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Stine Bonnesen Project Counsellor: Per Lunde

Louise Svenstrup BA-thesis, May 2011

Table of Contents1

1 Introduction............................................................................................................................................ 21.1 Background LS & SB....................................................................................................................................... 21.2 Methodology LS & SB..................................................................................................................................... 4

1.2.1 Structure of the thesis LS & SB..............................................................................................................................41.2.2 Delimitation LS & SB..................................................................................................................................................51.2.3. Assessment of Sources and Choice of Theory LS & SB...............................................................................5

1.3 Theory................................................................................................................................................................ 61.3.1 Neofunctionalism LS..................................................................................................................................................71.3.2 Neo-neofunctionalism LS......................................................................................................................................101.3.3 Liberal Intergovernmentalism SB.....................................................................................................................11

2 Account and Analysis of EU Asylum Policy.................................................................................162.1 The Preliminaries....................................................................................................................................... 162.2 Dublin.............................................................................................................................................................. 18

2.2.1 Dublin and Schengen LS and SB.........................................................................................................................182.2.2 First Country of Asylum SB .................................................................................................................................202.2.3 Effective Remedy SB...............................................................................................................................................212.2.4 Non-refoulement and Safe Countries SB........................................................................................................23

2.3 Directives....................................................................................................................................................... 232.3.1 The Qualification Directive (Van Krieken, 2004) LS.................................................................................232.3.2 The Reception Directive (Van Krieken, 2004) LS.......................................................................................242.3.3 The Procedures Directive (Van Krieken, 2004) LS....................................................................................25

2.4 Recapitulating the Main Points of EU Asylum Policy LS.................................................................252.5 Analysing the Broader Developments..................................................................................................26

2.5.1 The Boomerang Trend LS.....................................................................................................................................262.5.2 EU Asylum Policy From an LI Perspective SB..............................................................................................28

3 The ECHR Ruling.................................................................................................................................. 303.1 Elaboration on the Circumstances in Greece that led to the ECHR Ruling LS.........................303.2 CASE OF M.S.S. v. BELGIUM AND GREECE 21st OF JANUARY 2011 SB.........................................323.3 Discussion...................................................................................................................................................... 34

3.3.1 Statement of Cecilia Malmström, European Commissioner for Home Affairs SB........................343.3.2 Capabilities and Expectations? SB....................................................................................................................373.3.4 Economic vs. Human Rights Interests SB......................................................................................................383.3.5 Reflections on the Boomerang Trend LS........................................................................................................39

3.4 Conclusion LS & SB....................................................................................................................................... 42

4 Bibliography......................................................................................................................................... 45

5 Table of Abbreviations...................................................................................................................... 49

6 List of enclosures................................................................................................................................ 50

1 LS: Louise Svenstrup SB: Stine Bonnesen

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1 Introduction

1.1 BackgroundOn 21st January 2011 the European Court of Human Rights (ECHR) ruled against Greece and

Belgium on the issue of asylum in the case of M.S.S v. Belgium and Greece, 30696/092. The

court established that Belgium returning an Afghan male to Greece was a violation of human

rights, even though the return was in accordance with EU law. Under the Dublin Regulation

the first country an asylum seeker enters is the country responsible for processing the asylum

application and he/she should be returned to that country, if encountered somewhere else.

Greece is one of the main points of entry, but it has struggled during the financial crisis to the

point of near bankruptcy leaving it without resources to handle the enormous pressure from

especially Northern African and Arabic refugees. The lack of resources has led to asylum

seekers being kept in detention in facilities of a very questionable standard with poor

sanitation and lack of room. These and other conditions are the reason for the ECHR ruling.

Because of the ruling it is no longer an option for other EU member states (MS) to return

asylum seekers to Greece, which in effect erodes the very foundation of the Common

European Asylum System (CEAS). That raises the question of how EU asylum policy is going to

be affected. We find it is a very interesting question and it has lead to the following thesis

statement:

What implications does the European Court of Human Rights’ ruling against Greece and

Belgium have for the future of the common EU asylum policy?

To help answer the thesis statement, the following hypotheses will be addressed:

The development of EU asylum policy has gone from intergovernmental decision-

making to supranational and backtracked to intergovernmental decision-making – a

boomerang trend

2 Will be referred to as the ”ECHR ruling” from here on

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and

Based on the above hypothesis being true, progress in EU asylum policy will come to a

halt and disintegration of the area is a likely future outcome

In order to prove or disprove the hypotheses and answer the thesis statement, we will

account for and analyse the development of EU asylum policy with a particular focus on

Dublin II. First, we will give a brief historic overview of the developments leading up to Dublin

II. Second, we will account for and analyse the elements of Dublin II with the most importance

to understanding the implications of the ECHR ruling. The areas will be: safe countries, first

country of asylum, non-refoulement and options for review and appeal. The analysis will be

carried out in an integrationist theoretical frame. After accounting for and analysing EU

asylum policy, we will move to a discussion of the ECHR ruling. We will briefly outline the

findings of the court and the articles 3 and 13 from the Convention on Human Rights and

Fundamental Freedoms that Greece and Belgium were found in violation of and say a few

words about the conditions in Greece that resulted in the breach of the above articles. Having

established the background of the ECHR ruling, we will move into the discussion itself,

starting off with an assessment and analysis of the publicly stated opinion of the Commission,

as we believe it is an important contribution to deal with the essence of the question in the

thesis statement and the second hypothesis in particular, because it will shed light on what

can be expected from the Commission in connection to the second hypothesis. Finally, we will

sum up our findings in the conclusion and give an overview of the findings from the analysis

and discussion to answer our thesis statement. The structure of the thesis will be outlined in

the methodology section below.

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1.2 Methodology

1.2.1 Structure of the thesisWe have chosen the following structure to uncover the thesis statement to the fullest.

First, there will be an introductory section that includes an introduction to the subject of the

thesis, the thesis statement and hypotheses, an account of the methodology applied in terms

of structure of the thesis, delimitation of the subject area, choice of scientific theoretical base,

a critical assessment of the sources used and an account of the chosen theories.

Second, a section compromised of an account of EU asylum policy and subsequent analysis of

the developments in that policy area. The main focus in this section will be the Dublin

Regulation (2003), as it is the current legal basis of the CEAS and outlines the principles that

the ECHR has found to be in violation of international law. Preceding the subsection on the

Dublin Regulation will be a brief historic outline of the developments leading up to the

regulation to establish the foundation it is built upon. The historical outline will be the subject

of analysis on a less detail-oriented level than the regulation, as there are important insights

to be gained from that regarding the past, present and future progression of the EU asylum

policy and the hypothesis of a boomerang trend in decision-making.

Finally, the last section consists of an account of the ECHR ruling and the situation in Greece

leading to it. Based on that account and the analysis of EU asylum policy in the previous

section, we will engage in a discussion of the implications of the ECHR ruling for EU asylum

policy. With that as our background, we will apply the above-mentioned theories in an

attempt to predict possible future developments in EU asylum policy and address the second

hypothesis.

We have chosen this structure for the thesis, because it is best suited to answer the thesis

statement. The reasoning behind this choice is that an account and analysis of EU asylum

policy is required in order to analyse the implications of the ECHR ruling, which makes our

choice of scientific theoretical approach hermeneutic. We analyse one part in its context and

when analysed it becomes part of the context for analysing the next part.

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1.2.2 DelimitationIn our delimitation of the thesis we decided to focus mainly on the Dublin Regulation, because,

as mentioned above, it is the focal point in an analysis of the ECHR ruling. We did not find it

necessary to analyse every step leading up to the regulation in detail, only to provide a brief

overview as a realm of understanding. Also, in the regulation we have not included every

aspect that it deals with, only the areas affected by the ECHR ruling and areas required to

understand those areas, which means we have partly or completely left out issues such as

family reunification, unaccompanied minors and safe 3rd countries. Not because of a lack of

importance in general, but because of a lack of importance for the scope of the thesis. Finally,

we are only concerned with the signatories of the Dublin Regulation that are EU MS, as the

remaining countries do not directly influence EU asylum policy.

1.2.3. Assessment of Sources and Choice of TheoryIn the following we will comment on our reflections on the main sources used for the thesis.

A big part of the sources used are obtained via the Internet. The EU publishes and updates its

legal documents, court rulings, opinions etc. online, which makes it the most up to date source

of information when dealing with an EU issue. The main advantage is that it makes it possible

to get the material in focus straight from the source. Therefore, we have accessed for instance

the Dublin Regulation, the CJEU ruling, case C-72/06, and the EU Charter of Fundamental

Rights online. The availability argument applies to the sources used from governmental and

non-governmental organisations such as the UN, HRW, ECHR etc. as well.

We have mainly chosen to use the actual legal documents for our analysis instead of

commentaries or other edited versions, as we believe it eliminates some of the risk of biased

interpretation of sources, even though we are fully aware that avoiding it entirely is not

possible, since no one can be completely objective. Furthermore, analysis of the precise

wording of the acts is the closest one can get to understanding the intended purpose of the

document.

We have, however, used other sources than the ones accessible online. A main source of

reflections on EU asylum policy has been Vigdis Vevstad’s Utvikling av et felles europeisk

asylsystem, 2006. It proved to be a bigger challenge than expected to find a comprehensive

review of the asylum policy in the EU, but Vevstad offers a very convincing contribution and

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must be considered very knowledgeable in the field based on her experience. Below is a brief

description of her qualifications:

Vigdis Vevstad has a doctorate in international public law. Her special interests cover refugee law, human rights law and EU developments in the area of freedom, security and justice. Vevstad is the Norwegian member of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe. She has a research cooperation agreement with the Institute for Social Research (ISF) in Oslo and has published three books in international refugee and migration law.Vevstad works as an independent consultant and researcher. Tasks include work for the University of Oslo, Bergen and Brussels, the European Parliament, the European Commission, European governments and NGOs. Previous professional experience has been in academia and governmental and non-governmental, nationally and internationally, (Norwegian Ministry of Foreign Affairs, Immigration authorities, the Norwegian Refugee Council and UNHCR) (Vevstad, 2011).

Our main source for the theory section is European Integration Theory by Antje Wiener and

Thomas Diez, 2004 and 2009 (1st and 2nd ed.). They offer an exhaustive overview of European

integration theory by bringing together a collection of accredited scholars in the area to

account for the different theories. We have chosen to use Neofunctionalism and Liberal

Intergovernmentalism to answer our thesis statement, as we find they are best suited for the

purpose. They offer insights on different aspects of EU asylum policy and therefore add up to

an extensive and thorough tool for analysing the subject area of the thesis. Both theories

provide explanations for integration progress, actors’ choice of actions and the outcome of

such. At the same time both theories fail to give much insight into possible future

developments. Therefore, we have also applied Philippe C. Schmitter’s revised and elaborated

version of Neofunctionalism, Neo-neofunctionalism. Even though we only have one source for

our theories, we have deemed it to be sufficient, because the authors of the 3 chapters we

have used (chap. 3, 2004 and chap. 3 and 4, 2009) are written by founders or students of

founders of the theories.

1.3 TheoryWe share the view of Wiener & Diez (2009) in the introductory chapter of European

Integration Theory that a grand theory for EU integration does not exist. Theories cover

different areas of the process and for our intents and purposes we have chosen to apply

Neofunctionalism, Neo-neofunctionalism and Liberal Intergovernmentalism, as we find that

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they have the highest degree of explanatory power in our field of study. We will account for all

three in turn.

1.3.1 Neofunctionalism Wiener & Diez categorise Neofunctionalism as an explanatory theory in that it seeks to

explain why integration takes place and what lies behind the choices made by policy-makers

concerning policies and institutional agreements (Niemann and Schmitter, 2009, 11). The

theory was first formulated in the late 1950s and early 1960s.

As summarised by Niemann and Schmitter (2009) in chapter 3 of European Integration

Theory, Haas and Lindberg, who are considered the founding fathers of the theory, see

integration as a process that develops over time, not an outcome or state. Regional

institutions are created and expanded as a consequence of the changing expectations and

attitudes of actors. In the early conceptions of Neofunctionalism the goal was a grand theory,

especially for Haas, and spillover, the most important element of the theory, was considered

inevitable and automatic (Niemann and Schmitter, 2009).

Niemann and Schmitter (2009) argue that there are five assumptions behind progress of

integration:

1. Actors are rational and self-interested, but they are able to learn and change their pref-

erences. Interests of actors are likely to change during the integration process

2. Regional institutions gain a life of their own e.g. through their employees who are fo-

cused on increasing their power, thereby becoming a vehicle for integration

3. Decisions are more often than not taken with imperfect knowledge of their con-

sequences and often under time pressure, which means that the consequences of one

decision often lead to new decisions and therefore more integration

4. Decision-making is a positive-sum game, not a zero-sum

5. Haas originally believed the spillover process would be automatic, based on the as-

sumption that emerging functional interdependencies between whole economics and

their productive sectors led to more integration

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Spillover

Spillover is the way Neofunctionalism explains integration progress in Europe. It operates

with three different types of spillover: functional, political and cultivated. They will now be

explained in more detail.

Functional Spillover

Functional spillover refers to the idea that some sectors are so interdependent that

integration in one sector leads to technical pressures pushing states to integrate other sectors,

as integration of the original sector is only fully functional, if further integration is

undertaken. The spillover from the Single European Market (SEM) and the free movement of

people to justice and home affairs (JHA) (visa, asylum immigration etc.) is an example

(Niemann and Schmitter, 2009).

Certain conditions must be met in order for functional spillover to occur. First, functional

pressures must be perceived as compelling. Second, actors must not anticipate that further

integration in one area will lead to problems in other areas and possible undesired

integration, unless the anticipated benefits from the original integration are larger than the

concerns of the effects of the spillover. Third, high issue density leads to more possible

functional interdependencies. In other words, the higher the level of integration, the more

spillover (Niemann and Schmitter, 2009).

Political Spillover

Political spillover is defined as the integrative pressures by national elites (governmental and

non-governmental), which have recognised that problems of high importance cannot be

solved satisfactorily at the domestic level. This is thought to lead to a gradual learning

process, where expectations and, in some cases, loyalties are shifted to the regional centre


For interest groups and governmental elites alike, there are conditions to be met for

integration to occur. Interest groups will seek supranational solutions when four criteria are

satisfied. First, potential gains must be high. Second, benefits can easily be determined. Third,

the issue area has been governed by the EU long enough for the interest group to have learned

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how policy processes and coordination at the EU level functions and for learning processes to

take place. Finally, functional spillover or external pressures encourage the rationale for

supranational solutions. It is worth noting that high complexity and a lack of transparency can

hinder interest group participation (Niemann and Schmitter, 2009).

Governmental elites in working groups and committees can foster integration through

socialisation and learning processes. The following conditions must be taken into account for

these to take place. First, they need time to develop. Second, the processes are significantly

constrained, if prominent committee or working group members are distrusted. Third, the

processes are impaired, if issues become politicised. Fourth, in case of bureaucratic pressure

from unfavourable national ministries and administrations, the processes can be

counteracted. Fifth, they can be impeded when officials are opposed to changing norms and

habits and feel they have been forced into the EU. Finally, obstruction can occur when

negotiators do not have the necessary experience and negotiations are technical in nature


Cultivated Spillover

Cultivated spillover is the cultivating role of supranational institutions and the integration it

can bring about. Niemann and Schmitter( 2009) use the Commission as a basis for their

explanation of this type of spillover.

An institutionalised mediator like the Commission often oversee and control supranational

bargaining, creating a forum where actors are inclined to agree on common stands so as not to

endanger the areas where consensus exists. Parties in that type of negotiation tend to give in

on some issues to gain on others, and common interests are upgraded to a degree where

everybody feels comfortable. Contrary to lowest common denominator bargaining, it is a

process of upgrading common interests. The Commission’s opportunity to act as an

integrative force is conditioned by the following. First, its ability to forge internal cohesion.

Second, its capacity to shape the agenda. Third, how skilfully it cultivates relations with

member governments, interest groups and other actors, thereby securing support for its

proposals. Fourth, its ability to build consensus and broker compromises, often while

upgrading common interests. Fifth, whether it is able to apply external and functional

spillover pressures as reasons for integration. Sixth, its awareness of the limits of its

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leadership vis-à-vis MS, so it does not overplay its hand. Niemann and Schmitter (2009) also

mention a few other factors: the need for effective interest groups as allies and the need for

support from a significant political actor such as a powerful MS in order for its leadership to

be most effective. When the above conditions are not present, the Commission only has

marginal influence on integration.

Criticism

First, Neofunctionalism founders considered it a grand theory that could explain all

integration at all times under all circumstances. This is obviously not the case and has been

forsaken by later theorists such as Schmitter (see Neo-neofunctionalism below). Second, the

same goes for the critique of a narrow focus on Europe and too little focus on the external

effects of the global world, which has also been dealt with in newer versions of the theory

(Niemann and Schmitter, 2009). Third, the criticism raised against spillover being considered

something automatic has also been addressed by e.g. Schmitter (see below), who has added

qualifications to the term. Fourth, as a result of the time where Neofunctionalism was

developed and the economic situation in the world was good, economic growth was seen as

something ever ongoing and with equal benefits for all. This has of course later proven not to

be true. Fifth, there have been claims that the theory underestimates sovereignty and

nationalism as barriers to integration. The “empty chair” politics by Charles de Gaulle has

been used as an example, but Neofunctionalism argues that it did not hinder further

integration, only slowed it down for a while (Niemann and Schmitter, 2009).

Finally, the theory seems very suitable for explaining integration outcomes, but is not very

useful when trying to predict future outcomes. Neo-neofunctionalism below offers a solution

to that problem.

1.3.2 Neo-neofunctionalismSchmitter has addressed some of the critique in his revision and elaboration of

neofunctionalist theory, neo-neofunctionlism (Schmitter, 2004). He moves away from the

assumptions of grand theory and spillover as something automatic. He pays special attention

to general assumption number 3 above, namely that one decision often leads to another. In his

opinion, the foundation of integration is decision cycles. MS engage in regional cooperation to

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solve transnational problems and the progress of integration is determined by the

contradictions that arise in the process of reaching a common solution to a problem, which

can lead to four different outcomes: spillover, further integration; spill-back, disintegration or

even MS pulling out of regional cooperation; build-up, the surrender of more power to a

regional institution without expanding its mandate; spill-around, fast growth of specialised,

strictly intergovernmental organisations. In addition, Schmitter (2004) suggests the option of

muddle-about, which equals no changes and MS trying to manage as well as possible with the

instruments already available.

These different solutions are all options at the decision cycle level Schmitter (2004) calls

priming. He argues that the EU has passed through the previous level, initiating, and is on its

way to the next, transforming. But from his point of view, it would require a major crisis to

provoke such a response, where the MS would transcend their initial commitment and move

beyond integrating their economies to integrating their polities. There are still too many

options for functional spillovers in the latter category for that to happen, in Schmitter’s

(2004) view. Also, since integration is considered a series of crisis-provoked decision cycles,

there is no such thing as irreversible progress, and there can be moves away from and

towards integration simultaneously in different issue areas (Schmitter, 2004).

1.3.3 Liberal IntergovernmentalismIn the following, an account of the theory of Liberal Intergovernmentalism (LI) will be given.

LI is a European integrationist theory developed by Andrew Moravcsik in 1993 as a means to

help explain European integration. The theory is a reaction against intergovernmental theory,

and it can be characterised as a baseline theory, because LI is grounded in broader social

science theory. It seeks to modernise integration theory by drawing on general political

science theory.

Two basic assumptions about politics yield the foundation for LI. Firstly, that states are actors.

The EU, like other international institutions, can be profitably studied by treating states as

critical actors in a context of anarchy, and the European Community (EC) is best seen as an

international regime for policy co-ordination. Thus states achieve their goals through

intergovernmental negotiation and bargaining. Moravcsik’s (2009) assumption is not to be

seen as a realist notion: national security is not the dominant motivation; state power is not

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based on coercive capabilities; states preferences and identities are not uniform; and

interstate institutions are not insignificant. LI, to put it simply, acknowledges a blunt but

empirical fact about contemporary institutions such as the EU: member states are ‘masters of

the treaty’ and continue to enjoy pre-eminent decision-making power and political legitimacy.

The second basic LI assumption is that states are rational. Actors, in this case the MS, calculate

the utility under the circumstances. Therefore, collective outcomes are explained as a result of

aggregated individual action based on efficient pursuit of these preferences. Nonetheless,

collective outcomes are subject to the information at hand and uncertainty about the future

(Moravcsik and Schimmelfenning, 2009, 68). If the MS agree to cooperate, in this case, in the

arena of an international institution, they do so because it serves as a benefit to each single

state actor. Therefore, the establishment of international institutions can be explained as a

collective outcome of interdependent rational state choices and intergovernmental

negotiations (Moravcsik and Schimmelfenning, 2009, 68).

According to Moravcsik (2009), the states’ decision to cooperate by forming international

institutions can be explained by using a three-stage framework. It goes as follows:

States define their preferences, then bargain to substantive agreements, and finally create or

adjust institutions to secure those outcomes in the face of future uncertainty. Each stage is

separate, and each stage is explained by a separate theory. Moravcsik (2009) explains that

cooperation outcomes can be explained only at the end of the multi-clausal sequence. In order

to be used as a tool to analyse European integration more accurately, the three-stage

framework is explained more in depth by using precise theories of preference, bargaining

and institutionalism.

1. National preferences are driven by general geopolitical ideas and interest or by issue-

specific (generally economic) interest.

2. Substantive bargaining outcomes are shaped by manipulation of information by

supranational entrepreneurs and information asymmetries or by intergovernmental

bargaining on the basis of asymmetrical interdependence

3. The choice of EU institutions reflects federalist ideology, the need for technocratic

management, or an interest in securing credible MS commitments (Moravcsik and

Schimmelfenning, 2009, 69)

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The different stages in Moravcsik’s (2009) three-stage theory will now be explained in detail:

National Preferences

LI treats states as unitary actors based on the assumption that domestic political bargaining,

representation and diplomacy generate a consistent preference function. According to

Moravcsik (2009), the foreign policy goals of national governments vary in response to

shifting pressures from domestic social groups, whose preferences are aggregated through

political institutions. The essential goals of states, the states’ preferences, are neither fixed nor

uniform, meaning that they vary amongst states and within the state itself. This constitutes

that state preferences are ever changing and of tangible character. Therefore, they can change

across time and according to issue-specific societal interdependence and domestic

institutions. Thus the term issues-specific is a determiner within the scope of national

preference. Moreover, the states’ preferences are driven by issue-specific preference

functions about how to manage globalization. The model of issue-specific preference differs

depending on the nature of the specific issues in question, whether it be of economic

character or of a more ideological character. Moreover, Moravscsik’s (2009) empirical

analysis of European integration showed that the preference of national governments have

mainly reflected concrete economic interests rather than other general concerns like security

or European ideals. It is important to note that economic interests do not tell the whole story

and Moravcsik (2009) points out that geopolitical interest (even more than ideology) also had

an important impact on European integration (Moravcsik and Schimmelfenning, 2009,68-69).

Substantive Bargaining

Moravcsik (2009) emphasises that the national preferences of different states rarely converge

precisely. LI deploys a bargaining theory of international cooperation, which stems from

rational institutionalism; it is used to explain the nature of substantive outcomes among

states that have conflicting national preferences.

States must overcome suboptimal outcomes collectively and achieve coordination or

cooperation for mutual benefit, yet at the same time they must decide on how the mutual

gains of cooperation are distributed among the states. Collective and individual interests often

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clash with hard bargaining over distributional gains, which eradicate the willingness and

ability of states to cooperate. In this specific context bargaining theory argues that the

outcome of international negotiation is highly dependant upon the relative bargaining power

of the actors. Therefore, bargaining power in international politics, as in social life, might

result from many factors. LI posits that in the EU context, asymmetrical interdependence 3 and

information about preferences and agreements play a vital role. Usually, those actors that are

least in need of a specific agreement, relative to the status quo, are best capable of threatening

others with non-cooperation and thereby forcing them to agree to compromise. As a result,

those actors that have better and more information about other actors’ preferences and the

working of institutions are able to manipulate the outcome so that it turns out to their

advantage. As is described above, LI aims to explain the efficiency of bargaining and the

distribution of gains from substantive cooperation among states, whose preferences have

been determined (Moravcsik and Schimmelfenning, 2009, 70-71).

Institutional Choice

When explaining the establishment and design of international institutions once a substantive

agreement is struck, LI follows neoliberal institutionalism in stipulating that international

institutions are often necessary conditions for durable international cooperation. In this

respect, LI concurs with some claims, which are normally attributed to neofunctionalist

theory. It puts forward that states deliberately delegate authority to supranational

organisations capable of acting against the subsequent preferences of governments.

Moreover, institutions incorporate unintended and unwanted consequences under conditions

of uncertainty – an essential component of regime theory. Above all, however, institutions

help states reach a collectively superior outcome by reducing the transaction costs of further

international negotiations on specific issues and by providing the necessary information to

reduce the states’ uncertainty about each other’s future preferences and behaviour. States

establish rules for distribution of gains according to the already existing bargain and reduce

the costs of coordinating their activities, monitoring the activities of others, and mutually

3 Asymmetrical interdependence means; the uneven distribution of the benefits of a specific agreement (compared to those of unilateral pr alternative possibilities known as ‘outside options’).

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sanctioning non–compliance. Consequently, issue-specific problems of cooperation caused by,

above all, the severity of distributional conflict enforcement problems and by uncertainty

about the preferences of other actors and the future states of the world, require and yield

institutional design (Moravcsik and Schimmelfenning, 2009, 72). LI argues that the issue-

specific variation in the delegation and pooling of sovereignty reflect issue-specific concerns

of national governments about each other’s future ability to comply with the substantive deal

reached either in the sense of strict enforcement or future elaboration of a bargain. Moravcsik

(2009) argues that by transferring sovereignty to international institutions, governments

effectively remove issues from varying influence of domestic politics and decentralised

intergovernmental control, which might build up pressure for non-compliance, if the cost for

powerful domestic actors is high. The key to successful policy implementation is credible

domestic commitment by strengthening the national executive or the very domestic groups

that support the policy in the first place (Moravcsik and Schimmelfenning, 2009, 72-73).

Theoretical Criticism

There has been criticism of LI as a valid theory, and the applicability of the theory to European

integration has been questioned. The main critique is as follows: Historical institutionalism

argues that LI only focuses on conscious intergovernmental decision-making at treaty-

amending moments, and thereby overlooks many unintended or undesired consequences that

occur from treaty amendments. From this argumentation the critics conclude that LI gives a

misleading impression of integration as a whole. Other critics point to empirical examples

where LI propositions do not seem to hold.

Moravcsik (2009) has addressed the criticism that has been raised and argues that LI is a

valid theory for analysing European integration. Moravcsik (2009) argues that LI is not a

universal theory and thus explains integration under most conditions, but not under those

conditions that violate its assumptions about preferences, bargaining and credible

commitments. Moreover, LI does not seek to explain every issue of European integration, but

works as a tool for analysing issue- specific policies from the three-stage framework of

national preferences, substantive bargains and institutional choice, and therefore it can not be

ruled out as a theory without validity (Moravcsik and Schimmelfenning, 2009, 74-75).

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2 Account and Analysis of EU Asylum Policy

In the following, an account will be given of the development of the Common European

Asylum System (CEAS). The main focus will be on the Dublin Regulation 4, as it is the current

legal foundation of EU asylum policy and is what establishes the principles that the ECHR

ruling has found in violation of human rights. The areas of the regulation of main importance

to the ECHR ruling will be analysed on the background of Neofunctionalism and Liberal

Intergovernmentalism and the broader developments of CEAS will also be subjected to a

theoretical analyses, but the section will begin with a brief historical overview of the

developments to lay the foundation for the analysis.

2.1 The Preliminaries An overview of the developments leading up to Dublin II

The first talks of EU asylum policy emerged in the 1980s in the wake of the collapse of the

Soviet Union and the outbreak of the Balkan wars in the 90s, which led to the first massive

influx of asylum seekers in EU history (Vevstad, 2006). The sudden rise in the number of

asylum seekers meant that the EU was facing the problem of asylum seekers enjoying the

same right of free movement on the territory as its citizens. That made a common asylum

policy a necessity to ensure the functioning of the Single European Market (SEM) and

Schengen (Vevstad, 2006).

Leading up to the creation of CEAS there was a series of developments. First, the Dublin

Convention or Dublin I was negotiated in 1990 and entered into force in 1997. CEAS, with its

two phases (1999-2004 and 2005-2010) has Dublin I and later (2003) Dublin II (Dublin

Regulation) as its foundation. Second, the Maastricht treaty (signed 1992) was the first

mentioning of a common asylum policy in a legal EU document. It was placed in the third

pillar, Justice and Home Affairs (JHA), and discussions of the policy took place in working

groups under the European Council, subjecting it to intergovernmental decision-making

(Vevstad, 2006, 62-63). Third, the treaty of Amsterdam (signed 1998) was a major step in the

formation of a common EU asylum policy. The concept of asylum was considerably expanded

with a number of initiatives:

4 The Dublin Regulation (II) is enclosed ( enclosure 1)

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1. The area of freedom, security and justice was established

2. Schengen was implemented in EU law

3. The treaty states that the EU respects international law, MS have agreed to uphold (e.g.

the European Convention on Human Rights)

4. Asylum, migration, visa cooperation, cooperation on border control and areas concern-

ing civil law were moved to pillar one (making it supranational instead of intergovern -

mental)

5. The legislative right of initiative in the area of asylum was shared between the Com-

mission and the MS till 2005, where the Commission took over completely

6. States that the rights of 3rd country nationals must be strengthened (e.g. a common un-

derstanding of the Genevé convention’s 1st art., which country bears the responsibility

for processing asylum applications, minimum standards for reception of asylum

seekers etc.)5

Fourth, on the Vienna (1998) and Tampere (1999) summits an action plan for the first phase

of the CEAS was developed. The Haag (2004) summit produced an action plan for the second

phase. Vienna and Tampere were closely linked to the features of a common asylum policy

laid out in Amsterdam. Haag focused on handling some of the problems arising from the first

phase of CEAS and filling in the gaps on the more practical side such as evaluation of the first

phase and implementation of therein agreed initiatives, Vevstad (2006, 90-1)) points to the

fact that Vienna and Tampere are much more idealistic than Haag in the sense that they aim at

striking a balance between the rights of asylum seekers and the control of influx, whereas

Haag is mainly focused on control issues. Finally, the Nice Treaty (signed 2001), also called

“the Amsterdam leftovers”, moved a few more areas from pillar three to one (illegal

immigration and areas concerning freedom of movement) (Vevstad, 2006).

5 These rights are realised in the CEAS

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2.2 DublinFrom Convention to Regulation

The Dublin Regulation (2003) is a revision of the Dublin Convention (1997) (Dublin II,

preface, paragraph 5)6, reaffirming the principles from Dublin I and amending and specifying

it further based on lessons learned from implementing Dublin I. The regulation lays out rules

for determining who are to be granted status as asylum seeker, which MS is responsible for

processing the asylum application based on a hierarchy of criteria and how the process of

taking back and taking charge of an asylum seeker after allocation of responsibility is to be

carried out. In the following, an account of the most important elements of Dublin II in terms

of the ECRH ruling will be given The areas of main concern will therefore be country of first

asylum, safe countries, non-refoulement and options for review and appeal. Any reference to

paragraphs and articles are references to paragraphs and articles in the Dublin Regulation,

which can be found in the enclosures.

2.2.1 Dublin and SchengenThe purpose of Dublin II as stated in the preface:

A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community. (§1)

The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without affecting the responsibility criteria laid down in this Regulation, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals. (§2)

These paragraphs state that the EU honours its obligations to adhere to international law and

the protection of refugees, which is also clearly stated in §12 of the preface, and §2 above

specifies in detail that Dublin II is based on the Geneva Convention of 1951 and the

amendments of 1967. Furthermore, the purpose of the regulation is assigned to establishing

CEAS as agreed at the Tampere meeting cf. §2 above. §1 sets out the objective of establishing

an area of freedom, security and justice, which is further elaborated in §8 below to include the

6 See enclosure 1.

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creation of an area without internal borders and the need for a common asylum policy to

achieve that goal. It makes clear the connection to the SEM and Schengen, so Dublin II, and

consequently also CEAS, can be seen as a clear functional spillover from the SEM and the free

movement of people to Justice and Home Affairs (JHA). Dublin I makes the link to the

Schengen agreement even clear, since it was formulated concurrently with Schengen7 and is

clearly a functional spillover, as it is necessary for full functionality of the free area of

movement for EU citizens within the EU borders. Below is the wording from Dublin II ‘s §8

concerning the issue.

The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the Treaty establishing the European Community and the establishment of Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity. (§8, preface)

One of the main goals of Dublin II is to sets up rules on how responsibility for an asylum

seeker is determined. For that purpose, a hierarchy to be followed when responsibility is

decided is included in the regulation. Family unification constitutes the first part of the

hierarchy (art. 5-8) and issued visas and residence permits follow in art. 9. Art. 10 further

underlining the link to Schengen by confronting the issue of illegal border crossing:

Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place. (Art. 10.1)

This article assigns responsibility to the MS that does not live up to its obligation to protect

the Union’s external border by allowing a 3rd country national to cross illegally. The MS is

responsible for the national for 12 months after the illegal crossing. Vevstad (2006, 175)

comments that the fixing of the time limit of 12 months in this article was one of the most

difficult things for the MS to reach agreement on. According to LI, this can be explained due to

the fact that MS have different national preferences. All the MS have an overall interest in

7 Schengen was signed in 1990 like Dublin I and was implemented in 1995, whereas Dublin I was implemented in 1997 (Vevstad,2006, 161, footnote 337)

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rules in this area to ensure the functionality of Schengen and they chose to do that through

Dublin, making Dublin an example of institutional choice. In this case the specific formulation

of national preference is very much dependant on the geographical position and the resulting

difference in pressure on domestic borders and the economic burden that follows. The fixing

of the time period was an outcome of substantive bargaining. The southern countries (Greece

and Italy especially) had a great interest in minimising the amount of time and the Northern

MS preferred a higher time limit. The suggestions were 6 and 18 months and they agreed on

12 (Vevstad, 2006). Art. 13 below can be seen as a result of the same process of substantive

bargaining.

Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it. (Art. 13)

According to LI, countries with the most power have the bigger influence on the outcome, and

this creates a situation referred to in LI as ‘asymmetrical interdependence’. Article 13

benefits the majority of MS except Greece and Italy, thus creating an asymmetrical

relationship of interests, resulting in Greece and Italy complying with the interests of the rest

of the MS. Thus it is Greece’s and Italy’s national interest (national preference) to comply in

order to avoid creating a conflict that could be harmful for future cooperation within EU

context. Furthermore, complying to meet the interest of the rest of the MS is the only possible

option for minority countries in a situation of ‘asymmetrical interdependence’, as not

reaching an agreement at all would be more harmful to them than reaching an agreement

with bad conditions.

2.2.2 First Country of AsylumArt. 13 is a constitutive part of the Dublin Regulation along with art. 10, as they constitute the

principle of first country of asylum.

The concept of first country of asylum allows MS to return asylum seekers to the first country

of entry, if the responsibility for the asylum seekers cannot be allocated based on any of the

other criteria within the Dublin II hierarchy. Article 13 has, since the regulation came into

force in September 2003, been referred to as “Dublin II” colloquially, because it has been

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extremely utilised in determining responsibility (Vogel, 2011). Hence, in practice the MS into

which the person first arrived from outside the EU will most often be responsible for

determining any claim for asylum, at least for 12 months. After that time responsibility lies

with the last member state where the asylum seeker has lived continuously for a period of at

least five months.

2.2.3 Effective RemedyRules for taking back, taking charge and effective remedy

Dublin II lays out rules for taking charge of and taking back the asylum seeker, when

responsibility has been determined. The taking charge rule applies when the asylum seeker

has not applied for asylum in any other MS. These could be cases where the asylum seeker

does not apply for asylum in the second country he enters or does not get registered 8. In cases

such as these it is almost impossible for the second country to determine how long the asylum

seeker has been staying in the country, and therefore there is no time limit determining when

the asylum seeker can no longer be submitted for return contrary to the concept of taking

back.

The taking back rule applies when the asylum seeker has applied for asylum in one MS before

travelling to another MS. The rule applies in cases where the asylum case is still being

processed in the first country, and in cases where asylum has been denied in the first country.

A no to asylum in one MS means no in all MS and the asylum seeker can thus not submit a new

application in the second country and he his application retried. The reasoning behind this is

that all cases should be processed in one country and one country alone. The countries that

are requested to take back an asylum seeker should respond as quickly as possible and within

one month at the latest (art. 17). The practical side of the taking back itself is also laid out in

article 19.1-2.

1. Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State. (art. 19)

8 In Eurodac, for instance

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2. The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain details of the time limit for carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer unless the courts or competent bodies so decide on a case-by-case basis if national legislation allows for this. (art. 19)

The article states clearly that the country requesting to send the asylum seeker back must

notify the asylum seeker that the country taking him back has agreed to do so. The purpose of

subsection 2 of article 19 is to ensure that the asylum seeker has time to understand the

processing of his case and the judgment to send him back and to allow him to file a complaint

over set judgment, in other words securing the right of effective remedy. The obligation to

notify is especially relevant in the concept of first country of asylum and is mentioned in art.

20.1.e below as well as art. 19.2. Moreover, the rationalisation behind the decision to send

back must be explained to the asylum seeker in a language that he can be expected to

understand. Another paramount element of taking back and taking charge is that the transfer

of the asylum seeker must happen as quickly as possible (art.19.3).

The requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based. It shall contain details of the time limit on carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this. If necessary, the asylumseeker shall be supplied by the requesting Member State with a laissez-passer of the design adopted in accordance with the procedure referred to in Article 27(2). The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylumseeker or of the fact that he did not appear within the set time limit. (art. 20.1.e)

The first country of asylum rule and the establishment of it, can be seen as another example of

Dublin II being a functional spillover from Schengen, as it specifically deals with the issue of

securing the area of free movement by preventing asylum seekers from the option of asylum

shopping and the pressure it would put on the entire asylum system and the area of free

movement.

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2.2.4 Non-refoulement and Safe CountriesFirst country of asylum is built on the idea of non-refoulement. Going back to §2 above, it

states that because all MS respect the principle of non-refoulement they are to be considered

safe countries. The definition of non-refoulement is as follows:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (Art. 33 of the 1951 UN Convention and Protocol relating to the Status of Refugees)

That means that a MS can return an asylum seeker to any MS after determining responsibility

based on the criteria set out in Dublin II. Dublin II can therefore be argued to be built on

mutual recognition of rulings on applications and mutual trust of all MS being safe countries

adhering to international law. But this is not unproblematic according to Vevstad; “As a

general rule there is reason to advise caution in dubbing any country as “safe” for all asylum

seekers at all times” (2006, 197 – quotation marks around safe in original). In other words,

Vevstad questions the assumption that all countries are considered safe by default.

2.3 Directives The Dublin Regulation is surrounded by three directives that were formulated and agreed

upon in order to lay down more specific rules for implementing the regulation. Below is an

account of the most noticeable elements of the Qualifications, Reception and Procedures

Directives.

2.3.1 The Qualification Directive (Van Krieken, 2004)This directive is an implementation of the articulation in Amsterdam of a need for securing

the rights of asylum seekers through common minimum standards for obtaining asylum. The

directive seeks to ensure that the MS have a common understanding of what constitutes a

refugee, to implement common standards to prevent asylum shopping and to ensure that

people in need of protection receives it. In Vevstad’s opinion (2006, 110), these objectives

make the directive the foundation of CEAS.

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There are a few interesting points to draw out. First, the definition of a refugee under the

directive is an adoption of the Geneva Convention’s definition. It is stated in the preface §2 of

the directive that the MS adhere to that definition and the principle of non-refoulement, which

is also specifically mentioned in article 219. Second, article 3 states that MS are free to go

above and beyond the minimum standards established in the directive. Third, there are

inconsistencies in regards to family reunification between this directive, the Reception

Directive and Dublin II, because the definition of family members differs between the three.

The Qualifications Directive does not define what constitutes family members very clearly,

but it does state that close relatives, who lived with the family at the time of leaving the

country, can be considered a family member, if the MS wishes to do so (art. 23) . The Dublin

Regulation narrowly defines family members as the spouse or unmarried partner from a

stabile relationship (if MS national law recognises that); minor, unmarried, dependent

children and the parents or guardian of an asylum seeker who is a minor and unmarried.

These rules are only applicable to family relations already established in the country of origin

(art. 2.i). The Reception Directive has the same definition as Dublin II, except for the clause

concerning an applicant who is a minor, unmarried child (art. 2.d).

2.3.2 The Reception Directive (Van Krieken, 2004)This directive sets the standards for how asylum seekers are to be treated, once they have

been found to live up to the criteria in the Qualification Directive for being regarded an

asylum seeker. The main elements of the directive are the following. First, the purpose is once

again to prevent asylum shopping by establishing common standards. Second, MS are

required to provide certain things to the asylum seeker. They should provide housing, a

decent living standard not referring anyone to live in poverty and medical assistance. Also,

they are required to ensure family unity as far as possible and provide the asylum seeker with

adequate information about his/her case and documentation thereof. Third, as in the

Qualification Directive, it is allowed for MS to adopt higher standards than the ones

prescribed in the directive. Fourth, it only applies to convention refugees.

9 From the Geneve Convention’s art. 33 as cited above

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2.3.3 The Procedures Directive (Van Krieken, 2004)The purpose of the Procedures Directive is to establish minimum standards on procedures in

MS for granting and withdrawing refugee status. The negotiation of the Procedures Directive

proved to be upmost difficult and it is a result of many compromises between the MS. The

final version of the Procedures Directive was finally passed in December 2005 and is first and

foremost a directive that has been created by the MS in the Council. The Procedures Directive

encompasses regulations on effective remedy, minimum standards for the processing of

asylum, safe 3rd and home countries and the first country of asylum principle. Moreover, the

Procedures Directive’s purpose is also to strengthen the prevention of asylum shopping and

illegitimate asylum seekers. Vevstad (2006, 206) believes the many country specific

considerations and exceptions means that the directive does not live up to its goal of

harmonising the area. She also argues that the procedure therefore leaves it up to the MS to

secure the rights of asylum seekers based on international law (2006, 205-6).

2.4 Recapitulating the Main Points of EU Asylum Policy A common EU asylum policy was under preparation for a while before CEAS actually emerged.

Facing the problem of a mass influx of refugees in the 80s and 90s, the MS found themselves

needing a common solution to solve what was clearly a transnational problem. That led to

initial steps in the Maastricht treaty and the development of Dublin I in the early 90s. Dublin I

entered into force in 1997 and was followed by the Vienna and Tampere meetings in 1998

and 1999, where the specifications of an action plan for the first phase of CEAS were

formulated on the basis of the frame laid out by the treaty of Amsterdam in 1998. The first

phase of CEAS spanned the years of 1999-2004 and the second phase 2005-2010 with the

Haag summit in 2004 laying out the action plan for the latter phase. Dublin II was signed and

in effect by 2003 and is the current legal foundation of CEAS. As mentioned above, CEAS is a

clear functional spillover from the SEM and Schengen to Justice and Home Affairs (JHA), but

looking at the broader picture, it can also be argued that it is a political spillover, because as

mentioned above, it was clearly a transnational problem, and domestic governmental elites

had higher expectations to a common EU solution than national ones, seeing as the vast

majority of MS did not choose or attempt to solve the problem at the domestic level10. The

10 Denmark is the only MS not to be part of Dublin II. It is part of Dublin I, though.

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important elements from the Dublin Regulation in regard to the ECHR ruling are the notion of

country of first asylum, safe countries, non-refoulement and options for review and appeal as

explained above. The analysis of the Dublin Regulation itself and the preliminary

developments accounted for in the historic overview led Neofunctionalism to identify the link

between SEM, Schengen and JHA via asylum policy as a functional spillover, but at the same

time arguing that there are also elements of political spillover in the process of developing

CEAS. LI gave insights in the complex processes of national preference generating and

substantive bargaining as part of the development of Dublin II.

2.5 Analysing the Broader DevelopmentsThere are some interesting observations to be made based on the process of developing CEAS

and they will be accounted for and analysed in the following.

2.5.1 The Boomerang TrendBased on the development of CEAS, it can be argued that this particular area has gone from

intergovernmental decision-making to supranational decision-making and recently

backtracking to intergovernmental in a boomerang trend. There are a number of arguments

to support this claim, especially if one looks at the treaties, because they specify the decision-

making processes used for asylum policy. First, Maastricht placed asylum policy in the third

pillar; an intergovernmental pillar, and discussions of the policy took place in Council working

groups, also an intergovernmental forum. Second, in Amsterdam there was a move towards

more supranational decision-making on two levels. Firstly, a range of issues was moved to the

community pillar, pillar one, subjecting them to the community method. Secondly, the

Commission, a supranational institution, gained sole right of initiative in the area in 2005

after a 5-year transitional period of sharing it with the MS. Both developments testify to a

general movement towards supranational decision-making. In addition, the directives

exemplify that intergovernmental decision-making is coming back. They are all adopted from

2003-05 and therefore represent some of the later developments. The reason they can be

argued to show the intergovernmental turn is that they do not always agree with the wording

of Dublin II on different issues (such as family reunification) and they have adopted a fairly

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restrictive interpretation of Dublin II (Vevstad, 2006). Also, the Procedures Directive in

particular is characterised by country specific considerations, which in fact has watered down

the directive to a point where Vevstad (2006, 205-6) does not think it manages to harmonise

the area at all. Furthermore, the Vienna, Tampere and Haag summits also have a story to tell

of the latest developments in decision-making processes. As mentioned earlier, Tampere and

Vienna were focussed on striking a balance between securing refugee rights and controlling

refugee influx. Haag was much more concerned with the control issue than anything else. This

bears witness of the changing currents in the sense that MS are now trying to take back some

of the power they had given over to the supranational level. Finally, there is also a case to be

made concerning the Commission’s role in terms of illustrating the boomerang trend. The

Commission did not have much influence on the first steps in creating CEAS. As mentioned

above, discussions took place in Council working groups under Maastricht. That changed with

Amsterdam and the transfer of some of the areas concerning asylum policy to the community

pillar and finally the sole right of initiative in the area. That made it possible for the

Commission to facilitate what Neofunctionalism terms cultivated spillover. But as the MS

slowly began focussing more on control issues, some of the conditions Niemann and Schmitter

(2009) deem necessary for cultivated spillover to take place, disappeared (e.g. internal

cohesion between MS and the Commission capacity to shape the agenda).

Neo-neofunctionalism would define the above development as one of the inevitable crises that

naturally occur as part of the integration process (Schmitter, 2004). The MS have a choice of

spillover, spill-back, spill-around or build-up. Asylum policy has been an example of spillover

so far, but there might be reason to believe that it could move in the direction of spill-back

based on the latest developments with France and Italy calling for the dismantling of

Schengen and a re-erection of national borders as a means to control refugee influx

(Euronews, 2011). On the other hand, muddle-about may also be an option based on previous

EU experience. EU had a long period of muddling-about from the first years of its creation to

the signing of the Single European Act (SEA) in 1986 (Neugent, 2006). Further elaboration of

the possibilities for spillover or spill-back will be in taken up in more detail in relation to the

discussion of the ECHR ruling.

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2.5.2 EU Asylum Policy From an LI perspectiveIn the following, LI theory will be used to analyse the broader developments of EU asylum

policy by using Moravcsik’s (2009) three-stage theory.

National Preferences

The National preferences of how a common European asylum policy should be has shifted

from being more ideological and focusing on the rights of refuges, as it was the case in the

Dublin Convention of 1990, to be more concerned with economical issues of avoiding asylum

shopping and the economical burden of mass migration. The rapid growing number of asylum

seekers and the open internal borders of the EU that came with Schengen, shifted the national

preferences of the MS from being concerned with doing the right thing and taking

responsibility for the many asylum seekers to safeguarding national interests.

LI argues that geopolitical interests are more important in determining national preferences

than ideology. Therefore, it is credible that there is a difference in preference from North to

South, because southern MS are the first countries the refugees arrive in, and based on the

Dublin Regulation that means they are responsible. For the northern MS it is convenient to

have such an arrangement, as it means the southern states carry most of the burden of

asylum. It exemplifies the above claim that the development of asylum policy has gone from

intergovernmental to supranational to intergovernmental, especially with the latest

development of France and Italy voicing a request for dismantling Schengen and re-erecting

national borders11

Economic interests are even more important, according to Moravcsik (2009). The financial

crisis has had a major influence on domestic social groups, and the shift in preferences in

regard to asylum seekers has been that it is an expense society is not willing to uphold in a

situation of scarce resources. It is seen as a threat to the welfare of MS populations. Therefore,

the Northern MS are keen on maintaining status quo and the application of first country of

asylum, whereas the southern MS are becoming increasingly set on burden sharing. Again, it

supports the above claim of asylum policy development, since it illustrates the move from

focus being on refugee rights to being on control issues.

11

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Substantive Bargaining

Substantive bargaining happens on the basis of national preferences and is dependant upon

the relative bargaining power of the MS. When bargaining in the frame of asylum policy in the

EU, the relationship of asymmetrical interdependence can be defined as follows; The northern

MS can be argued to have the most bargaining power, because they include some of the

richest MS and because they are larger in number than the southern MS. These are two

conditions that are important for the outcome of the process. Furthermore, they are the group

of countries that need an agreement in this area the least. According to LI, that gives them

leverage to manipulate the agreement to their advantage and the southern MS are so

dependant on an agreement that they would rather accept an unfavourable one than risk not

having an agreement. The difficulty of reaching agreement, especially in the later years of

developing the legal frame for CEAS (Vevstad, 2006, 205) once again reflects the

developments mentioned above, but also shows the perplexities of substantive bargaining.

The Procedures Directive exemplifies it very well. The then commissioner of JHA was

apologetic of the end result, because it was much less ambitious than what the Commission

would have wanted (Vevstad, 2006, 205). Reaching the final agreement on the directive

turned out to be a long process of sending proposals back and forth between the Council and

the Commission, which finally led to a directive full of national special considerations and

most articles expressing the lowest common denominator, in Vevstad’s opinion leaving it up

to the individual MS to uphold international law and secure the legal rights of refugees (2006,

205-6).

Institutional choice

Based on the agreement reached through substantive bargaining, sovereignty is transferred

to a supranational institution to oversee that it is carried out as intended. Moravcsik (2009)

believes that governments effectively remove issues from varying influence of domestic

politics and decentralised intergovernmental control by doing so. It can be argued that due to

increasing pressure from domestic societal actors, as mentioned above under national

preferences, MS governments have been forced to re-direct this process and return to more

intergovernmental methods, hence the claim of the boomerang trend above.

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Summing up, the theories all find indications in the development of CEAS that underline the

hypothesis of a boomerang trend in decision-making, whether it is Neofunctionalism and Neo-

neofunctionalism in their focus on spillover and decision cycles or it is LI and the focus on

national preferences, substantive bargaining and institutional choice. They all point in the

direction of a boomerang trend.

3 The ECHR Ruling

On the basis of the above account and analysis of EU asylum policy, focus will now be on the

ECHR ruling and a discussion of its implications. It will begin with an explanation of the

situation in Greece that led to the ECHR ruling followed by an account of the ruling.

Subsequently, the discussion will follow.

3.1 Elaboration on the Circumstances in Greece that led to the ECHR RulingThe ECHR based its ruling on a number of questionable conditions for refugees in Greece. One

point of concern was the inhumane and degrading treatment Greece subjects refugees to. In

recent years, these conditions have been devoted a great deal of attention by governmental

and non-governmental organisations alike.

The Commission addressed the problem at the EU courts and on the 19th April 2007 in the

Commission v. Greece, case C-72/06, the court found that Greece had not lived up to its

responsibility of implementing the Reception Directive within the time limit.

Human Rights Watch (HRW) published a report, Stuck in a Revolving Door, in November 2008.

The HRW conducted research in Greece from May 22 to June 5, 2008 and in Turkey from June

5 to June 14, 2008, and the report proves through interviews with migrants, refugees, asylum

seekers, police chiefs and detention guards and observations of facilities that the conditions

for the detained are very criticisable and not in keeping with international law (ECHR,2011).

The report reveals that the vast majority of refugees are kept in detention facilities despite the

reception directive’s requirement that it should only be used as a last measure12.

Furthermore, the conditions under which they are kept constitute inhumane and degrading

12 Art. 18

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treatment, as they are kept in severely overcrowded facilities with very poor sanitation and

restricted access to legal and medical assistance. There was also evidence of missing or

misleading information on the asylum procedure. In addition, the report briefly comments on

the role of the poor state of Greek economy13 and how difficult or maybe even impossible it

makes it for Greece to deal with the large number of refugees crossing its borders every day.

As of August 2010, Greece had 52,000 pending asylum application cases14 and that does not

include the vast number that has not been registered as asylum seekers yet, due to the

incapability of Greek authorities to keep up with the demand15. Being a main point of entry for

asylum seekers, Greece is also a main recipient of requests for taking back and taking charge

under the Dublin Regulation, which further adds to the burden16.

The United Nations (UN) has also closely monitored the situation in Greece and has published

a range of positions, papers and reports on the subject17. The report, Observations on Greece as

a Country of Asylum, published by the UN Refugee Agency (UNHCR) in December 2009, gives a

thorough examination of the situation for asylum seekers in Greece and reaches the

conclusion that it keeps to its previous recommendations of not returning any refugees to

Greece, because of the poor conditions asylum seekers are kept under and the many

insufficiencies in the asylum procedure as such, very much in keeping with the findings from

the HRW report mentioned above. The European Council of Refugees and Exiles have also

raised its concerns18 and brings up similar points to the ones made by the UN and HRW. All in

all, Greece can surely be classified as not living up to the requirements for safe countries.

3.2 CASE OF M.S.S. v. BELGIUM AND GREECE 21st OF JANUARY 2011In the following an account of the Case of M.S.S. v. Belgium and Greece will be given.

13 See enclosure 2 – OECD key short term indicators14 UN News Services, 20 October 2010, UN expert urges EU to help ‘overwhelmed’ Greece deal with irregular migrants( Nowak,2010).15 UN report on Greece (UNCHR, 2009).16 See enclosure 3 and 4 – ingoing and outgoing Dublin Requests17 www.UNHCR.org 18 www.ecre.org

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http://www.ecre.org/

http://www.UNHCR.org/



On the 21st of January 2011 the European Human Court of Human Rights (ECHR) found that

Belgian authorities had violated the rights of asylum seeker M.S.S, an Afghan national, as

stated in the European Convention on Human Rights19, by sending him to Greece using the

Dublin II Regulation. In effect this ruling means that asylum seekers cannot be returned to

Greece under the Dublin Regulation (MRN, 2011).

The Afghan male was sent back to Greece using the Dublin Regulation’s first country of

asylum principle, which enables MS to send asylum seekers back to the country where they

first applied for asylum (MRN, 2011). The Dublin Regulation assumes that the country to

which the asylum seeker is to be retuned is able to safeguard the individual’s human rights

and will determine the application for refugee status in accordance with the standards of

international law. The lawyers of the Afghan male, M.S.S, argued before the ECHR that asylum

procedures in Greece were in such a state of disarray that it could not be presumed that the

requirements of international law with respect to refugees were being met (ECHR, 2011).

ECHR ruled as follows on the 21st of January 2011:

Belgian authorities should not have expelled asylum seeker to Greece

In the Grand Chamber judgment in the case M.S.S. v. Belgium and Greece (application no.

30696/09), which is final, the European Court of Human Rights held, by a majority, that there

had been:

A violation of Article 3 (prohibition of inhuman or degrading treatment or

punishment) of the European Convention on Human Rights by Greece both because of

the applicant’s detention conditions and because of his living conditions in Greece;

A violation of Article 13 (right to an effective remedy) taken together with Article 3 by

Greece because of the deficiencies in the asylum procedure followed in the applicant’s

case;

19 The EU MS have an obligation to adhere to this convention due to their membership of the Council of Europe, since all members are signatories and the Dublin Regulation states in §12 of the preface that MS are obligated to adhere to the international law to which they are party

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A violation of Article 3 by Belgium both because of having exposed the applicant to

risks linked to the deficiencies in the asylum procedure in Greece and because of

having exposed him to detention and living conditions in Greece that were in breach of

Article 3;

A violation of Article 13 taken together with Article 3 by Belgium because of the lack of

an effective remedy against the applicant’s expulsion order (MRN, 2011).

European Convention on Human Rights EU Charter of Fundamental RightsEquivalent

Article 3Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Article 4 Prohibition of torture and inhuman or degrading treatment or punishment. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 13Right to an effective remedy. Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity

Article 47Right to an effective remedy and to a fair trial. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice

As mentioned above, the ECHR found that Belgium and Greece had violated article 3 and 13 of

the European Convention on Human Rights, which deals with the prohibition of inhumane

and degrading treatment or punishment and the right to an effective remedy. Greece was

found in violation of the convention due to detention conditions and deficits in Greece’s

asylum procedure, the lack of an effective remedy being one of them. In the case of Belgium

the country’s violation of the convention was that it had exposed M.S.S, the Afghan male, to

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these inhuman conditions (ECHR, 2011). Moreover, the court also found that Belgium had

violated the convention by denying the applicant an effective remedy against his expulsion

order. Besides this ruling the ECHR has more than 960 cases pending that relate to the Dublin

II regulation, against Netherlands, Finland, Belgium, the United Kingdom and France. Most of

the cases concern expulsion to Greece. Additionally, the ECHR has ordered the temporary

suspension of transfers in 531 cases (Vogel, 2011).

3.3 DiscussionNow, a discussion of the implications of the ECHR ruling for EU asylum policy will be taken up.

This section will commence with an assessment and analysis of Home Affairs Commissioner

Cecilia Malmström’s public statement on the ECHR ruling. Next, the focus of the discussion

will shift to possible future implications on EU asylum policy. First, LI theory will be used to

discuss the consequences of the EU not abiding to international law and the battle between

economic and human rights values. Second, Neo-neofunctionalism will be applied for

reflections on the boomerang trend and the second hypothesis and what it can possibly say

about the future of EU asylum policy. Finally, a conclusion to the findings of the thesis will be

offered and consequently the thesis statement will be answered.

3.3.1 Statement of Cecilia Malmström, European Commissioner for Home Affairs

In the following an assessment and analysis of the Commissioner’s response to the ECHR

ruling will be given to show the response of the EU to the ruling.

Commissioner for Home Affairs, Cecilia Malmström, spoke on the day of the verdict saying:

“Today’s ruling by the European Court of Human Rights (ECHR) clearly shows the EU’s need to

urgently establish a Common European Asylum System and to support Member States in meeting

their obligations to provide adequate international protection. The EU’s commitment to continue

its humanitarian tradition in providing shelter to those in need of international protection can

only be fulfilled if all its Member States contribute and take their responsibilities.” (IEWY, 2011)

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Malmström addresses the heart of the conflict. In order for a Common European Asylum

System to work at all, MS must live up to their obligations, otherwise it is simply not possible.

But the likelihood of all MS contributing and taking their responsibility is doubtful, especially

because the situation in Greece has escalated over the past 5 years. Already back in 2006 the

European Commission asked the Court of Justice of the European Union (CJEU) to examine

whether Greece was fulfilling its obligations concerning the reception of refugees (case C-

72/06). Subsequently, the MS have been aware of the problematic situation in Greece for

years, in particular, because it has also been subject to substantive media coverage20.

However, there have been no signs of the MS stepping up and taking action. Thus the calling

upon MS to take action is most likely going to be without any real effect. LI theory of national

preference along with substantive bargaining explains why it is so hard for the MS to agree on

burden sharing and taking responsibility. MS are not interested in taking responsibility for the

mass influx of asylum seekers, because it is an economic burden, and it seems as though the

MS are doing their upmost to avoid dealing with the Greece crisis.

“I invite Greece to continue working to enhance the humanitarian situation of migrants and

asylum-seekers. The country has committed to carrying out an ambitious reform of its asylum

system and the European Commission is closely involved in the implementation of this crucial

reform. The European Commission is aware of the efforts already put in place by the Greek

authorities and will continue to support Greece’s actions to manage the unprecedented flows of

migrants and asylum seekers”. (IEWY, 2011)

Malmström mentions in the above that the Commission has continuously supported Greece’s

commitment to manage the flow of migrants and asylum seekers. But as it is stated in the

ECHR ruling, the conditions in Greece are so severe that it can no longer be assumed that

Greece is capable of handling asylum seekers at all. Judge Rozakis (ECHR) supports the claim

that under the current circumstances the Greek authorities cannot deal with the present flow

of asylum seekers. Moreover, Rozaki states that it is evident that the EU’s asylum policy

including Dublin II does not reflect the present realities, or do justice to the disproportionate

burden that falls on the Greek immigration authorities (ECHR, 2011, 91). Based on the above

20 UN, ECRE and HRW as mentioned above in the section on the Situation in Greece

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it can be argued that Commissioner Malmtröm’s perception of the situation in Greece is not in

line with the wording of the ECHR ruling, and the fact that the Greek asylum reform has been

postponed to the end of 2011 at the earliest (HRM, 2010) further underlines that the

Commission’s support has not made much of a difference and the UN still expresses great

concern with the situation (UNCHR, 2010). In the light of the boomerang trend discussed

above and the effects it has had on the Commissions ability to foster integration, it seems

unlikely that it will be able to make a big influence on the MS here.

“I invite the Member States and the European Parliament to work for a balanced compromise on

the Commission’s proposal to amend the current Dublin II Regulation. In this framework, an

emergency mechanism for suspending transfers in cases of particular pressure on the asylum

system would contribute to build more trust and genuine support between the Dublin partners.”

(IEWY Home Politics, 2011)

In the last part of Malmström’s response to the ECHR ruling, she urges the MS and the EU to

work for a balanced compromise. As we argued earlier, the substantive bargaining process

under the negotiation of the Procedures Directive proved very difficult. From a LI point of

view it can be argued that Malström’s calling for a balanced compromise can be hard to

achieve, because of the asymmetrical interdependence between the MS. As argued in the LI

analysis of the Procedures Directive, the northern MS’s bargaining power is still arguably

stronger than the southern MS’s. But perhaps the southern MS, especially Greece, are no

longer so inclined to reach an agreement, because the situation since the forming of Dublin II

has worsened to such a degree that Greece is now incapable of handling the migration flow.

3.3.2 Capabilities and Expectations?As a result of the ECHR ruling it can no longer be assumed that EU member states respect the

fundamental rights of international law, which are encompassed in the preface to the Dublin

Regulation §12 and §2. This means that the MS can no longer be assumed to be safe

countries, as they do not necessarily adhere to the principle of non-refoulement and other

rights, e.g. access to an effective remedy, as is the case with Greece.

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But what happens when the EU is no longer abiding by international law? If the EU fails to

rectify the situation and keeps undermining international law it risks damaging its reputation

severely. It is interesting in this case that the EU has marketed itself as an actor within the

scope of soft power (Smith, 2004). When the EU is not abiding by international law it

compromises the Union’s ability to use soft power tools in the international arena. This

quotation by Willy Brandt is interesting to consider in that connection: “When Europeans

began to recognise themselves and to extend the institutional reach of collective European

diplomacy into new and potentially sensitive areas, in doing so, they inevitably came up against

the ‘capability-expectations gap’’, (Hill, 1998). The ECHR ruling and the failure to abide by

international law vs. the EU’s role as a soft power actor can be seen as capability-expectations

gap. Because the EU on the one hand is voicing the importance to live up to democratic values

and international law and on the other hand the EU is failing to abide by international law

itself. By this Janus-faced behaviour the EU is an obvious target of critique. The EU puts itself

in an unfavourable situation, when it fails to live up to human rights and international law,

especially because it appears to be speaking with two voices. One being a voice, preaching the

importance of abiding by international law, the importance of democratic values and putting

humans rights first. The other voice in this instance can be characterised as a “silent voice”, a

voice that is speaking through the actions of the EU, contradicting the first voice. It is

interesting to note that the EU applies accepting the Geneva Convention as a condition, when

engaging in new trade agreements with 3rd countries. This particular aspect of the EU’s

conditionality principle becomes self-contradictory, when the EU fails to follow its own

pronouncements (Smith, 1997). Smith (1997) argues that the perceived inconsistency in the

EU’s application of conditionality could diminish its influence as argued above. In other

words, damaging its reputation by not adhering to international law and the contradictions it

brings with it proves to be damaging to the EU’s influence internationally.

3.3.4 Economic vs. Human Rights InterestsWhen predicting a future development of EU Asylum Policy, on the basis of the above, one

obvious question emerges, will economic interests or human rights values win? LI theory

points to a possible answer to the above question. Moravcsik (2009, 70) argues that European

integration has mainly reflected concrete economic interests rather than European ideals.

This suggests that the answer lies in the first scenario, economic interest.

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The preference for economic interests can help explain why countries, in this case Belgium,

are sending back asylum seekers to Greece all the while knowing that Greece is not living up

to the obligations laid out in the Dublin Regulation. It can be presumed, that Belgium cannot

have overlooked the situation in Greece as it has been subject to several reports from NGOs

e.g. Human Rights Watch report of 2008: “Stuck in a Revolving Door”. In addition, in April of

2007 (case C-72/06) the CJEC found that Greece failed to fulfil its obligation under the

Reception Directive (ECHR, 2011, 84). It can be argued that Belgium chose to overlook the

above, because it is beneficial for it to keep sending asylum seekers back to Greece, since they

would otherwise be granted asylum in Belgium and this can arguably prove to be a costly

affair both in terms of processing the asylum cases and maintaining a reasonable standard of

living for the asylum seekers. In accordance with LI theory, Belgium’s national preference was

then determined by economic factors, which explains why it knowingly compromised the

human rights of asylum seekers even though one can argue from an ethical point of view that

securing human rights should be prioritised instead of putting economical interests first.

The recent developments of France’s and Italy’s wish to change Schengen (Euronews, 2011) is

also in accordance with the above prediction. The EU asylum policy has long been a subject of

debate in France, where the flow of immigration has been growing rapidly in the course of the

last decade (Deubner, 2007). In the French public there has been a call for stricter

immigration laws and along with this a strong critique of the open borders that came along

with Schengen (Deubner, 2007). France, which in EU context has been a strong proponent of

further integration, is, when it comes to EU immigration and asylum policy, a proponent of

disintegration. France’s standpoint is in accordance with the above-mentioned preference for

putting economic interests first, because the mass flow of immigration creates a risk of

economic loss to the French state. Consequently, changing Schengen is a favourable solution

for France.

In sum, both the analysis of Belgium’s and France’s preferences points in the direction of

economic interest prevailing over human rights, which underlines the boomerang trend by

exemplifying a MS wish for intergovernmental decision-making.

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3.3.5 Reflections on the Boomerang TrendThe ECHR effectively establishes that Dublin II is no longer valid. As mentioned above, the

goal of the regulation is to prevent asylum shopping, but with the first country of asylum

principle being found in violation of human rights, if asylum seekers are sent back to Greece,

the foundation of the system the EU has set up for that purpose is demolished. It can be

argued that CEAS therefore collapses under the weight of the ruling, because with no option

to return an asylum seeker to the first country of entry, asylum seekers can chose any country

of their liking for their application. The full scope of this can only be understood completely in

the light of the Schengen agreement and the freedom of movement for individuals.

As stated above, the EU asylum policy was a spillover from Schengen and was needed to

secure the free movement of EU citizens. The first country of asylum principle is a

cornerstone in the protection of that right, because it helps limit freedom of movement to

citizens. Without it, asylum seekers are free to move around the EU area the same way as

citizens and that begs the question of whether the EU can keep its internal borders open at all.

France and Italy seem to believe that it is not an option in their recent suggestion to re-erect

national borders and dismantle Schengen. The consequences of dismantling Schengen would

be immense. If Schengen is dismantled, it will have grave repercussions in a great number of

policy areas, especially the SEM which is very dependent on open borders to facilitate

economic growth through the ease of moving goods between countries, keeping the EU labour

market flexible etc. If the functionality of SEM is heavily influenced or distorted, it is no longer

just a question of the foundation of CEAS crumbling, but the foundation of the entire EU

crumbling, because SEM is the centre of EU integration and is what has lead to integration in

many other policy area due to the spillover effect, if one follows the logic of neofunctionalism.

The SEM and economic cooperation has been deemed the rationale for the EU (Nugent, 2006)

and if that is threatened, the existence of the EU itself is brought into question.

With that being said, it should be noted that the dissolution of the EU is a rather unlikely

outcome. Neofunctionalism is well suited for explaining integrative outcomes, but it does not

have much to say about future developments. Neo-neofunctionalism on the other hand, offers

various alternatives. As previously argued, the most likely outcomes for CEAS will be

spillover, spill-back or muddle-about. To continue the train of thought from the above

paragraph, the option of spill-back will be dealt with first. Spill-back equals disintegration and

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is what happens when the MS decide to handle a crisis by pulling away from regional

cooperation and move decision-making back on the domestic level. If that is the solution, the

MS choose in the asylum policy decision cycle they are in, the asylum area will experience less

cooperation than it has so far. Whether this will have an effect on Schengen or not is difficult

for neo-neofunctionalism to predict, but Schmitter (2004) does argue that integration and

disintegration can happen simultaneously in different policy areas, making it possible for

Schengen not to be affected. Though, it is a very interdependent area, so it can be hard to

envisage how Schengen would look without CEAS. A possible solution could be further

integration and a “new” spillover from Schengen leading to a reformation of CEAS. In that

scenario one could imagine that the MS reach a compromise that will respond to the concerns

of southern MS like Greece on the pressures of the massive influx of refugees and their

request for burden sharing by transferring even more sovereignty in the area to the EU. That

could be done through the EU building and running refugee reception centres in the most

encumbered southern countries and making the decisions on applications and distribution of

approved asylum seekers to all the MS. That would be a large step forward in terms of

integration, but could be defended on the grounds that the Lisbon treaty relocates all third

pillar issues to pillar one, subjecting them to supranational decision-making. Though, as

previously mentioned, the Commission does not seem to be as strong in the area of asylum as

before and might have difficulties taking the lead in this area and promote further integration

(cultivated spillover). Another, perhaps more likely version of this scenario would be that the

EU would run reception centres, but not decide on applications, only receive them and

distribute the asylum seekers to the MS based on a model agreed on in the Council. An

argument for this being a possible scenario could be that the countries in Northern Europe,

benefitting from the current arrangements of first country of asylum, would agree to it based

on a concern to protect the Schengen agreement and thereby the SEM. Also, external

pressures, which is also something Schmitter (2004) advocates as important, from countries

and organisations outside the EU to adhere to international law, could also add to the

willingness to pursue such a scenario to avoid the negative consequences of an

expectations/capability gap, as mentioned above. Muddling-about is the last option to be dealt

with and Schmitter suggests that MS can choose to do nothing and try to scrape through the

situation as best as possible with the instruments available. However, it seems like an unlikely

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outcome, as CEAS is so paramount for the functioning of Schengen. It is more likely in a

situation where the EU can have a deadlock without it affecting other areas. Schmitter (2004)

would argue that the time before the SEA was a period of muddling-about for the MS, as they

could not agree on further integration, but they were not dependant on it and the EU could

still function. Therefore, the MS will most likely choose one of two contradicting options; more

or less integration. The development of the asylum policy, the boomerang trend, points in the

direction of disintegration and MS dealing with asylum on a domestic level, but the desire to

protect Schengen and the internal market points in the opposite direction, so there are no

clear indications on what the future will bring for EU asylum policy according to neo-

Neofunctionalism. Nonetheless, it is interesting to contemplate whether the asylum crisis is

big enough to foster a move from the priming cycle level to the transforming level and thereby

change the nature of the EU. Especially in the event of further pressures being added, such as

the abolition of Schengen becoming an imminent threat or Greece completely giving up on its

asylum responsibilities, thereby forcing the other MS to come up with a strategy to deal with

it.

As mentioned above, Cecilia Malmström, Commissioner of Home Affairs, suggests an option

that would allow a limited suspension of the return of asylum seekers to a country with a

particular burden in the area. It is much less drastic than any of the above, but would give MS

the opportunity to settle their differences in the asylum area and come up with a workable

solution, while still adhering to international law. The final outcome could still be

disintegration, but it would make it possible to, first of all, avoid a total and instant collapse of

CEAS and, second of all, solve the issues in the area without it affecting Schengen, even in the

circumstance of disintegration in the area of asylum.

3.4 ConclusionThe development of CEAS happened because of a need for an asylum policy to secure full

functionality of Schengen and free movement of people under the SEM. In other words, it was

a functional spillover, though with elements of political spillover as well. Neofunctionalism

and Neo-neofunctionalism also play an important part in proving the first hypothesis:

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The development of EU asylum policy has gone from intergovernmental decision-making to

supranational and backtracked to intergovernmental decision-making – a boomerang trend

On the basis of the theory it was argued that EU asylum policy in fact has gone from

intergovernmental decision-making to supranational and back to intergovernmental. In the

initial phase of policy development under the Maastricht treaty, where the issue was placed in

pillar three and working groups under the council conducted discussions on future

development, it was clearly intergovernmental. Under Amsterdam supranational decision-

making was in the lead and culminated with the Commission gaining full right of initiative

over the policy and a range of issues being moved from pillar three to pillar one. The

directives mark a movement back towards intergovernmental decision-making, being

characterised by a restrictive interpretation of the Dublin Regulation, inconsistencies in

definitions of terms and country specific considerations in the Procedures Directive. The

Vienna, Tampere and Haag summits illustrate that same dynamic. The Commission initially

not having much influence on policy formation (Maastricht) slowly gaining more influence

(Amsterdam) only to loose it again as MS began focussing more on control issues than on

refugee rights (Tampere and Vienna to Haag) is another argument.

LI proves the hypothesis as well by showing how national preferences are determined by

economic and geopolitical interests instead of refugee rights as the consequences of the

massive influx of refugees start weighing on the MS. Substantive bargaining makes it even

more obvious through the role that asymmetrical interdependence play. There is a distinct

difference in national preference between northern and southern MS, but due to the fact that

northern MS have more bargaining power when negotiating because of their number, their

wealth and a smaller need for an agreement than the southern MS, they are able to

manipulate the agreement to their advantage. A good example is the Procedures Directive and

how it turned out with country specific considerations. The increased pressure from domestic

societal groups as they realized the full consequences of the large amount of refugees coming

to the EU marks a move back to intergovernmental decision-making, according to institutional

choice.

In short, all the theories point in the direction of a boomerang trend, proving the first

hypothesis.

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The second hypothesis is addressed in the discussion:

Based on the above hypothesis being true, progress in EU asylum policy will come to a halt and

disintegration of the area is a likely future outcome

An assessment of the consequences of not adhering to international law, as was made clear in

the ECHR ruling, shows that it will most likely affect the EU’s influence in the international

arena, because the expectations-capabilities gap that it creates damages the EU’s reputation

and credibility with the mismatch between actions and stated objective. Speaking with two

voices does not empower the EU internationally, when it applies adhering to the Geneva

Convention as a condition for 3rd country relations without living up to the Convention itself.

The consequences of this dilemma might bring the MS to work for a solution of the asylum

crisis to re-establish its reputation as a soft power actor.

However, LI also suggests an option of the MS continuing their move towards

intergovernmental decision-making. Looking at Belgium’s choice of sending asylum seekers to

Greece despite its knowledge of the conditions there, indicates a preference for economic

interests. The same can be argued when it comes to France’s recent suggestion of dismantling

Schengen. Again, economic interests are more important than securing refugee rights. These

trends point towards disintegration of EU asylum policy.

Commissioner Cecilia Malmström’s response to the ECHR ruling further underlines the

diminishing role of the Commission as claimed by the boomerang trend. The final part of the

discussion contemplates whether the asylum crisis might eventually lead to a dissolution of

the EU, but it reaches the conclusion that it is rather unlikely, even when taking the

boomerang trend into consideration. Subsequently, it reflects on different possible outcomes

for the asylum policy, spillover, spill-back and muddle-about. Muddle-about and

disintegration are found to be improbable because of the importance asylum policy has for

Schengen, even with economic interests being more important than refugee rights, because

economic interests would be more threatened by a dismantling of Schengen. That leaves the

option of spillover, but even though different scenarios are discussed, it is not possible to

reach a clear conclusion on what will happen to the area of asylum policy in the EU. Cecilie

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Malmström’s suggestion of making it possible to suspend returns under the Dublin Regulation

might prove to be a good way of giving the MS time to consider their options and possibly

amend the Dublin Regulation to solve the current crisis.

The discussion disproves the second hypothesis and together with the first hypothesis lead to

the answer of the thesis statement to be ambiguous. It is ambiguous in the sense that the

implications of the ECHR ruling depend completely on the future actions of the MS and the

direction they choose for EU asylum policy. What the thesis can do, is to offer different

suggestions on what the possible scenarios could be, as has been done.

4 Bibliography

Harvard System of Referencing

Books & Journal articles

of 50



Deubner, C., 2007. France: Contradictions and Imbalances. Zeff, E. and Pirro, E. B., ed.

2007. The European Union and the member states: influences, trends, and prospects.

Boulder, CO: Lynne Rienner Publishers.

Hill, C., 1998. Closing the Capability–Expectations Gap? Peterson, J. and Sjursen, H., eds.

A Common Foreign Policy for Europe? Competing Perspectives on the CFSP. London,

Routledge.

Moravcsik, A., Schimmelfenning, F, 2009. Liberal Intergovernmentalism. Wiener, A.,

Diez, T., ed.. 2009. European Integration Theory. Oxford University Press. Chap 4

Nugent, N., 2006. The Government and Politics of the European Union. Palgrave Macmil-

lan.

Niemann, A., Schmitter, P. C., 2009. Neofunctionalism. Wiener, A, Diez, T., ed., 2009.

European Integration Theory. Oxford University Press. Chap 3

Schmitter, P. C., 2004. Neufunctionalism. Wiener, A, Diez, T, ed., 2004. European Integ-

ration Theory. Oxford University Press. Chap 3

Smith, K. E., 1997. The use of political conditionality in the EU’s relations with third

countries: How effective?[online] Available at http://aei.pitt.edu/2729/ [Accessed 9

April 2011 ].

Smith, M. , 2004. Between Two Worlds? The European Union, the United States and

World Order. International Politics, Vol. 41, Iss. 1, pp. 95.

Van Krieken, P. J., 2004. The Consolidated. Asylum and Migration Acquis. T.M.C. Asser

Press.

of 50

http://aei.pitt.edu/2729/



Vevstad, V., 2006. Utvikling av et felles europeisk asylsystem. Jus og Politikk.

Conventions, Court rulings & Reports

Charter of Fundamental Rights of The European Union (2000/C 364/019, 2000. [on-

line] Available at [online] Available at http://www.echr.coe.int/NR/rdonlyres/D5C-

C24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf [Accessed 20 April 2011].

Convention of the Protection of Human Rights and Fundamental Freedoms, 2010. [on-

line] Available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-

B457-5C9014916D7A/0/ENG_CONV.pdf [Accessed 24 April 2011].

European Court of Human Rights (ECHR) 2011. CASE OF M.S.S. v. BELGIUM AND

GREECE . (Application no. 30696/09) [online] Available at http://www.state-

watch.org/news/2011/jan/echr-judgment-mss-v-belgium-greece.pdf [Accessed 15

March 2011].

Office of the United Nations High Commissioner for Refugees. (UNHCR), 2009. Obser-

vations on Greece as a country of asylum. [online] Available at http://www.unhcr.no/

Pdf/Position_countryinfo_2010/GREECE%20final281209.pdf [Accessed 17 April

2011].

Judgment of the Court (Fifth Chamber). 2007. Commission v Greece (Case C-72/06)

[online] Available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?

uri=CELEX:62005J0219:EN:PDF [Accessed 28 April 2011].

UNCHR, 2010. UNHCR. Recommendations to Hungary for its EU Presidency- January-

June 2011. [online] Available at http://www.unhcr.org/4d0645fb9.pdf [Accessed 30

April 2011]

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Web-articles & Web-sites

European Council on Refugees and Exiles (ECRE) [online] Available at http://

www.ecre.org/ [Accessed 18 April 2011].

Euronews, 2011. Italy, France wants Schengen changes. [online] Available athttp://

www.euronews.net/2011/04/26/italy-france-want-schengen-changes/ [Accessed 30

April 2011].

Human Rights Watch (HRM), 2008 Stuck in a Revolving DoorIraqis and Other Asylum

Seekers and Migrants at the Greece/Turkey- Entrance to the European Union. 1-56432-

411-7. [online] Available at http://www.hrw.org/en/reports/2008/11/26/stuck-re-

volving-door-0 [Accessed 21 April 2011].

Human Rights Watch (HRW), 2010. Greece: Asylum Reform Delay Unacceptable. [on-

line] Available at: http://www.unhcr.org/refworld/docid/4c9846281a.html [Ac-

cessed 1 May 2011]

IEWY Home » Politics, 2011. Statement of Cecilia Malmström, European Commissioner

for Home Affairs, following the judgement of the European Court of Human Rights on the

transfer of asylum seekers under the EU Dublin Regulation[Online] Available at:

http://www.iewy.com/14712-statement-of-cecilia-malmstrom-european-

commissioner-for-home-affairs-following-the-judgement-of-the-european-court-of-

human-rights-on-the-transfer-of-asylum-seekers-under-the-eu-dublin-

regulation.html

Migrant’ rights network (MRN). 2011. Human Rights Court rules that asylum seekers

cannot be sent to Greece under Dublin Convention procedure. [online] Available at

http://www.migrantsrights.org.uk/news/2011/human-rights-court-rules-asylum-

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http://www.iewy.com/news/politics

http://www.iewy.com/

http://www.hrw.org/en/reports/2008/11/26/stuck-revolving-door-0

http://www.hrw.org/en/reports/2008/11/26/stuck-revolving-door-0





seekers-cannot-be-sent-greece-under-dublin-convention-proc [Accessed 8 April

2011].

Nowak, M., 2010. UN expert urges EU to help ‘overwhelmed’ Greece deal with irregular

migrants. UN News Centre. [online] Available at http://www.un.org/apps/news/

story.asp?NewsID=36517&Cr=migrants&Cr1=&Kw1=Greece&Kw2=refugee&Kw3

[Accessed 29 April 2011].

The United Nations Refugee Agency (UNHCR) [online] Available at www.UNHCR.org

[Accessed 19 April 2011 ].

Vevstad, V., 2011. [online] Available at http://www.vvevstad.com/

[ Accessed 30 April 2011 ].

Vogel, T., 2011. Expulsion of asylum seekers to Greece 'illegal'.EuropeanVoice. [online]

Available at http://www.europeanvoice.com/article/2011/january/expulsions-of-

asylum-seekers-to-greece-illegal-/70019.aspx [ Accessed 10 April 2011 ].

5 Table of Abbreviations

CEAS The Common European Asylum System

CJEU Court of Justice of the European Union

EC European Community

ECRE European Council on Refugees and Exiles

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http://www.europeanvoice.com/article/2011/january/expulsions-of-asylum-seekers-to-greece-illegal-/70019.aspx

http://www.europeanvoice.com/article/2011/january/expulsions-of-asylum-seekers-to-greece-illegal-/70019.aspx

http://topics.europeanvoice.com/topic/country/Greece

http://www.UNHCR.org/



ECHR European Court of Human Rights

HRW Human Rights Watch

JHA Justice and Home Affairs

LI Liberal Intergovernmentalism

MS Member States

MRN Migrant’ rights network

OECD The Organisation for Economic Co-operation and Development

SEA Single European Act

SEM Single European Market

UN The United Nations

UNCHR Office of the United Nations Refugee Agency

6 List of enclosures

1. Dublin Regulation

2. OECD Key short term indicators, Current account in % of GDP

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3. Dublin Regulation outgoing requests

4. Dublin Regulation ingoing requests

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