In a new post for The Conversation, Dr Ruvi Zeigler says the fate of the recently stranded boat carrying African migrants highlights the shaky state of the EU’s asylum system.

The fate of the Aquarius, a Doctors without Borders rescue ship left stranded for hours in the Mediterranean carrying 629 African migrants, is a stark reminder of the EU’s ongoing stalemate on asylum policy.

The new Italian interior minister, Matteo Salvini, ordered ports to refuse docking to the ship, prompting a rhetorical revolt by several Italian mayors. Malta also refused docking, claiming that the rescue occurred in the Italian search and rescue zone. As the ship’s supplies were running out, Spain’s new prime minister, Pedro Sanchez, stepped up to the plate and authorised docking in Valencia.

The ducking of responsibility highlights the perilous state of the EU’s Common European Asylum System, set out in article 78 of the Treaty on the Functioning of the European Union, and comes just weeks before the European Council convenes in Brussels, with “migration” high on the agenda. A meeting in early June of EU interior ministers failed to reach agreement on necessary reforms to the rules which govern sharing of responsibility for those who claim asylum when reaching EU shores.

The EU’s asylum system faces three fundamental, and interrelated, challenges. First, the equitable allocation of responsibility for assessing asylum claims and providing protection under EU law. Second, the harmonisation and standardisation of how these decisions are made. And third, freedom of movement of “beneficiaries of international protection” namely, those entitled to refugee or subsidiary protection status.

The default position, subject to humanitarian exceptions, under what has become known as the “Dublin III” regulation – is that the first EU member state whose border an asylum seeker has “irregularly” crossed is responsible for processing their asylum claim and providing them with reception conditions. They are then responsible to host those who are recognised as “beneficiaries of international protection”. Notably, under Dublin III, the obligation rests on the member state, not the asylum seekers. Some asylum seekers may wish instead to join relatives or friends in another country, or to reach a country with a welcoming – and functioning – asylum system.

Dublin III has disproportionately affected “frontier” member states, particularly Greece and Italy. But it also creates a perverse incentive for a member state not to recognise asylum seekers, given that after being recognised, they are then unable to move freely between member states. For this reason, I have previously advocated for the creation of an “EU protection space” where beneficiaries of international protection can exercise mobility rights.

Emergency relocation, glacial pace

Following the “emergency situation” in 2015, which to borrow the EU’s treaty language was “characterised by a sudden inflow” of “third country nationals”, in September 2015, the European Council adopted two decisions – 2015/1523 and 2015/1601 – mandating relocation of asylum seekers from Greece and Italy to other member states based on quotas. Hungary, which was originally supposed to benefit from such relocation as well, refused to co-operate with the scheme.

Relocation – which is different to resettlement – was intended for asylum seekers already in the EU. The way the scheme was designed meant that it was mainly Syrians, Eritreans, or Somalis who were eligible for relocation. The quota of people each member state was allocated was calculated using a formula. This was weighted 40% on its population, 40% on its GDP, 10% on the number of asylum seekers it already hosted, and 10% on its unemployment level.

Article 80 of the EU’s Lisbon Treaty stipulates that EU policy shall be “governed by the principle of solidarity and fair sharing of responsibility”. Nevertheless, the emergency relocation scheme faced resistance from the Visegrad group of Poland, Hungary, Czech Republic and Slovakia. This forced the commission to initiate infringement proceedingsagainst the Czech Republic, Hungary, and Poland. Its March 2018 report noted that, two and half years since the scheme began, 34,000 people have been relocated. It also called on all member states to “consider continuing relocations on a voluntary basis, beyond the emergency relocation schemes” which have now concluded.

Where next

In its May 2018 progress report on the implementation of the European Agenda on Migration, the European Commission noted that, after a peak of over 1.2m applications per year in 2015 and 2016, the 28 EU member states saw less than 0.7m applications in 2017.

There are still proposals on the table for how to reform Dublin III. In a November 2017 report, the European Parliament advocated a radical overhaul of the Dublin rules, based on automatic asylum seeker allocation criteria. This would be based on the GDP of a member state, as well as humanitarian grounds (family, cultural or social ties), language skills, and professional skills.

However, the ambition of the EU’s institutions to reform the rules appears a far cry from that of many of its members. No agreement on a way forward was reached at the meeting in early June where EU interior ministers discussed a compromise proposal to tweak some of the existing exceptions to the first EU country of entry rule. The Bulgarian minister of interior described “a frank discussion on fundamental aspects of the asylum reform”. But with Cyrpus, Greece, Italy, Malta and Spain critical of the limited nature of the proposed reforms, and the Visegrad group states in opposition to mandatory relocation, the EU remains in stalemate over a way forward.

The Aquarius confrontation suggests that the best that can be expected from the June 28-29 European Council summit is a fudge. In July, Austria’s chancellor, Sebastian Kurz, takes the reins of the rotating presidency of the EU Council. Given his rhetoric, a European “right to asylum” – set out in Article 18 of the EU Charter of Fundamental Rights – seems to be sailing away.

This post was originally published on The Conversation, 13 June 2018. Dr Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law in the University of Reading’s School of Law, where he is Director of the Global LLM (postgraduate) programmes in Human Rights, International Law, and Advanced Legal Studies.