he Area of Freedom, curity, and Justice ek M. U?arer apter Contents Introduction 324 Preludes to cooperation 324 The Schengen experiment 325 Maastricht and the'third pillar' 326 Absorbing the third pillar: from Amsterdam to Lisbon 327 Policy output: baby steps to bold agendas 330 EU migration and asylum policy before the migration crisis 333 The migration crisis and the EU response 334 Towards a Security Union? 339 Conclusion 341 Reader's Guide This chapter looks at one of the most recent European policies, justice and Home Affairs (JHA), and its subsequent transformation into the Area of Freedom, Security, and Justice (AFSj). The AFSJ comprises policy areas such as immigration and asylum, and police and judicial cooperation, some elements of which were found prior to the Lisbon Treaty in the EU's third pillar. The chapter focuses first on the early years of cooperation in this policy area and provides an introduction to the Schengen Agreement. It then reviews the procedural steps taken first by the Maastricht Treaty (1993), then at Amsterdam (1999). and subsequent institutional developments culminating in the Lisbon Treaty. The second half of the chapter concentrates on policy output, again looking at steps taken with Maastricht, Amsterdam, and Lisbon, but also in the landmark Tampere European Council meeting, the Hague Programme, and most recently the Stockholm Programme. Two sections of the chapter then review in more detail EU migration and asylum policy before and since the EU migration crisis which began in 2013. The chapter argues that, although some progress has already been made towards Eu-topeanizing AFSJ policy, this field continues to be laced with intergovernmentalism. As demonstrated in this chapter, numerous challenges remain to be resolved within this broad policy domain. 324 Ennek M. Ugarer The Area of Freedom, Security, and Justice 325 Introduction Cooperation in the Area of Freedom, Security, and Justice (AFSJ) has undergone a remarkable ascent from humble beginnings to a vibrant EU policy. One of the newest additions to the EU mandate, it seeks to engage the European Union in the fields of immigration and asylum policy, and police and judicial cooperation. Because of the sensitive nature of the issues involved, cooperation has been slow and difficult. However, it has resulted in a body of policies that apply across the EU's internal and external borders, and which have locked previously inward-looking national authorities into a multilateral process. This has involved significant political compromise, which led to the introduction of a complicated mix of Communitarized and intergovernmental institutional procedures peculiar to this field. The EU is now developing a complex immigration and asylum regime, albeit one severely challenged by the recent migration crisis, and is also making progress on police and judicial cooperation. Particularly after the conclusion of the Amsterdam Treaty, the EU's capacity to reach collectively binding decisions in this field has improved considerably, creating momentum towards further cooperation and increasing concerns about the creation of a 'Fortress Europe' into which access is increasingly restricted. However, many challenges and tensions remain to be resolved. Preludes to cooperation If, in the late 1960s, government ministers responsible for home affairs and justice were told that they would soon need to consult with fellow European tninj while formulating policies on immigration, as »1 judicial, and police matters, they would no doubt h found this a very unlikely and undesirable nro ^ Yet, during the 1980s and 1990s, issues fallIng their mandate have increasingly become of collect' EU concern, provoking efforts to deal with them1* the European, rather than exclusively at the nation^ level. Beginning in the mid-1970s and accelerat the 1980s, these clusters were increasingly rated into the collective political agenda, lead lngin mcorpo- the creation of new, overlapping forums discussi these issues (see Box 22.1). There were two broad sets of catalysts that drove this development. The first was the consequence of increased cross-border movements into and across Eu rope. After the Second World War, Western Europe became an area of immigration. Cross-border movements increased, straining border patrols and causing delays at points of entry. With this came growing concerns about transnational crime because of weak border controls and a lack of effective communication among European national law enforcement agencies. The second catalyst was the revitalization of the European integration agenda after the signing of the Single European Act (SEA) in 1986 (see Chapter 20). The removal of internal EU border controls was written into the 1957 Treaty nf Rome, even though this had not been fully realized by the early 1980s. With this goal back on the agenda, attention turned to the need to create external Community borders, and to develop common and coherent rules on access. Early efforts targeted three groups: the citizens of the European Community, and then Union, whose freedom of BOX 22.1 CATALYSTS FOR EARLY COOPERATION IN JUSTICE AND HOME AFFAIRS (JHA) MATTERS Linked to immigration Linked to the European integration project Increase in cross-pottfer movements between Western European countries Increase in labour and family unification migration into Western European countries ncrease in applications for as/lum Concerns about cross-border organized crime Undesirable impacts of delays at borders on economic activities Desire to complete the creation of the Single Market by gradually removing controls at the Unions internal borders Recognition of the necessity to develop common measures to apply to the external borders before doing away wrth controls at the internal borders BIO« errient w ithin the EC / EU was to be secured; long- term citizens gU residents of third countries—that is, non-EU idence who had relocated to the EU and who held res-and work permits; and third-country nation-^ (TCNs), including labour migrants and refugees eking to enter the collective territory of the EC/EU Early efforts to cooperate were launched not by the EU but by the Council of Europe (CoE), the membership of which comprised both East and West European ountrie5- Judicial matters were raised often at CoE meetings. While the CoE's work was significant, the drawbacks of its processes, including slow and 'lowest common denominator' policy output, were also clear. Cognizant of the shortcomings of the CoE, member states set up the 'Trevi Group' in 1975 as an informal assembly to deal with cross-border terrorism through closer cooperation among EC law enforcement authorities. Trevi was a loose network rather than an institution, and the meetings concluded in non-binding consultations on organized international crime, induding drug and arms trafficking. Subsequently, several other groups were established, including the Judicial Cooperation Group, the Customs Mutual Assistance Group, and the Ad Hoc Groups on Immigration and Organized Crime. These groups spanned the four JHA policy clusters that were gradually becom-ingEuropeanized: immigration policy; asylum policy; police cooperation; and judicial cooperation. I KEY POINTS L» Cooperation in Justice and Home Affairs was noi I foreseen in the Treaty of Rome. I • The Council of Europe (a non-EC institution) was the mam forum for the discussion of |HA issues, but ft worked slowly and its output was meagre. ► The Trevi Group was created m 1975 as a loose network wrthin which terrorism might be discussed at the European level t" The Trevi Group led to the setting up of similar groups m related areas. The Schengen experiment Perhaps the most ambitious project of these early years was Schengen. In 1985, a number of EC member states decided to do away with border controls. This Was formalized in the 1985 Schengen Agreement and kterthe 1990 Schengen Implementation Convention. Belgium, the Netherlands, and Luxembourg (the 'Benelux' countries), along with Germany, France, and Italy, created a new system that would connect their police forces and customs authorities. They also created the Schengen Information System (SIS), an innovative, shared database that stored important information (such as criminal records and asylum applications), and which was accessible by national law enforcement authorities. Schengen's primary objective was to develop policies for the Community's external borders that would eventually remove the EC's internal borders. This was an ambitious goal of which the UK, Ireland, and Denmark remained sceptical. Despite Schengen involving only some member states, it became a model for the EC (and later the Union) as a whole. Within the Schengen framework, significant progress was made in each of the four emergent areas of cooperation. With respect to asylum, Schengen instituted a new system for assigning responsibility to review asylum claims to one state to stop multiple asylum applications and reduce the administrative costs of processing duplicate asylum claims. Schengen also provided the groundwork for an EU-wide visa policy through a common list of countries the citizens of which would need an entry visa, also introducing uniform Schengen visas. There was more modest output in judicial cooperation, with the easing of extradition procedures between member states. Finally, Schengen involved cooperation on law enforcement. However, since most of this work fell outside the EC decisionmaking structure, it was conducted away from the scrutiny of the general public and their elected representatives (see Box 22.2). KEY POINTS ■ The 1985 Schengen Agreement was a commitment by a subset of EC member states to remove controls at their internal bordeis • Steps were taken by the Schengen members to agree on common rules on their external borders, for example, on visa policy. • For those countries involved, Schengen allowed national civil servants in these fields to become accustomed to European-level cooperation. • Significant progress was made in each of the four emergent areas of cooperation within Schengen. 326 EmekM. Ugarer ^ BOX 22.2 WHAT IS SCHENGEN. Named after the small Luxembourg border town where a subset of the member states of the then EC resolved to lift border controls, the Schengen s>-stem is a path-breaking initiative to provide for ease of travel between member states. In 1985, France. Germanv. and the Benelux countries signed the first Schengen Agreement and were later joined by nine other EU members, bringing the total number of participating states to 15. The Schengen accords sought to remove controls on persons, including third-country nationals (TCNs), at their internal Dorders while allowing member sLal.es to reintroduce them only under limited circumstances. Member states agreed to develop common entry policies for their collective territory, to issue common entry visas, to designate a responsible state for reviewing asylum claims, and to combat transnational crime jointly. They also created a novel database—the Schengen Information SvsTeiT, - SIS] -;o exchange intonation betwe J the member stales on certain categories of individual and"! property Because the or iginnl SIS /vas designed to interlink j| most 18 countries a new version .SIS II. was launched ntarj^l necessary by the enlarged EU. In 20! 8 the 26 Schengen countries are: Austna; Belgium, Czech Republic; Denmark; M Estonia. Finland; France; Germany; Gr-ecce; Hungary; Icelan^l Italy; Latvia: Liechtenstein; Lithuania. Luxembourg: Malta1 the Netherlands: Nor way Poland; Portugal, S.ovakia; Slovenia; Snai Sweden, anc Switzerland Foui o' these counir .es (Iceland Liechtenstein. Norway, and Swii7prlanch ^ p ror members of 1 the EU Two EU countries 'The UK 3uo Ireland) are not part of the Schengen system, although they have recently chosen toM opt in on an issue-bv-issue basis Bulgaria. Croatia. Cyprus, and ■ Romania are obligated tc: pn but implementation is still pendiriP. 1 Maastricht and the 'third pillar' Efforts intensified in the early 1990s to shift decisionmaking towards the European institutions. With the implementation of the Treaty on European Union (TEU) in 1993, Justice and Home Affairs (JHA) was incorporated into the European Union, forming its third pillar. The TEU identified the following areas of 'common interest': asylum policy rules applicable to the crossing of the Union's external borders; immigration policy and the handling of third-country nationals (TCNs); combating drug addiction and drug trafficking; tackling international fraud; judicial cooperation in civil and criminal matters; customs cooperation; police cooperation to combat and prevent terrorism; and police cooperation in tackling international organized crime. The Treaty also created a new institutional home for the groups that had been set up in earlier decades and created a decision-making framework. However, this new JHA pillar was the product of an awkward inter-state compromise. In the run-up to Maastricht, while most member states supported bringingJHA matters into the Union, they remained divided over how this should be done. Some argued that JHA should be handled within the first pillar, as a supranational policy; others preferred to keep this sensitive field as a largely intergovernmental dialogue. Title VI TEU reflected the institutional consequences of this political compromise. With the third pillar, the Treaty established an intergovernmental negotiating sphere that marginalized the Community institutions, particularly the European Commission within the JHA decision-making process. This third pillar set-up diverged significantly from standard decision-making in the EC. The key decision-taking body became the JHA Council. The European Commission's usual function as the initiator of European legislation (see Chapter 10) was diminished by its shared right of initiative in JHA and the role of the European Parliament (EP) did not extend beyond consultation, a situation that led to accusations that JHA exemplified the Union's democratic deficit (Geddes, 2008; Ucarer, 2014; Bache et al., 2014; see also Chapter 9). The Court of Justice of the EU (CJEU), the body that might have enhanced the accountability and judicial oversight of policy, was excluded from jurisdiction in JHA matters (see Chapter 13). Although bringingJHA into the EU was an important step, critics of the third pillar abounded. Two sets of interrelated criticisms were advanced. Critics lamented the lack of policy progress in the post-Maastricht period. The problem was that the post-Maastricht institutional arrangements were ill equipped to handle the projected, or indeed the existing, workload falling under JHA. The decision-making framework was cumbersome, with often non-binding policy instruments necessitating long-drawn-out (and potentially inconclusive) negotiations. AH decisions in the third pillar had to be reached unanimously and led to deadlock. When unanimity was achieved, the result was often a lowcst-common-denominator compromise that pleased few. Negotiations continued to ^tfetive and the EP remained marginalized, par-^rj rly problematic at a time when the Union was ^ i ard to improve its image vis-ä-vis its citizens. tryi°e tEY POINTS Bine MaasT''Cht Treat, whch came into efteel in IV93 ^Eggterj a 'third oilla1' for Justice and Home Affairs I The institutional framework put in place for ]H A was I irttergove' nmental and cumbersome. Key mstiti more suc-i is the EP and the Court were marginalized in |HA decision-making pTheJHA framework was sub|ect to much criticism in the Kid-1990s Absorbing the third pillar: from Amsterdam to Lisbon In the run-up to the 1999 Amsterdam Treaty, proposals for reforming Justice and Home Affairs (JHA) included the following: enhanced roles for the Commission, EP, and Court of Justice; the elimination of the unanimity rule; and the incorporation of the Schengen system into the European Union. As with Maastricht, there was a fierce political debate over these issues. The challenge was to make the Union 'more relevant to its citizens and more responsive to their concerns', by creating an 'area of freedom, security and justice' (AFSJ) (Council of the European Union, 1996). Within such an area, barriers to the free movement of people across borders would be minimized without jeopardizing the safety, security, and human rights of EU citizens. The Amsterdam compromise led to three important changes. First, parts of the Maastricht third pillar were transferred to the first pillar, or 'Communi-tarized'. Second, the institutional frameworkfor issues that remained within the third pillar was streamlined. And third, the Schengen framework was incorporated into the Union's acquis communautaire. New first-pillar issues under Amsterdam The Communitarization of parts of the erstwhile third pillar was the most significant development at Am ster-dam with respect to JHA matters. These provisions The Area of Freedom, Security, and Justice 327 called for the EU Council to adopt policies to ensure the free movement of persons within the Union, while concurrently implementing security measures with respect to immigration, asylum, and external border controls. The Treaty also specified new decision-making rules. A transition period of five years was foreseen, during which unanimity was required in the JHA Council following consultations with the EP. After five years, however, the Commission would gain an exclusive right of initiative, member states losing their right to launch policy instruments. While the EP's access to the decision-making procedure would still be limited to consultation in most cases, an automatic shift to the co-decision procedure (now the ordinary legislative procedure, or OLP), which would give the EP much more of a say, was foreseen in the area of uniform visa rules and the procedures for issuing visas. The Court of Justice would receive a mandate for the first time, allowing it to undertake preliminary rulings in policy areas falling within the first pillar in response to requests by national courts (see Chapter 13). Despite these improvements, however, the new Amsterdam architecture turned out to be a formidable maze created through masterful 'legal engineering' for political ends and opaque even for seasoned experts. The left-over third pillar: cooperation in criminal matters The Amsterdam reforms left criminal matters in the third pillar. The amended Title VI included combating crime, terrorism, trafficking in persons and offences against children, illicit drugs and arms trafficking, corruption, and fraud. The Treaty envisaged closer cooperation between police forces, customs, and judicial authorities, and with Europol, the European Police Office (see 'Post-Maastricht developments in policy'), seeking an approximation of the criminal justice systems of the member states as necessary. While the new Title VI essentially retained the intergovernmental framework created atMaastricht, the Commission obtained a shared right of initiative for the first time—an improvement over its pre-Amstcr-dam position. The EP gained the right to be consulted, but that was all. The Treaty constrained the Court in a similar fashion in that it recognized its jurisdiction to issue preliminary rulings (see Chapter 13) on the instruments adopted under Title VI, but importantly made this dependent on the assent of the member states. While the Commission, Parliament, and Court 328 hmek M. Ugarer were to continue to struggle to play an active role in the third pillar, the Council retained its dominant decision-making function and unanimity remained the decision rule used in third-pillar legislation. Absorbing Schengen After much debate, Schengen was incorporated into the liU by means of a protocol appended to the Amsterdam Treaty. The Protocol provided for the closer cooperation of the Schengen 13 (that is, the EU15 minus Ireland and the UK) within the EU framework. With this development, cooperation on JHA matters became even more complicated, involving various overlapping groupings. There were those EU members that agreed to be bound by the Amsterdam changes (the EU12); Denmark chose to opt out altogether, and the UK and Ireland would remain outside unless they chose to opt in. Moreover, there were actually 15 signatories to the Schengen agreement (the Schengen 15), of which 13 were EU members and two were not (Iceland and Norway). The two members of the EU that remained outside the Schengen system, the UK and Ireland, decided to take part in some elements of Schengen, including police and judicial cooperation. Of the 12 countries that subsequently joined the EU in 2004 and 2007, nine joined the Schengen area fully in 2007. Non-EU Switzerland partially joined Schengen in December 2008. This makes for quite a complex system: of the current 26 members, 22 are EU members and four (Iceland, Liechtenstein, Norway, and Switzerland) are not. Four current EU members (Bulgaria, Croatia, Cyprus, and Romania) are in line to join. Two current EU members (the UK and Ireland) remain outside the Schengen area and three non-EU microstates (Monaco, San Marino, and the Holy See) are de facto Schengen members because they maintain open borders with their neighbours. One could argue that the incorporation of Schengen into the acquis communautairc did not result in desired simplification, but rather maintained, if not amplified, the convoluted system of the early 1990s. Not surprisingly, some now regard this particular aspect of the AFSJ as the ultimate example of a multi-speed, or 'a la carte', Europe. The Treaty of Nice made few substantial changes to these institutional developments, although it did extend the shared right of initiative for the Commission in the otherwise intergovernmental (residual) third pillar. 'Normalizing' AFSJ: the Constitution»! Treaty and the Lisbon Treaty The Convention on the Future of Euron«. Fe and th» 2003-04 intergovernmental conference (ICQ nating in the October 2004 signing of the Consti tional Treaty (CT), marked the next, if incomnl stage in JHA reform. The CT provided for the ' malization' of JHA by abolishing the pillar struct! greater use of qualified majority voting (QMy) ^ cept forjudicial andpolice cooperationin criminalmat ters (JPCCM). It retained the shared right of initiative for the Commission and the member states injudicial cooperation in criminal matters, but foresaw propos als coming from coalitions composed of at least 25»/ of the membership of the Union. These were all ef forts to streamline the decision-making process while preserving a diminished capacity for member states to block decisions. The CT further provided for a role for national parliaments to monitor the implementation of JHA policies and for a judicial review of compliance by the ECJ. Finally, the Constitution retained the British and Irish opt-ins, and the Danish opt-out. However, the CT was rejected in referendums in France and the Netherlands. The AFSJ provisions were later given a new life in the Lisbon Treaty, signed on 13 December 2007. The Lisbon Treaty contains all of the major innovations pertaining to AFS1 that were present in the CT, and underscores its salience by placing it ahead of economic and monetary union (EMU) and the Common Foreign and Security Policy (CFSP) in the Union's fundamental objectives. The Lisbon Treaty also incorporates the Prüm Convention (sometimes referred to as 'Schengen III') into the acquis communmitaire. It foresees jurisdiction for the Court of Justice of the EU (CJEU) to enforce all AFSJ decisions apart from provisions adopted under the post-Amsterdam third pillar. As of December 1, 2014, the normal powers of the Commission and the CJEU now extend to all areas of AFSJ. The EP will operates with OLP (formerly co-decision) authority in almost all cases. However, the Lisbon Treaty's transformative provisions were also brought about by compromises. Opt-outs and opt-ins remain for Denmark, the UK and Ireland (see Table 22.1), now complicated further by the looming Brexit. These concessions are criticized as moving further towards a multi-speed Europe. Nonetheless, the Lisbon Treaty represents the most significant reform of AFSJ to rectify vexing institutional problems that were created by Maastricht. Mi Q IA — \ § 1 1 8 1 F R ESS I c- a ft I E L g > = .5° O a. E c 111 E J £ V C ° k F 0 E $ O The Area of Freedom, Security, ana Justice 329 e V D O Ä I 8 S A t o a 1 |o E Q o £ "5 1» > ? i T S o a o 8 t o ° e § ii e e O c Q 9 U o O £ if § $ ° S B s & 2 -I * C id g QJ co U C § 1 be extended into 2019. These difficulties further highlight the strains on the rollective management of migration flows. countries to adopt close variations of the BU's emergent border management regime were particularly pronounced in Central and Eastern Europe (CEE), the Maghreb, and the Mediterranean basin, because of the proximity of these areas to the EU North African, Mediterranean, and African, Caribbean, and Pacific (ACP) countries were also steered towards adopting policies to ease migratory pressures into the Union. To these ends, in addition to the readmission agreements negotiated by its member states, by 2015, the EU itself implemented 17 readmission agreements with third countries ranging from Albania, Cape Verde, Russia, to Turkey and Ukraine. Frontex also plays a crucial role by engaging countries that are on the EU's land borders in the southeast and the Western Balkans, and on its maritime borders in the Mediterranean. Such deployments, with operational names such as 'Hermes', 'Triton', and 'Poseidon', frequently occur in the Mediterranean, particularly near Malta, Italy, and Greece with their exposure to North Africa. Securing and maintaining these processes have been difficult, frequently intertwining the domestic politics of the affected countries with those of the EU (see Box 22.3). I^Y POINTS I S'nce Maast-irhL significant policy progress has been | de |M -he field* of immigration, -isylum. police, and f judicial cooperation, even though policy output has fallen HLrt of initial expectations I policy-making focused on developing common rules for ■ ^^^i Withm and entry into tN I li ion, harmonizing pol :ie< I offenn2 praterHon to asylum seekers and refugees. Bit also led to the creation of better information exchange I and cooperation between law enforcement officials. and the development of mutual recognition of |udiaal I decisions within the EU. L The Hague and Stockholm Programmes gave policy-L naking a push by calling for the implementation of a I common a^vlum system, and stressed partnership with B countries of origin and/or transit. EU migration and asylum policy before the migration crisis The Common European Asylum System (CEAS) was the product of the aforementioned 1999 Tampere summit. It is the EU's response to its international obligations to provide humanitarian protection to refugees and a functioning asylum system across the EU (see Amsterdam and beyond' earlier). CEAS seeks to address three challenges. First, it addresses the practice which leads asylum seekers whose application for asylum is denied in one member state to apply for asylum in another EU country. This is often termed 'forum shopping'. Second, it addresses the problem of differential asylum outcomes in different member □ BOX 22.4 THE DUBLIN CONVENTION The Dublin Convention was first agreed in January 1990. Now in Its third incarnation, the so-called Dublin III Convention entered into force in |uly 201 3. with the aim of establishing a common framework fo< determining which member state decides an asylum seeker's application. This is intended to ensure :hat only one member state processes each asylum application The criteria for establishing responsibility runs, in hierarchical order, from family considerations, to recent possession of a visa or residence permit m a member state, to whether the applicant has entered the EU irregularly or regularly. The arrival of numerous migrants and asylum seekers states, leading asylum seekers to gravitate towards those countries where their application is more likely to be approved. Third, it addresses the variety of social benefits for asylum seekers that exist across EU member states, which also draws refugees to gravitate towards one particular jurisdiction. The agreement taken at Tampere established that CEAS would be implemented in two phases: in the first phase, the adoption of common minimum standards in the short term should lead to a common procedure and a uniform status for those granted asylum, which would be valid throughout the Union in the. longer term. Thus this 'first phase' of the CEAS, which lasted from 1999 to 2004, established the criteria and mechanisms for determining the member state responsible for examining asylum applications. This replaced the earlier regime governed by the 1990 Dublin Convention, and which included the establishment of the EURODAC database for storing and comparing fingerprint data; the definition of common minimum standards to which member states had to adhere regarding the reception of asylum-seekers; rules on international protection and the nature of the protection granted; and procedures for granting and withdrawing refugee status (see Box 22.4). In the 2004 Hague Programme, second-phase instruments and measures were foreseen by the end of 2010, highlighting the EU's ambition to go beyond minimum standards and develop a single asylum procedure with common guarantees and a uniform status for those granted protection. In the 2008 European Pact on Immigration and Asylum, this deadline was postponed to 2012. The Lisbon Treaty, which entered into force in December 2009, changed the situation by m the EU since 201 3 and their concentration in particular geographical areas, has exposed the weaknesses of the Dublin System, however. Since t establishes that the member state responsible for examining an asylum application will tend to be the rountr y of the first point of rregular entry In May 2016. the Commission pi^esented a draft proposal the Dublin IV Regulation—to make the Dublin System more transparent and to enhance its effectiveness, while providing a mechanism to deal with the disproportionate pressure placed on countries on Europe's southern borders, such as Greece, ftaly. Malta, and Spain. Progress has been slow and problems remain. 334 EmekM. Ugarer transforming the measures on asylum from establishing minimum standards to creating a common system comprising a uniform status and uniform procedures. Since Lisbon, Article 80 TFEU has also introduced the principle of solidarity and has provided for the fair sharing of responsibility among member states. EU asylum actions should, where relevant, contain appropriate measures to give effect to the solidarity principle. The new treaty also significantly altered the decision-making procedure on asylum matters by introducing the ordinary legislative procedure (OLP) as the standard procedure. Although the Commission had tabled its proposals for the second phase of CEAS as early as 2008-09, negotiations progressed slowly. Accordingly, the 'second' phase of the CEAS was adopted only after the entry into force of the Lisbon Treaty. Set up in 2005 and revised in 2012, the Global Approach to Migration and Mobility (GAMM) is the external dimension of the EU's migration policy. It is based on a partnership with third countries and is designed to address the management of legal migration from outside the EU, the prevention and reduction of irregular migration, enhancing international protec tion and asylum policy, and the relationship between migration and development. The GAMM's primary focus is the Southern Mediterranean and the Eastern Partnership. Under rhe 'more for more' mechanism, the EU tries to persuade third countries to strengthen their border controls, restrict their visa policy, and readmit irregular migrants with incentives such as trade benefits, visa facilitation, or financial support. This is a controversial approach, and the GAMM has been criticized for omitting criteria on human rights in the selection of partner countries and for the absence of a mechanism for monitoring or suspending cooperation. KEY POINTS • CEAS was designed to meet three key challenges facing asylum poky across the EU. • CEAS was intended to be introduced in two phases' the first would introduce common minimum standards: the second would set up a common asylum policy. • The Global Approach to Migration and Mobility has sought to externalize the EU's migration policy. This has proven especially controversial. The Area of Freedom, Security, and Justice 335 The migration crisis and the EU response The origins of the EU migration crisis can be back to several points in recent history. For th» poses of this account, the events of 3 Octobi 'raced Put- « 2013 are taken as a significant moment. On that day ab carrying refugees and other migrants sank near the Italian island of Lampedusa with the loss of mor than 360 lives. This would be the first of many late tragedies in the Mediterranean. By 2015, the EUhad begun to see large numbers of arrivals fleeing the wars in Syria. During this year, 2.5 million people entered and claimed asylum in Europe, with around half of them Syrian. Other nationalities also continued to make their way to the southern European border states, including Eritreans, Somalians, Iraqis, and Afghanis. In August and September 2015, hundreds of thousands of refugees began to arrive in Germany, some having travelled on foot across Europe (see Figure 22.1). The long and dangerous journeys undertaken overland led to death for many people as they attempted to cross the Mediterranean on the Western, Central and Eastern routes, with most of them falling victims of people smugglers and exploitation. There are several ways to interpret this 'crisis'. The dominant narrative provided by the EU institutions sees this issue as both a humanitarian and a security crisis. This has presented the EU and its member states with a challenge to its inadequate common migration and asylum policies, not least because the EU's responses to a security crisis are unlikely to fit well within the range of responses one might expect as a consequence of a humanitarian crisis. While numerous official documents and commentators have emphasized the need to balance the need for security with the obligation to protect human rights, this tends to be easier said than done (see Box 22.5). The EU at first appeared to be paralysed and there was little agreement at member state level on how to respond to the 'crisis'. Although on paper there was an agreed plan for the relocation of refugees across the EU, not all member states followed it. Angela Merkcl, the Chancellor of Cermany, took a stand by announcing in August 2015 that Syrians were refugees and were welcome in Germany. The Dublin Regulation was suspended in Germany, so that asylum applications received there would be treated on a 'first country of application' basis. However, most of ure 22.1 Asylum applications per member state, in thousands. January-June 2015 Pip1 1 150-H 120 bo a 60 30 0 172 H 67 .12 31 29 21 10 12 12 DE HU FR IT SE AT UK BE NL BG Other MS Source European Pari amentary Research Service Hog (2016) EU Mifmory CMfenge: Possible Responses 1» The fefeee Crisis available at http:;/www.europarl.europa.eu/RegData,'e-.udes/BW&'2015/5683 li/EPRSJRipOl 5)568112_EN ?df___ Q BOX 22.5 THE HUMANITARIAN RESPONSE Italy launched a Search ind Rescue tSAR) operation, entitled iflare Nostrum' (our sea) in the autumn of 2013, following the Lampedusa shipwreck Mare Nostrum resulted in saving more than 100.000 lives It lasted for a year, costing the Italian government € I 14 m. However, when Italy asked the EU for support, none was forthcoming The operation ceased in 2014 iatdthe EU replaced it with Operation Triton, supported by 21 counli ics. which had limited aims and resources, operating only in the waters near the Libyan coast, ft rescued fewer people. Tnton was succeeded by Operation EUROMEDFOR. later known as Operation Sophia. SAR has been seen by many politicians and [political commentators as being a 'pull factor' for migrants In 201 7 and 2018. the EU (controversially) provided substantial funds to (and has trained) the Libyan Coastguard to conduct operations to rescue people from Libyan waters, then to return them to detention centres in Libya This policy and related ait oris nas been denounced bv many organizations as amounting to pushbacks' which are contrary to international obligations under the Geneva Convention The ^ap m SAR has been tilled, as far as possible, bv NGOs private individuals and humanitarian groups, who have saved many lives But NGOs are finding it increasingly more difficult to dc then SAR work as destination counties such as Italy seek to regulate and limit then woi k to contain arrivals the other EU countries did not follow suit. The result was that around 890,000 people arrived in Germany in 2015 to seek asylum, the large majority having travelled through Greece via the land border wirh Turkey or the Greek islands, then making their way across mainland Greece, through various routes through the Former Yugoslav Republic of Macedonia, Serbia, Hungary, and Austria to Germany. The 'Balkan Route' became a humanitarian corridor, but was seen by the EU as a weak link in the external border and a security risk, rather than an escape route for those fleeing wars Md conflicts and or poverty. Most member states sought to strengthen and militarize their borders in response to the crisis. The EU adopted measures to tackle smuggling and trafficking, creating hotspots in Italy and Greece and externalizing border control to the countries of North and West Africa (see Figure 22.2). This policy approach and response is premised on the view that the 'root causes' of migration can be identified and addressed to prevent the emigration of people towards Europe. More recently this con cept has become one of addressing the 'drivers' of migration. The externalization of migration policies 336 EmekM. Uprer Circular route {Albania - Greece) Albania 8 932 FYR of Macedonic Georgia Western Africa Guinea 874 Cote d'lvoire Western Mediterranean Guinea 7 164 Algeria Central Mediterranean Nigeria 153 946 Eritrea Somalia Source: European Parliamentary Research Service Blog (3016) EU Moratory Oafer.ge: Am* Responses To The Refugee Crisis available at httpsi/ eptnink:ank.eu.7;i5.W07/eu-migratory-.M has also included the externalization of protection responsibilities, as migration and asylum policies become conflated. The ways in which the 'crisis' has been framed in the media has also strengthened the hand of populist movements and intensified anti-immigration views. As a consequence, political elites at EU and national levels responded by trying to control immigration (see Chapter 27 on Brexit). Reduced immigration numbers and lower numbers of deaths continue to serve as central policy aims as well as indicators of policy success. When presented without context, this obscures the fact that many deaths continue to occur on land, in the deserts, in detention centres, and en route during migration journeys. In the absence of legal routes, the most dangerous journeys have become the only option for many who seek protection and/or a life in Europe. In view of the migratory pressure in the Mediterranean since 2013, the Commission launched the European Agenda on Migration in May 2015, which included several measures. One of the most high profile was the 'Hotspot' approach, set up between the European Border and Coast Guard Agency (EASO) and Europol, which helped frontline member states to identify, register, and fingerprint incoming migrants. The hotspot approach is also meant to contribute to the implementation of the emergency relocation mechanisms for a total of 160,000 people in need of international protection. It was proposed by the Commission to assist Italy and Greece, in particular. Relocation is meant as a mechanism to implement in practice the principle of solidarity and fair sharing of responsibility, as mentioned in the previous section. However, relocation rates have been lower than expected and relocations have been implemented slowly (see Table 22.2). The relocation scheme applied to eligible asylum seekers arriving in Greece and Italy between September 2015 and September 2017. Based on the arrival figures at the time and the expectation that they would continue at the same rate, member states agreed to support Greece with the relocation of 63,302 persons in need of international protection and Italy with 34,953 persons. |C^22 2 Member States' support to the Emergency Elation Mechanism (As of I 2 )une 2018) Relocated Relocated 1 Member States from Italy from Greece L-~— 44 X Belgium 471 7CC Bulgaria 10 50 Croatia 22 60 ICypnJS 47 96 Czech Republic X 12 Denmark X X ' Estor a 6 141 Finland 778 1,202 France 635 4,394 Germany 5,435 5,391 Greece X X Hungary X X Ireland X 1,022 Italy X X Latvia 34 294 Lithuania 29 355 Luxembourg 249 300 Mate 67 101 Motherlands ,020 1,755 Poland X X Portugal 356 1,192 Romania 45 683 Slovakia X 16 Slovenia 8 172 Spain 235 1,124 Sweden 1,392 1,656 United Kingdom X X Norway 816 693 Switzerland 920 580 Liechtenstein X 10 Iceland X X TOTAL 12.692 21,999 Source: bcropean Commission (201 8) available at https:// ec.europa.eu/home-affairs/sites/homeaffai-s/fles/what-wc-do/ pclides/european-agenda-migratior/press rTiaterial/docs/ state_of_play„-_relocation_en.pdf The Area of Freedom, Security, and Justice 337 The CEAS has proved to be largely unsuccessful because of blockages and resistance at member state level arising from the adoption of anti-migrant policies by national governments. Governments in Poland and Hungary have refused to implement the EU's new asylum system; and the Austrian government, before taking over the EU Council Presidency in July 2018, promised to end the emergency relocation mechanism. These blockages have resulted in a crisis for Greece and Italy, as refugees and migrants have been prevented from moving out of their countries of arrival. Indeed, it is now almost impossible for refugees to enter an EU country legally with the purpose of seeking asylum. These policies have largely proved inadequate to deal with the migration and refugee flows they were designed to address. The fact that cooperation has been successful only with respect to the creation and management of the EU's external border has led some commentators to observe that it works only at the level of the lowest common denominator (see Box 22.6). The EU's immigration and asylum regime now focuses on: (i) highly skilled labour migration; (ii) the control of immigration; (iii) a Common European Asylum System (CEAS); and (iv) the internalization and externalization of European migration policy in the form of the European Agenda on Migration. This has also resulted in the externalization of the EU's protection responsibilities (see 'Towards a Security Union?'). HQ BOX 22.6 THE Ell-TURKEY REFUGEE BjJ AGREEMENT Under the terms of the tU- lurkey Refugee Agreement, all irregular migrants or asylum seekers crossing from Turkey to the Greek islands are returned to Turkey, following an individual assessment of their asylum claims in line with EU and international law. Most of these refugees are Syaan For every Syrian being returned to Turkey, another Syrian will be resettled to the EU from Turkey As of mid-2018, however, only 916 irregular migrants have been returned from Greece to Turkey, while more than 4.000 Syrian refugees have been resettled from Turkey to the EU In parallel, the EU makes ava'laDle significant resources available to Turkey under its Facility for Refugees in Turkey (€6 bn for 2016-19) Boat arrival numbers in Europe along tne eastern Mediterranean route have dropped dramatically since the deal was signed, though the Agreement has been challenged by migration and human rights activists 338 Emek M. Ugarer The EU institutions claim to have little independent room for manoeuvre in the face of political challenges at national level. The appointment in Italy at the end of May 2018 of Matteo Salvini, the leader of the far-right party, the 'League', as the Minister of the Interior is a case in point. Salvini's first visit in his new role was to the port of Pozallo in Sicily (wrhich is a key arrival port for refugees and other migrants travelling from Lihya). He declared that Italy would reduce its spending on refugee reception conditions for hundreds of thousands of refugees. Meanwhile, the German Chancellor, Angela Merkel, was seeking consensus on European asylum reform (AgenceEurope, 4June 2018) hut saw little chance of the EU member states reaching agreement on reforms to the CEAS, or to the Dublin System. 'We need a common asylum system and comparable standards for determining who should be granted asylum and who should not.' She added: "... in the last phase of development, we need a common European refugee authority to handle all asylum procedures at the external borders on the basis of a uniform European asylum law'(Agence Europe, 4 June 2018). The Commission's view is that creating such an authority is a long-term objective. In the short term, the Commission has already proposed making the European Asylum Support Office (EASO) a European agency with certain European powers, notably in crises, and in allocating migrants among the member states on the basis of quotas. The European Commission progress report on the European Agenda on Migration provides clear evidence that migration and asylum policies have become increasingly conflated within a narrative of 'crisis'. By mid-2018 the EU and its member states had entered a phase in which humanitarian aid to refugees and other migrants was being criminalized. For example, in May 2018, three Spanish firefighters were due to appear in court in Greece, charged with the illegal transportation of persons without administrative permission to enter Greek territory. If convicted, they risk up to ten years in prison. At the same time, states were refusing to accept responsibility for people rescued from the sea. Politicians in Italy were arguing for the end of the common policies (Dublin and the CEAS) which have resulted in both Italy and Greece becoming 'holding pens' for hundreds of thousands of migrants and refugees. Austria and Denmark were calling for asylum applications to be processed outside the EU, '«the Balkan countries. In June 2018, the German ~" tion that was formed months after the Septer^" 2017 elections came to the brink of collapse as M * kel's coalition partner and CDU's Bavarian ' I CSU, and in particular its leader Horst Seehofer wlT serves as the Minister of Interior, precipitated a litical crisis by problematizing Germany's asyhj^ policy. A compromise that involved adopting'p0|-cies that seemed intended to displace the problem onto Austria and Italy was reached to save the roa lition. In these circumstances, in both the EU anj its member states, it is difficult to see how future migration and asylum policies can be seen as em bodying fundamental values at the core of the EIJ and this arguably calls into question the legitimacy of the entire European project. The question is posed as to whether member states failed intentionally, or unintentionally, to achieve coherence in protecting human rights in migration and asylum cooperation. The future of what remains of a Common European Asylum System remains a challenge for the EU as a whole. This matters for the EU's global reputation too. As Elizabeth Collect suggested atthebegirtnfngof 2017: The European Union will be overtly switching to a transactional, normative-averse approach to partnership that values migration flows over stability, which is in turn more important than democracy and rule of law. It will also be sending a signal that protection is optional. This is a trade-off that has been creeping up for several years, and likely has now become politically unavoidable, but will have ripple effects for Europe's voice on the international stage and its relations with neighbouring countries (Collett, 2017). KEY POINTS Attempts to create a common asylum system have largely been unsuccessful. The EU? main success has been in constructing a strengthened external EU border At first the EU appeared paralysed when faced with the migration crisis. The 'crisis' narrative is a result of the longer-term irammg of migration of non-EU citizens as a problematic security issue. Towards a Security Union? •Euro] move peans need to feel confident that, wherever they Union mem its within Europe, their freedom and their secu-. well protected, in full compliance with the . values, including the rule of law and funda- tal rights', opined the European Commission in 2015 communication to the Council and the Parlia-I ent on the 'European Agenda on Security' for 2015-20 In less than a 7e&r after 'ts adoption, the March 2016 coordinated suicide attacks in Brussels prompted Commission President Juncker to insist that the EU needs a genuine Security Union by improving information exchange and strengthening external borders. A good deal of police cooperation is necessary to achieve these ends. At the same time, such cooperation has its drawbacks and critics, even within the EU institutions, and certainly within civil liberties circles. For instance, the EU, while it now has broader powers in this arena, has simultaneously lamented a genuinely common approach to internal security, and the data protection hazards that accompany such initiatives. The Passenger Name Record (PNR) system is I a case in point. In 2016, the EU adopted a directive on the use of PNR within the context of its counter-terrorism efforts. PNR collects data such as personal information and itinerary on international passengers [ and, as such, could be helpful in flagging potential threats. At the same time, in order to collect information on potential threats, non-threatening individuals would also see their information compiled, and possibly shared within and outside the European Union as the EU has PNR agreements with the United States, Canada, and Australia. Parliament resisted this European Commission initiative long and hard until it was satisfied that adequate data protection measures were incorporated into it. Ultimately, although the institutional framework on police cooperation has become simpler since TFEU, police cooperation (along with judicial cooperation in criminal matters) remains more loosely incorporated into the EU than the other [ planks of AFSJ. The European Agenda on Security identifies three by priorities and challenges for the near future: fighting terrorism, disrupting organized cross-border crime, and tackling cybercrime. This takes us all the way back to the be ginning of this chapter. JHA/AFSJ cooperation owes its genesis partly to the efforts of