The crisis of the common European asylum system: rethinking solidarity in light of human rights

Abstract

In 2015, the unprecedented arrival of refugees and irregular migrants in the European Union (EU) put a strain on the Common European Asylum System (CEAS), thus exposing a number of deficiencies in EU external border, asylum and migration policy. The need to reform the system became urgent and the EU was presented with both a challenge and an opportunity to further advance towards a much-needed consensual and long-term solution for the harmonisation of the asylum system, standing on the basis of solidarity and responsibility-sharing. This paper argues that the new comprehensive approach to migration and asylum praised by the European Commission (EC) is still missing in the recent Pact on Migration and Asylum of 2020, which represents more a missed opportunity than the real reform that the CEAS needs. The chosen legislative path, the dualistic understanding concerning the approach to migrants, and the new solidarity mechanism envisioned in the Pact show how the lack of consensus among Member States, the tendency towards the creation of a “Fortress Europe”, and an asymmetric idea of inter-state solidarity prevail, preventing the development of a common European framework for migration management that is both effective and in line with the EU’s values and objectives. This paper further argues that, if the EU fails to shift the paradigm of solidarity, the system is at risk of remaining fractured and incapable of withstanding the future challenges of migration. A new framework must be grounded on the principle of solidarity, as defined in the Article 80 of the Treaty on the Functioning of the European Union (TFEU) which, in turn, needs to move from a state-centred approach to a concept of solidarity based on affected individuals, thus setting its foundations on a human rights basis. The EU needs, in fact, to strongly step up as a humanitarian actor and place protection and responsibility-sharing at the centre of its agenda: the protection of fundamental human rights in its territory and beyond is at stake.