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How Sustainable is the Current EU Refugee Regime? (by Dr. Marietta Messmer)

Date:14 October 2015
Local cyclists pass a group of refugees sleeping on a bicycle path
Local cyclists pass a group of refugees sleeping on a bicycle path

In late September, news media reported that 4,200 refugees had reached the Netherlands within a single week; roughly 8,000 refugees currently arrive in Germany per day; 42,000 are reported to be waiting at the Hungarian border; and 64,000 in Macedonia. According to UNHCR, almost 500,000 migrants have already crossed the Mediterranean this year, and the EU Commission estimates that within the next three years up to five million refugees might come to Europe.

The current refugee crisis may arguably posit an even greater challenge to the European Union than the Euro crisis. Apart from numerous gestures of help and sympathy, it has also prompted a range of critical measures, including the reintroduction of border controls at transit points between Schengen countries, and a fortification of the EU’s external borders. In many respects, these ad-hoc preventive measures can be interpreted as a logical extension of another migration management strategy that has significantly increased since the 1990s, and which can be termed the outsourcing or offshoring of migration control. In addition to delegating control decisions to non-state actors (such as airline carriers), the EU has also started to extra-territorialize the management of migration streams to countries that are located outside of its own political and legal borders, including Morocco, Senegal, Libya and, most recently, Turkey. Through bilateral readmission agreements (for which currently no EU framework exists), these countries are turned into important buffer zones responsible for preventing irregular migrants from reaching the EU, and for sending these people back to their countries of origin.

Such bilateral agreements exist between Morocco and Spain (since 1992), and between Italy and Libya (since 2008), for example, and include provisions about joint patrols in Moroccan/Libyan territorial waters, the interception of irregular migrants at sea and their return to their country of embarkation (so-called push-back operations) in exchange for investments in the participating nations’ infrastructure. Negotiations with Turkey are currently under way. While such push-back operations are quite cost-effective, they raise a serious ethical concern because they rarely allow for a clear distinction between irregular economic migrants and potential refugees. Since these measures focus mostly on preventing people from reaching the EU, there is a very real danger that the interception in international waters leads to the circumvention of basic human rights obligations vis-à-vis refugees, such as the non-refoulement principle.

In effect, this form of offshore migration management thus posits a serious challenge to the application of the Dublin Regulations (1997, 2003, 2013), according to which a potential refugee has to enter an EU country in order to be able to apply for asylum within that country (

Yet in practice, there hardly exist any legal ways for asylum seekers to reach Europe (due to the fact that since 2001, the EU holds airline carriers liable for the costs of sending back anyone traveling without a valid visa), and far too often refugees therefore rely on people smugglers. Whereas opening up possibilities to apply for asylum in certain designated embassies abroad has been proposed as a potential solution. Two Swedes seem to have managed to circumvent the air-carrier liability clause by launching Refugee Air, a charity organization designated to fly refugees to Europe so that they can avoid relying on human traffickers.

The Dublin Regulations themselves, however, also posit a problem. Since refugees have to file their application in the first EU country that they enter, this means that nations with external EU borders such as Italy, Spain or Greece face disproportionately heavy financial, social, and administrative burdens and are thus tempted to invest in push-back operations in order to prevent people from reaching their shores. For this reason, arguments about revisions to the Dublin Regulations are currently gaining in strength. One of the fairest measures, despite its highly controversial nature, would be to start addressing the refugee problem as a shared European responsibility and introduce a formal refugee quota for all EU member states. The agreement reached at the end of September to re-distribute 120,000 refugees from Italy and Greece is a promising step in this direction. Yet the fierce opposition by the Czech Republic, Slovakia, Romania and Hungary has illustrated how difficult the road ahead will be.

In addition, there also exists a fairly broad consensus that the current asylum regime is outdated and in need of revision. Yet negotiations are usually caught in a stalemate between the public commitment to human rights and the desire to maintain one’s own national legal sovereignty. The 2013 Directive of the European Parliament lays down common standards for the reception of asylum seekers, for example, yet this Directive still allows member states a lot of leeway in preserving national standards. And in June 2015, the EU agreed to homogenize the processing of refugee cases, but no concrete steps have yet been taken.

To date, the principle of human rights has not yet managed to seriously challenge the concept of national sovereignty. And in many ways, the tension between national legal sovereignty and international law is at the heart of the current EU refugee crisis . T he extent to which these conflicting interests can be reconciled will have a significant impact on the future of the EU.

Dr. Marietta Messmer is Senior Lecturer in the Department of American Studies. In addition, she is Editor-in-chief of the Interamericana book series (published by Peter Lang) and Dutch representative on the board of the European Association for American Studies (EAAS). The following represents part of a larger comparative project that examines U.S. and EU migration policies.