It's time to consider a two-tier EU immigration and asylum policy

Solon Ardittis is Managing Director of Eurasylum, a Research Fellow at the Institute of Labor Economics (IZA) and the Global Labor Organization (GLO), and Co-Editor of Migration Policy Practice

Since the outbreak of the EU migration/refugee emergency in 2015, and the resulting adoption of a legally binding solidarity and responsibility-sharing regime, political and institutional relations within the block have been marred by a range of successive dissensions.

To mention but a few marking examples, these have included the almost relentless antagonism and friction between the Visegrad Group and most of the other member states; the growing disagreements and misunderstandings between cities, civil society and large segments of the EU population on the one hand and national and EU executives on the other; and now, since a few days, the emerging inter-institutional schism between the EU Council and the Commission regarding the future of the refugee relocation system.

For any external observer, the EU’s determination to perpetuate binding solidarity rules that have both shown their limits and that have invariably been opposed by a number of member states must be difficult to apprehend.

Rather than continue to navigate a policy process that is leading to ever-growing blockages and to open defiance, the time might have come to acknowledge the failure of the current intra-EU migration solidarity doctrine and to envision effective and sustainable alternatives.

While the principle of solidarity and fair sharing of responsibility in the field of migration and asylum is enshrined in the Treaty on the Functioning of the European Union (TFEU), the same holds true of the ability of member states to opt out of specific Treaty provisions occasionally.

Old-time member states such as Denmark and the United Kingdom, in particular, have consistently opted out of a range of provisions in the area of EU home affairs, the Schengen acquis and the Charter of Fundamental Rights, not to mention several other EU instruments in the fields of justice, employment and social policy, over the past two decades.

More often than not, such opt-outs have been treated indulgently, if not impassively, by most EU actors. And when they have not, they have rarely been conducive to the levels of turmoil that have ensued the adoption of the intra-EU mandatory relocation system.

The principle of selective opt-outs now appears fully apposite to any future revision of the intra-EU solidarity regime in the field of migration and asylum. It need not be seen as a panacea but, rather, as one of the few options left to secure an appeased and undivided EU, and therefore to prevent further confrontations, sanctions and distrust, in the months and years to come.

One way of approaching such a policy overhaul would be to allow, formally, the establishment of two groups of member state in the area of EU migration policy: one that would sign up to a continuation of the current mandatory relocation system and the other that would only enrol on a voluntary basis and/or that would contribute to addressing the refugee emergency through other financial and technical assistance means.

While opt-outs from specific EU legal provisions in the 1990s and 2000s have never resulted into any financial penalties, in the context of the current EU migration and refugee policy it would probably seem inconceivable not to modulate the levels of future EU resources allocated to member states according to their effective contribution to the refugee quota system or any other solidarity policy mechanism that might be adopted in the future.

At a minimum, member states that would choose to opt out of the relocation system should be deprived of any future resources under the Asylum, Migration and Integration Fund (AMIF), and possibly of their voting rights in a number of future EU migration policy negotiations.

Opt-in member states, on the other hand, should of course be entitled to a proportionally higher share of the AMIF resources than is currently foreseen under the existing distribution key, and possibly to additional policy prerogatives.

In most policy areas – monetary, economic, social – the functioning of the EU has always built, formally or otherwise, on a two- or multi-speed architecture reflecting the relative priorities, traditions and wealth of each member state.

Why should it be any different in the context of current migration and asylum policy?

The EU’s resolve to extend a mandatory solidarity regime that has both under-performed over the past couple of years and that is causing increased animosity in a number of capitals might prove counterproductive at this stage. If anything it would produce far fewer benefits than it would stir increased tension among member states and fuel even higher levels of populism.

Irregular flows to Europe have dropped by over 60% since January 2017 and the time might have come to remove most aspects of immigration and asylum from the list of on-going policy emergencies.

Save for persisting national security and humanitarian concerns that should continue to top the EU agenda, migration and asylum should be reinstated, gradually, as a mainstream policy domain. This would also imply that, beyond the almost exclusive focus on external border management that has defined the EU’s policy response over the past couple of years, all facets of migration policy, particularly integration measures for legally residing third country nationals, should now receive appropriate attention and support.