The EU relocation mechanism for Italy and Greece promised to be the first fully-fledged experiment of “non-just-financial” solidarity among EU Member States in the field of asylum. After more than a year of implementation, its shortcomings appear as clear as the sun in the summer sky. However, it holds some merits, primarily to have shown the advantages of a better integration of NGOs in the governance of asylum redistributive schemes. The same NGOs are now under attack. Why?
Setting and Upsetting the Stage for Relocation in the EU
The EU relocation mechanism, set up by European Union Council Decisions 2015/1523 and 2015/1601, was conceived as an ad hoc response to the migratory “emergency”, derogating the criteria aiming to determine the competent State for asylum procedures under the Dublin III Regulation.
Its goal was twofold. First, to counteract the gradual dismantling of Schengen through the so-called “hotspot approach” – the swift identification and fingerprinting of all irregular migrants by frontline Member States to limit secondary movements in Europe. Second, to unburden asylum systems of frontline Member States through an asylum seekers’ redistributive scheme. Only the first objective was fulfilled after more than one year of implementation, as shown by the record rate of migrants identified upon arrival in the Italian and Greek hotspots. The promise to enhance solidarity and responsibility-sharing among EU Member States, however, was not kept, as shown by the extremely low number of relocated persons.
These outcomes were analyzed in a study, recently-published by the European Parliament. The study identifies three different types of challenges that have impaired the functioning of this solidarity scheme, affecting both the effectiveness of inter-state cooperation and the EU human rights standards for the treatment of asylum seekers.
First, the “local” challenges related to the limited administrative and reception capacity of Italian and Greek asylum systems, which had certainly been foreseeable by the European legislator considering Strasbourg-Luxembourg case law scrutinizing (and in a number of cases condemning) reception conditions of asylum seekers in Italy and Greece.
Second, the “external” challenges linked to unjustifiable delays in transfer procedures, showing a persistent lack of cooperation and mutual trust amongst participating States – nothing new under the sun, considering past soft-law experiments and that the relocation proposal was openly challenged by a number of EU Member States and widely watered-down during the legislative process.
Finally, the “normative” challenges embedded in the legal framework and linked to the absence of effective incentives for receiving Member States and eligible asylum seekers to comply. In lieu of such incentives, the EU relocation-hotspot approach put forward a combination of coercion against migrants and control of frontline Member States; an approach that, due to its human, political and economic unsustainability, cannot but turn into a losing strategy in the medium/long-run.
The relocation experiment, however, had some merits: first and foremost to have shown the advantages of better integrating NGOs and organized civil society in the governance of asylum redistributive schemes. In Italy and Greece, independent bodies have undertaken a fundamental bridging action between boat people and public authorities, collaborating with EU Agencies and local administrations to fast-track relocation and follow-up vulnerabilities.
The Contested Role of NGOs in Relocation and Rescue at Sea: Guardian Angels or Dangerous Criminals?
Despite facts and figures, which testify the valuable contribution of NGOs and organized civil society to the overall functioning of the relocation-hotspot approach, the same actors soon started to be blamed for providing assistance to irregular migrants and/or for saving too many lives at sea.
In Greece, NGOs assisting refugees in the examination procedures were placed under state control. In Italy, some NGOs were accused of working as a “pull factor” for migratory inflows, becoming “taxis for migrants”, and even to play an active role in the migrant-smugglers’ business model – for example, in the allegations of collusion between some newly-formed NGOs operating in the Mediterranean and migrants’ smugglers, formulated by the Chief Prosecutor of Catania. Although the prosecutor was unable to substantiate his argument with evidences, the echo of his stance was amplified by media and politicians, calling not only for a more stringent control of NGOs, but de facto equating humanitarian assistance with the criminal offence “facilitation of unauthorized entry”.
This rush against humanitarian aid is fully consistent with the political goal of rising public concerns over migrants. Keeping these concerns high, helps distract public opinion from the core socio-economic problems. Thus, while 2017 is already a record year for the loss of lives in the Mediterranean Sea, the “levée en masse” of European nationalistic leaders against NGOs tries to hide that the “missing link” in the migrant-smugglers’ business model is the lack of viable legal alternatives for migrants to cross the external borders of the EU.
It is even more worrisome when EU “independent” bodies such as Frontex Agency vow the same rhetoric. And, when the European Commission refuses to recast the EU legislation (the so-called “facilitators package”), leaving a wide margin of discretion as to whether to criminalize those who provide humanitarian assistance to migrants-at-risk or not. Further, the EU Court of Justice, in the X and X case (on humanitarian visa), somehow joined this trend, missing the opportunity to take non-refoulement and asylum obligations seriously.
Connecting the dots
By declining to admit the dysfunctionalities of a coercion-based system and embrace a genuine incentive-based approach to relocation, the Union and its Member States missed a precious opportunity, not only to realign their policies with their legal/cultural values and human rights rhetoric, but also to test a more sustainable alternative to Dublin in budgetary terms.
The relocation mechanism – framed as a multi-stage, multi-actor process – could be used as a testbed for the development of solidarity-based allocation schemes seeking to advance the potential contribution of NGOs, grassroots organizations, diasporas and transnational civil society organizations to a more legitimate, efficient and equitable migration governance: in line with the New York Declaration, adopted by the UN Summit on 19 September 2016.
In addition, research should work on policy recommendations, which try to reconcile the conflicting values underpinning legal obligations at play: on the one hand, international and European rules on “save&rescue”, on the other hand, the fight against migrants’ smuggling.
Postdoctoral research fellow in European Union Law, Law Department, Roma Tre University and Senior visiting fellow, Institute of Public Law, University of Bern
 It is worth recalling that Associated Countries, such as Switzerland, proved to be more prone to cooperate than EU Member States, shedding light on how deep is the fracture in EU governance.
 See M. Wieruszewski, Europäischer Gerichtshof: Keine humanitären Visa für Flüchtlinge, in nccr – on the move blog, 06.04.2017.
 This opportunity is not totally wasted. The ongoing reform of the Dublin Regulation offers a second chance to craft a more efficient, equitable and human-rights-oriented scheme for asylum seekers’ distribution among Member States and Associated Countries in case of mass influx – a chance that the European Parliament appears to be well-aware of, having regard to the draft report discussed at the LIBE Committee meeting of 9 March 2017.