COVID-19, asylum in the EU, and the great expectations of solidarity

by: in Corona Law

Stay at home. Wash your hands frequently with soap and water. These simple indications could help save lives and flatten the coronavirus curve. Unfortunately, things are not so simple for the almost 39,000 asylum-seeking men, women, and children, among them thousands of unaccompanied children, residing on the Greek Aegean islands. 

The Greek Council for Refugees and Oxfam, among others, have provided insights into the unsanitary conditions facing asylum seekers on the islands’ ‘hotspots’, where most are accommodated.  There is one shower for every 500 people, and one toilet for every 160. To collect their meals, they must queue in line for hours, with hundreds of other people around them. The situation is no better on the mainland. Refugee camps and accommodation facilities in Ritsona, Malakasa and Kranidi were placed into quarantine after hundreds of asylum seekers tested positive for COVID-19. 

The global coronavirus pandemic has brought asylum reception conditions in Greece back into the spotlight. The virus heightens the danger that living in squalid, overcrowded camps entails for the well-being and health of thousands of people seeking asylum. How is it possible that asylum seekers find themselves in such sub-standard conditions in Europe? What is being done, and what more should be done, to ensure their health and dignity? 

Implementing the Common European Asylum System 
The EU has been developing its asylum policy since 1999 with a view to creating ‘a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union’. The initial implementation design of the EU’s asylum policy foresaw that Member States would realise the Common European Asylum System (CEAS) largely through deploying their own resources. The CEAS was largely conceptualized as a ‘common system of national variants’. What is ‘common’ is the legislation adopted at the EU level; the implementation of that law is predominantly a matter of national concern. EU legislation imposes specific duties on Member States with a view to establishing functioning and well-resourced national asylum systems. Moreover, according to EU law, Member States must provide asylum applicants with an adequate standard of living, which guarantees their subsistence and protects their physical and mental health. 

There is also dedicated EU legislation about determining which Member State is responsible for examining an asylum claim. Apart from limited cases related to unaccompanied minors and safeguarding family unity, the ‘responsible’ State is usually the one that the asylum seeker first entered. In practice, for those who arrived irregularly, this usually means Greece or Italy. Regular entry channels to the EU for protection purposes, such as resettlement, are very limited and most asylum seekers arrive irregularly. This system does not result in fairly sharing responsibility between the 27 Member States, given the geographical bias when it comes to determining responsibility. 

Once responsibility is assigned, it is for the ‘responsible’ Member State alone to provide for the asylum seeker; any further EU measures, such as EU funding, are limited. Nevertheless, Member States have different levels of economic development and different conceptualisations of welfare. This necessarily affects their protection capacity in practice. The CEAS does not currently incorporate people-sharing measures, namely, to redistribute asylum seekers, refugees or beneficiaries of subsidiary protection to other Member States. Once a person is found to be in need of international protection (as a refugee or beneficiary of subsidiary protection), it is up to the Member State that granted status to issue the beneficiary with a residence permit on protection grounds. Beneficiaries do not enjoy the right of free movement to other Member States. The design of the system thus pits Member States against each other and creates disincentives for compliance. 

The case of Greece is an example in point, but is far from unique. As early as 2011, the European Court of Human Rights identified structural deficiencies in the country’s asylum procedures and reception conditions. These were due to a mixture of Greece’s inability to protect (the country was hard hit by the financial crisis) and its unwillingness to protect and fully implement the CEAS norms. Greece has been slowly improving its national asylum system, for example through the establishment of a dedicated national administrative authority, the Greek Asylum Service, tasked with the examination of asylum claims at first instance. Supported by EU funding, it has implemented programs to provide urban accommodation and cash assistance to growing numbers of asylum seekers in Greece. Nevertheless, deficiencies in asylum processing, and most notably in reception conditions, persist throughout the country. 

COVID-19 has brought into sharp relief the suffering for asylum seekers and persisting violations of their human rights. This has led the European Commission, Members of the European Parliament, numerous civil society organisations, and the EU’s Fundamental Rights Agency, among others, to call for the evacuation of refugee camps in Greece and for the activation of intra-EU solidarity measures. They have been recently joined by the European Court of Human Rights, which ordered interim measures in the case of E.I. and others v. Greece, requiring that several people be moved immediately out of Moria, a ‘hotspot’ functioning in Lesbos, to obtain medical treatment and to ensure that they were not exposed to a risk of inhuman or degrading treatment. 

The imperative of intra-EU solidarity: great expectations? 
EU law contains a legally binding principle of solidarity and fair sharing of responsibility in Article 80 TFEU. This principle profoundly impacts the goal of the CEAS: it dictates a certain ‘quality’ in the cooperation between the different actors, and arguably unsettles the CEAS’s implementation modes, for example the way responsibility is to be allocated. The provision’s wording not only permits, but in fact requires, the adoption of concrete measures whenever necessary, such as financial support or people-sharing arrangements. Special importance should be attached to its reference to ‘solidarity and fair sharing of responsibility’, which ratchets up the duty – ‘solidarity plus’. Notwithstanding the importance of inter-state solidarity and fair sharing, however, the CEAS currently lacks a genuine system for allocating responsibility among the Member States based on objective indicators. In addition, no structural change has been made to the EU’s responsibility allocation system, only temporary exceptions. 

To date, solidarity initiatives have been emergency-driven. A temporary shift to the normal workings of EU’s responsibility allocation system took place in 2015–17. This was meant to respond to the increased numbers of asylum seekers with 1,82 million irregular border crossing detected in 2015, mainly as a result of armed conflict in Syria. Emergency relocation, meaning intra-EU transfer of asylum seekers between Member States, was established to benefit Italy and Greece. This initiative was undercut by several factors, including its own legislative and administrative set-up. In addition, certain Member States simply refused to relocate asylum applicants. The Court of Justice of the European Union recently found this refusal to violate EU law. Nevertheless, that time-limited scheme included binding obligations for Member States, in the form of relocation quotas, and led to the relocation of around 35,000 asylum seekers from Greece and Italy to other Member States. The EU’s asylum agency, EASO, and its  external border control agency, FRONTEX, also act as indirect vessels of solidarity as they draw from the EU budget and their functioning includes operational deployments in Member State territory. For example, EASO has been involved in asylum processing in Greece. Nevertheless, current deployments by EU agencies are not at a sufficient scale or for a long enough duration to effectively counter structural deficiencies in national asylum systems.  

The lack of effective solidarity and fair-sharing of responsibility does not absolve Member States from their responsibilities. It does not constitute a valid excuse for violating asylum seekers’ human rights or dignity. Greece is responsible for ensuring the human dignity, health and well-being of asylum seekers present in its territory. In this vein, the Greek government has announced the gradual transfer of 2,380 asylum seekers and their families from island camps to facilities on the mainland. The European Commission has welcomed these efforts. In my view, they constitute a necessary, but insufficient, measure. 

Notwithstanding Greece’s obligations, the EU also needs to do more in line with the EU principle of solidarity. Several EU Member States and Switzerland have announced their willingness to relocate 1,600 unaccompanied children from island ‘hotspots’. The first such transfers have taken place, with 12 children relocated to Luxembourg and 47 to Germany. Unlike the previous relocation mechanism that was operational from 2015 to 2017, this is a smaller-scale operation based on voluntary pledges. Other measures include in-kind assistance through the EU Civil Protection Mechanism and additional EU funding of a total of €700 million for the construction of five multi-purpose reception and identification centres on the Greek islands. 

These initiatives are welcome. However, they follow the previous emergency-driven trajectory of intra-EU solidarity, rather than structurally embedding solidarity and fair-sharing of protection responsibilities into the EU’s asylum policy. Until there is a permanent redesign of the CEAS, it will arguably be impossible to realise the legally binding principle of solidarity and to ensure human health and dignity, in the time of coronavirus and beyond. 

  Originally published on More blogs on Law Blogs Maastricht
  • E. Tsourdi

    Evangelia (Lilian) Tsourdi is tenured Associate Professor and Jean Monnet Chair in EU Migration Law and Governance at the Law Faculty of Maastricht University and the Maastricht Centre for European Law. Her research interests lie at the intersection of EU Law, Public International Law, and public policy/administration with a focus on human rights, asylum, migration, and governance theories.

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