Beyond’ (2014)
16 Urban
People/Lidé Mesta 311,
313-314.

[229] See e.g. the Eurosur Regulation: European Council,
2013b. Regulation (EU) No 1052/2013 of the European Parliament and of the
Council of 22 October 2013 establishing the European Border Surveillance System
(Eurosur). European Council, 2013c. 24/25 October 2013 conclusions.

[230] Ibid. Eurosur Regulation, Article 1. Emphasis added. For how it has contributed to border securitisation
see: J. Rijpma, M. Vermeulen, ‘EUROSUR: Saving Lives or Building Borders?
(2014) 24 European Security 454.

[231] Frontex has been tasked with its development and
operation: European Scrutiny Committee, Fifty-Seventh
Report – Establishing a European Border Surveillance System (HC 2012-13,
342-xxi) [13]

[232] Frontex would be
renamed a European Border and Coast Guard Agency: European Commission,
‘Communication From The Commission To The European Parliament And The Council:
A European Border And Coast Guard And Effective Management Of Europe’s External
Borders’ (ec.europa.eu, 2015) <https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-673-EN-F1-1.PDF>
accessed 4 February 2016.

[233] S. Peers, ‘The Reform Of Frontex: Saving
Schengen At Refugees’ Expense?’ <http://eulawanalysis.blogspot.com/2015/12/the-reform-of-frontex-saving-schengen.html>
accessed 2 February 2016.

[234] S. Keller et al.,
MIGREUROP, ‘Frontex Agency: Which
Guarantees for Human Rights?’ (2011), 10-11.

[235] Human Rights
Watch, ‘The EU’S Dirty Hands’ (2011)
<https://www.hrw.org/report/2011/09/21/eus-dirty-hands/frontex-involvement-ill-treatment-migrant-detainees-greece>
accessed 6 February 2016.

[236] Council Regulation (EU) 656/2014 establishing rules
for the surveillance of the external sea borders in the context of operational
cooperation coordinated by the European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the
European Union [2014] OJ L189/93).

[237] J. Rijpma, M. Vermeulen, ‘EUROSUR: Saving Lives or
Building Borders? European Security 24
(2014) 454, 468.

[238] For a legal critique of this see: S. Carrera, L. den
Hertog, J. Parkin, ‘The Peculiar of EU Home Affairs Agencies in Migration
Control: Beyond Accountability Versus Autonomy’ (2013) 15 European Journal of Migration and Law, 337.

[239] Council Regulation (EU) 656/2014 establishing rules
for the surveillance of the external sea borders in the context of operational
cooperation coordinated by the European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the European
Union [2014] OJ L189/93, Article
26(a) and (n 230) 22.

[240] (n. 141) 218.

[241] (n. 216)

[242] (n. 141) 217, 254.

[243] See chapter
3.1.3.

[244] Frontex, ‘Frontex Is Not Involved In
Diversion Activities To Libya’ (2009)
<http://frontex.europa.eu/newsroom/news_releases/art70.html> accessed 25
January 2016.

[245] L.M. Langford, Interview with Hugo
Brady, ‘Telephone Interview With Hugo Brady, Senior Research Fellow, Centre For
European Reform’ (2012).

[246] E. Bierdel, M.
Lakitsch, “Flight and Migration: From
Limits, Fears and Future Prospects” (Münster: Lit Verlag, 2014) 45

[247] Frontex, Frontex Fundamental Rights Strategy (2011).
Available at:
http://frontex.europa.eu/assets/Publications/General/Frontex_Fundamental_Rights_Strategy.pdf
accessed 18 January 2016.

[248] Ibid. the
preamble states, for example, that “Frontex
considers that respect and promotion of fundamental rights are unconditional
and integral components of effective integrated border management”.

[249] See e.g. The
Regulation has been praised for its enshrinement of human rights: V. Mitsilegas
“The Criminalisation of Migration in
Europe: Challenges for Human Rights and the Rule of Law” (Springer, 2015)
20-21.

[250] G. Campesi, ‘Frontex, the Euro-Mediterranean Border
and the Paradoxes of Humanitarian Rhetoric’ (2014) 3 South-East Journal of Political Science, 126, 131

[251] V. Mitsilgas,
‘Immigration Control in an Era of Globalisation: Deflecting Foreigners,
Weakening Citizens, Strengthening the State’ (2012) 19 Indiana Journal of Global Legal Studies 3, 44.

[252] (n. 239)
Preamble, Recital 2.

[253] ibid. Article
10(1), 10(1)(c).

[254] See: International Maritime Organisation, Principles
Relating to Administrative Procedures for Disembarking Persons Rescued at Sea,
22 January 2009, FAL 3/Circ194.

[255]
(n. 239) Article 10(1)(c). Unless the measures undertaken in their territorial
sea zone are expressly authorised Note that the UK and Ireland are not bound by this Regulation:
Preamble, recital 25 and 26.

[256] Through which the
port of disembarkation, nor the nationality of the ship, is relevant in an
assessment of responsibility. Rather, it entails a fair distribution of
refugees among MSs.

[257] UNHCR, ‘Expert
Meeting on Refugees and Asylum-Seekers in Distress at Sea – how best to
respond?’ (2012) 24 International Journal
of Refugee Law 485, 493-495.

[258] E. Parisciani,
‘Search and Rescue Operations in the Mediterranean Sea and Access to Asylum:
Another ‘Dublin’? (2015) 29 Immigration,
Asylum and Nationality Law  158, 166.
Parisciani also raises the interesting prospect that this provision may deter
MSs from requesting assistance from Frontex, thereby worsening the humanitarian
situation as SAR will be less effective.

[259] M. den Heijer ‘Frontex and the Shifting Approaches to
Boat Migration in the European Union’ in ‘Externalizing
Migration Management: Europe, North America and the Spread of ‘Remote Control’
Practices’ ed. R. Zaiotti (Routledge, 2016), 54

[260] (n. 239) Article
4. Especially as the Regulation ignores MSs’
obligation to determine whether the state of disembarkation provides sufficient
domestic legal guarantees against arbitrary indirect refoulement. See: B.
Miltner, ‘The Mediterranean Migration: A Clash of titans’ Obligations’ (2015)
12 The Brown Journal of World Affairs 213,
220.

[261] ibid. Article
12(1)(a)-(c). RABITS are Border Guard Teams, the deployment of which Frontex
are responsible: Regulation (EC) No 863/2007 of the European Parliament and of
the Council of 11 July 2007 establishing a mechanism for the creation of Rapid
Border Intervention Teams and amending Council Regulation (EC) No. 2007/2004 as
regards that mechanism and regulating the tasks and powers of guest officers.

[262] A. Baldaccini
‘Extraterritorial border controls in the EU: The role of Frontex in operations
at sea’ “In Extraterritorial immigration control: Legal challenges” eds.
B. Ryan, V. Mitsilegas (Martinus Nijhoff, 2010) 235.

[263] Regulation (EC)
No 863/2007 of the European Parliament and of the Council of 11 July 2007
establishing a mechanism for the creation of Rapid Border Intervention Teams
and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism
and regulating the tasks and powers of guest officers, Article 4(2).

[264] Unless faced with
an exceptional situation substantially affecting the discharge of national
tasks: ibid. Article 4(3).

[265] M. Ventrella,
‘Recognising Effective Legal Protection to People Smuggled at Sea, by reviewing
the EU Legal Framework on Human Trafficking and Solidarity between Member
States’ (2015) 3 Social Inclusion 76,
80.

[266] (n. 259) 54.

[267] A. Fischer-Lescano, T, Löhr, T. Tohidipur
‘Border Controls at Sea: Requirements under International Rights and Refugee
Law’ (2009) 21 International Journal of
Refugee Law 256, 282.

[268] See e.g. UNHCR Agenda for Protection, UN Doc. A/AC.96/965/Add.
1, 26 June 2002, available at: http://www.refworld.org/docid/3d4fd0266.html
> accessed 3 February 2016.

[269] V. Türk
‘Envisioning a Common Asylum System Turk’, Forced
Migration Review (2016) 57, 57.

[270] R. Williams, ‘Beyond Dublin – A Discussion Paper for the
Greens/EFA in the European Parliament’ (2015) 13.

[271] (n. 89) 197.

[272] S. Castles, “Why
Migration Policies Fail” (2004) 27 Ethic
and Racial Studies 205, 205.

[273] See similarly:
(n. 269)

[274] S. Carrera, D. Gros and E. Guild ‘What Priorities for the New
European Agenda on Migration’ (2015), CEPS, available at: https://www.ceps.eu/system/files/MigrationPriorities.pdf <accessed
February 28 2016>

[275] This was also the
criteria used in order to distribute refugees from Germany in 1992, when
Germany’s asylum applications peaked at 460,000: Thielemann E, ‘Between
Interests and Norms: Explaining Burden‐Sharing in the
European Union’ (2003) 16 International
Journal of Refugee Studies 253,
260.

[276] C Roos, G Orsini
‘How to Reconcile the EU Border Paradox? The Concurrence of Refugee Reception
and Deterrence’ (2015) Institute for European Studies Policy Brief, available
at: http://www.ies.be/files/4:2015%20Policy%20Brief.pdf > accessed January
29 2016

[277] UNHCR, ‘Refugees Without An Asylum Country – EXCOM
Conclusions, 16 October 1979’ (1979)
<http://www.unhcr.org/3ae68c960.html>

[278] See chapter 3.2
of this essay.

[279] The notion that a
‘cooperative climate’ breed’s trust: (n. 178).

[280] S. Peers, N.
Rogers EU Immigration and Asylum Law text
and Commentary (M Mijhoff 2006) 300.

[281] See (n 149),
where Merkel describes the Dublin Regulation as ‘obsolete’.

[282] G.S.
Goodwin-Gill, ‘Legal and Practical Issues Raised by the Movement of People
Across the Mediterranean’ (2016) 51 Forced
Migration Review 82, 84.

[283] V. Chetail, P. de
Bruckyer, F. Maiani, ‘Reforming the
Common European Asylum System: The New European Refugee Law’ (Brill –
Nijhoff, 2016) 191.

[284] European Commission
“Asylum, Migration And Integration Fund (AMIF)” (2014)
<http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/index_en.htm>
accessed 26 January 2016.

[285] Under the Emergency Refugee Fund.European
Commission, ‘European Refugee Fund 2008-2013’ (2008), 4.
<http://europa.eu/rapid/press-release_IP-08-1658_en.htm> accessed 29
February 2016.

[286] The United
Kingdom, for example: European Scrutiny Committee, 1^st Report of
Session (HC 2015-16-342-i)

[287] Ingrid Boccardi, Europe & Refugees Towards An EU Asylum
Policy (Kluwer 2002), 172.

[288] A. Raspotnik, M. Jacob and L.
Ventura, Tepsa Brief: The Issue Of Solidarity In The European Union (Tepsa
2012), 4. <http://www.tepsa.eu/download/TEPSA%20Policy%20Paper%20The%20issue%20of%20solidarity%20in%20the%20European%20Union.pdf>
accessed 26 January 2016.

[289] Although other
travel documents, such as a passport, will be necessary also, which is why the
employment of illegal means of entry will not be eradicated completely: A.
Wayne, P.L. Martin, J.F. Hollifield, “Controlling
Immigration: A Global Perspective” (1995) 251.

[290] (n. 12) 136

[291] Distributive
justice entails that states have the same compelling duty
towards non-citizens as they have towards their own citizens: T. K-Amir, T.
Spijkerboer, ‘On the Morality and Legality of Border: Border Policies and
Asylum Seekers’ Harvard Human Rights
Journal 26 (2013) 1, 9. This is also an important notion in light of
comments made, particularly by Hungary, that it did not want to grant asylum to
Muslim refugees: UNHCR, ‘It’s risky to come to Europe, Hungary’s PM tells
migrants’ (Unhcr.org, 2015)
<http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=55e940a95>
accessed 6 March 2016.

[292] (n. 12)

[293] Although the number should drop as carrier sanctions
scrapped and visa restrictions and lifted: V. Türk ‘Envisioning a Common Asylum System Turk’, (2016)
51 Forced Migration Review, 57, 59.

[294] (n. 141) 252.

[295] The victim could aim for full jurisdiction litigation,
as provided for by Article 268 and 340(2) TFEU on non-contractual
responsibility of the EU.

[296] (n. 233).

[297] Duncan Robinson, ‘How The EU Plans
To Overhaul ‘Dublin Regulation’ On Asylum Claims – FT.Com’ (Financial Times,
2016)
<http://www.ft.com/cms/s/2/d08dc262-bed1-11e5-9fdb-87b8d15baec2.html#axzz41PoTqbAu>
accessed 9 February 2016.

[298] Council Decision (EU) 2015/1523 of 14 September 2015
establishing provisional measures in the area of international protection for
the benefit of Italy and of Greece, available at:
http://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32015D1523&qid=1443522997996&from=EN;
and Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional
measures in the area of international protection for the benefit of Italy and
Greece, available at:
http://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32015D1601&qid=1443522997996&from=EN.

[299] A. Dimitriadi, ‘Burden Sharing,
Where Art Thou?’ (Ecfr.eu, 2016)
<http://www.ecfr.eu/article/commentary_burden_sharing_where_art_thou5003>
accessed 11 February 2016.

[300] European Commission, Member States’ Support to Emergency
Relocation Mechanism, 5 January 2016, available at:
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf.

[301] UNHCR, ‘Building On The Lessons
Learned To Make The Relocation Schemes Work More Effectively’ (unhcr.org,
2016) <http://www.unhcr.org/569fad556.pdf> accessed 1 March 2016, 1.

[302] Slovakia v Council C-643/15

[303] Hungary v Council C-647/15

[304] European
Commission, “Commission proposes temporary suspension of Sweden’s obligations
under the EU relocation mechanism” (2015)<
http://europa.eu/rapid/press-release_IP-15-6329_en.htm>

[305] Maurice E,
‘Sweden To Tap Hungary’s EU Relocation Quota’ (Euobserver.com, 2015)
<https://euobserver.com/migration/130961>

[306] Under Protocol 21
and 22 to the TFEU, the United Kingdom, along with Ireland and Denmark “shall”
not partake in the adoption by the Council of the proposed measures pursuant to
Title V TFEU. The United Kingdom and Ireland had the opportunity of
‘opting-in’, however.

[307] S. Peers, ‘The Dublin Regulation: Is
The End Nigh? Where Should Unaccompanied Children Apply For Asylum?’
<http://eulawanalysis.blogspot.co.uk/2016/01/the-dublin-regulation-is-end-nigh-where.html>
accessed 9 February 2016.

[308] F. Heisbourg,
‘The Strategic Implications of the Syrian Refugee Crisis’ 57 (2016) 7, 9.

[309] Syrian Center for
Policy Research, ‘Confronting Fragmentation: Impact Of Syrian Crisis Report’
(2016) 61 <http://SCPR-report-Confronting-fragmentation-2015-EN.pdf>
accessed 7 March 2016.

[310] ibid. 7

[311] (n. 4)

[312] Spiegel Online
International, ‘A Continent Adrift: Juncker Proposes Fixes To EU’s Broken
Asylum Policies’ (Speigel Online, 2015)
<http://www.spiegel.de/international/europe/refugee-crisis-in-europe-exposes-asylum-policy-shortcomings-a-1051481.html>
accessed 7 March 2016.

[313] ibid.