The dispute about European asylum policy is essentially a dispute about responsibility. Most heated political and legal debates essentially come down to two questions: Who is responsible for refugee protection? And who is responsible for the violation of the rights of asylum seekers? These responsibility questions lie at the heart of discussions about the Dublin system, fences at the EU’s external borders in Melilla and Röszke, and cooperation with the Libyan coastguard.
Europe’s largest refugee camp, the EU hotspot Moria, is a particularly prominent example. Despite years of fundamental rights violations, it is still not clear who is responsible, not only from a political but also from a legal point of view. Moria shows what can happen when responsibility is not sufficiently structured. Responsibility is blurred and outsourced, and the rights of asylum seekers are continuously violated.
Against this background, the present study aims to better understand how responsibility is structured within the European asylum system. The approach will focus on specific features of EU law because these strengthen responsibility structures and thus set limits to externalisation strategies. Given the increasing operational involvement of the European Commission and EU migration agencies, a particular focus lies on the responsibility of the EU.
Chapter 1 argues that structuring responsibility is a core function of European asylum law. In fact, responsibility for refugee protection can be meaningfully regulated only at the regional or global level. While international refugee law clearly reflects this idea, it nonetheless provides for no more than a shallow responsibility structure. European asylum law, by contrast, is characterised by a relatively thick responsibility structure: this is so because EU law not only adds another responsible actor (the EU), but also strengthens the links among public actors (solidarity and trust) and between individuals and public actors (fundamental rights and individual rights). Despite the relatively strong European responsibility structure, member states and the EU heavily rely on strategies of blurring and outsourcing responsibility to each other or to third states. Externalisation hence remains a core challenge to refugee protection in Europe.
In view of this, it is crucial to examine responsibility structures in European asylum law and to identify legal limits to externalisation. Instead of doing this in abstract terms, the following chapters will zoom in on the paradigm case of the EU hotspots. Chapter 2 shows that the EU hotspot approach fails to meaningfully structure responsibility. So far, only Greece has been held responsible for the dire living condition in the camps, according to the ECHR. The controversial question whether the EU also bears responsibility is usually answered in the negative, simply because the EU does not issue formally binding individual decisions. This argument, however, is not conclusive; the legislative framework and the operation of the administration is essentially determined by the EU. In fact, the EU hotspots are truly European refugee camps. Now, assumed the EU is responsible for the EU hotspots, asylum seekers whose fundamental rights are violated must be able to exercise their right to an effective remedy. Chapter 3 examines how this could be done, and argues that the action for damages is the most suitable way to hold the EU responsible. Traditionally a gap-filler in the EU legal protection system, Art 340 para 2 TFEU today functions as a makeshift fundamental rights remedy. Chapter 4 applies these findings and shows that the EU may indeed be liable for the violation of individual rights in EU hotspots. A detailed doctrinal analysis shows that the EU can incur liability for non-formally binding administrative support provided by EASO and Frontex, as well as for the Commission’s failure to adequately supervise administrative cooperation.
Drawing the lessons from the case study of the EU hotspots, Chapter 5 comes back to the broader question of how responsibility is structured in European asylum law. The central claim is that the concept of integration may be used to capture the way in which responsibility is organised. In short, integrated responsibility is the rule-of-law-consequence of the integrated administration. Integrating responsibility prevents blurring or outsourcing, and thus counters externalisation strategies. While an increasing integration of responsibility can be observed already, EU law offers great potential to further deepen the integration of responsibility. With a view to the future development of European asylum law, it would indeed be appropriate to fully develop this potential: integrating is the EU’s way of organising responsibility.