Revue Européenne du Droit
Solidarity Deficit, Refugee Protection Backsliding, and EU’s Shifting Borders: The Future of Asylum in the EU?
Issue #3
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Issue #3

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Evangelia Lilian Tsourdi

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

There is a refugee-related crisis in the EU; however, it is not a ‘refugee crisis’, it is a crisis of EU values and governance. Crisis vocabulary has constantly dominated public discourse on asylum in the EU since 2015. The ‘crisis’ is often associated with increased arrivals of asylum seekers to the EU, which peaked during the summer and autumn of 2015. According to the dominant narrative, the sheer number of arrivals overwhelmed the EU and its Member States, suggesting that EU’s asylum system was otherwise adequately designed and performant 1

But this (policy) vision ignores the problems and limitations in EU’s common asylum system design, and most notably a structural solidarity deficit due to its responsibility allocation arrangements and its implementation design. Moreover, it ignores the gradual erosion of EU’s foundational values, such as fundamental rights and the rule of law. Finally, it ignores the EU’s constantly ambivalent approach towards refugee protection and global responsibility-sharing. The EU’s commitment to protection emerged in tandem with attempts to ensure that few asylum seekers would be able to reach the territory of EU Member States to claim asylum. 

In this contribution, I scratch beneath the ‘refugee crisis’ discourse, and critically analyse responsibility-sharing efforts and the solidarity deficit in the EU’s asylum policy design, refugee protection backsliding, and EU’s externalisation projects. I outline causes and the resulting effects and offer some thoughts on a productive way forward to ensure that there is a future for asylum in the EU. 

Solidarity in the EU asylum policy: a palliative and emergency-driven approach 

The EU treaties contain an arguably legally binding principle of solidarity and fair sharing of responsibility 2 . This principle profoundly impacts the goal of the EU asylum policy: it dictates a certain ‘quality’ in the cooperation between the various actors, and arguably calls for structural changes in the policy’s implementation modes, for example the method of allocating responsibility 3 . Nevertheless, EU asylum policy lacks a system for allocating responsibility among the Member States based on objective indicators 4 . Instead, EU’s responsibility allocation system, the so-called Dublin system 5 , allocates more responsibility to States at the Union’s external maritime borders. Once the responsibility is assigned, it is for the individual Member State to take care of the refugee. Therefore, refugee immobility permeates the system, hindering further redistributive efforts, while EU support measures, such as funding, are limited. If the EU policy were based on an objective assessment of the protection capacity of each Member State, the ‘inability to comply’ with a State’s obligations could be clearly distinguished from an ‘unwillingness to comply’, reducing tensions between Member States; instead, the current system pits Member States against one other and disincentivises compliance.

While some manifestations of intra-EU solidarity in the asylum policy do exist, these are underpinned by a palliative and emergency-driven vision of solidarity. The palliative vision of solidarity takes the unequal distributive effect of EU’s current responsibility allocation system as a given. Rather than seeking to address the source of the problem, a series of quick and ad hoc ‘fixes’ are employed, meant to – somewhat – counterbalance the lack of fair-sharing of responsibilities. For example, agency operational deployments are targeted at addressing ‘particular pressures’ on the national asylum and reception systems. They were supposed to be limited in time. Emergency funding, as its name suggests, was and continues to target situations of heavy migratory pressure. Intra-EU humanitarian aid is also a time-limited measure.

Every effort has been made to suggest that it was not necessary to depart from the initial implementation design, and that the source of the ‘ill’ of the system were the passing emergencies, a form of force majeure created by ‘external’ pressure. And yet some Member States, such as Greece and Italy, have drawn almost constantly from ‘emergency funding’ since its inception, while the EU agency European Asylum Support Office steadily continues to renew ‘emergency plans’ with ‘special support plans’ on the ground. Therefore, rather than being purely external, the pressures are also internal, created by the misconceptions of the implementation design itself, as well as the adoption of a palliative vision of solidarity. 

Even so, no lasting change has been made to EU’s responsibility allocation system 6 . The New Pact on Migration and Asylum 7 , the latest policy framework on EU asylum, migration, and integrated border management policies, and the series of legislative proposals that accompany it 8 , embed a variant of flexible solidarity. Heterogeneous contributions, a Byzantine operationalisation mechanism, and a strong externalisation impetus riddle these proposals, which are unlikely to achieve fair sharing in EU’s asylum policy 9 .

Refugee Protection Backsliding: erosion of adherence to fundamental rights and the rule of law

The asylum policy’s ills are exacerbated by another major challenge facing the EU which is the ‘rule of law crisis’ 10

One facet is linked with what has been conceptualised as the ‘rule of law backsliding’. Building on Jan-Werner Müller’s analysis of constitutional capture 11 , Laurent Pech and Kim-Lane Scheppele have defined rule of law backsliding as ‘the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’ 12 . Presumably, systemic fundamental rights violations refer to violations of a certain type, intensity, or duration. But rule of law failings are broader than these forms of grave constitutional capture. Indeed, policy documents, such as the Commission’s annual rule of law report, refer to breaches relating to judicial independence, harassment of civil society organisations and educational institutions, and violations of the freedom of expression 13

These developments are connected with refugee protection backsliding. The choice not to implement asylum-related obligations in defiance due to ideological opposition to refugee protection is exemplified through the emergency relocation schemes. Two Council decisions established emergency relocation, meaning intra-EU transfer of asylum seekers between Member States, to benefit Italy and Greece during 2015-17 14 . This initiative was undercut by several factors, including its own legislative and administrative characteristics 15 . Both decisions numerically capped their potential beneficiaries 16 , restrictively defined eligible applicants 17 , and had an expiration date of two years 18 . Like the Dublin system, they failed to take into account the preferences of the asylum seekers themselves. The scheme’s implementation was also undercut by the outright refusal of certain Member States to relocate asylum applicants. A mixture of ‘moral’ and legal arguments undergirded the resistance to the implementation of the decisions, and to asylum obligations more broadly, by the Visegrad group (i.e., Czech Republic, Hungary, Poland and Slovakia). These included pleas to Europe’s (and Hungary’s) Christian identity 19 ,  or constitutional identity 20 , or (Poland’s) ethnic homogeneity 21 . The CJEU was not persuaded and found that these Member States’ refusal to comply with the EU policy violated EU law 22 .

Asylum-related systemic fundamental rights violations have been observed in different Member States. For example, since 2015, the Hungarian government has dismantled refugee protection through a series of legislative amendments. The measures affected every aspect of the national asylum system 23 . Among other things, they curtailed procedural rights under ‘normal procedures’; abolished integration measures for recognised beneficiaries; introduced a fully informal removal mechanism first within an eight-kilometre distance of the fence with Serbia and later throughout the whole territory; criminalised the crossing of the 175 kilometre fence; and established that a ‘crisis situation’ permits the deprivation of liberty of asylum seekers in transit zones during the entire refugee status determination procedure 24 . These amendments led to systemic violations of asylum seekers’ fundamental rights, including procedural rights, which fall within the scope of the rule of law principles. 

In Greece, systemic fundamental rights violations have been linked with the operationalisation of the ‘hotspot approach to migration management’ 25 and pushbacks at the external borders. The hotspot approach essentially concerns interagency collaboration, where national experts deployed by specific agencies—the European Asylum Support Office (EASO), Frontex, Europol, and Eurojust—and agency staff operationally assist national administrations in ‘hotspots’ for migrant arrivals. Critical migration studies scholars conceptualise these hotspots as an incubator of ‘liminal EU territory’, understood as ‘a sorting space that filters through the ‘deserving few’ and detains or removes the ‘undeserving’ and the ‘rightless’’ 26 . From a doctrinal legal perspective, the current implementation of the EU hotspot approach has led to fundamental rights violations, including the risk of refoulement due to return to a non-safe country 27 , disproportionate restrictions to the freedom of movement of asylum seekers 28 , and violations of the principle of human dignity and of the prohibition of inhuman or degrading treatment 29

These dynamics are certainly not limited to Greece or the operations of hotspots, as the recent situation at the external border of Poland and Lithuania with Belarus illustrates 30

A final example of such unilateral deflection actions in violation of human rights takes place at the EU’s external sea borders. Namely, the absence of an EU-coordinated response to disembarkation of asylum seekers and migrants arriving by sea has seen Member States such as Italy and Malta unilaterally declaring a ‘closed port’ policy combined with non-disembarkation practices. This has led to intense human suffering with boats remaining adrift at sea for lengthy periods 31 . When disembarkation and relocation takes place, it is organised in an ad hoc manner, ‘ship-by-ship’. 32

EU’s shifting borders: embedding externalization in EU’s external relations 

Alongside physical border barriers, such as walls and barbwire fences, new technologies and instruments driven by ‘sophisticated legal innovations’, have led to the emergence of the ‘shifting border’ paradigm, turning the border into an individual moving barrier 33 . The location of this border is not fixed in time or place – it shifts inwards and outwards of the territory –  while simultaneously exhibiting features of a static border transformed into ‘the last point of encounter, rather than the first.’ 34

Deterrence is not limited to EU’s territorial borders. When it comes to protection issues, the ‘shifting border’ manifests itself in practices such as placing the countries of origin of those likely to seek international protection on the EU visa ‘blacklist’, and privatising migration control through the sanctioning of carriers (such as airlines) that allow those without visas to travel by means of regular flights. Together, these measures illegalize certain would-be entrants, creating a market for illicit travel. 

This account of the EU and refugee containment has long been recognised.  As early as 2001, Noll identified the ‘common market of deflection’ 35 , while both Moreno-Lax 36 and Gammeltoft-Hansen 37 have provided insightful accounts on how the EU’s external border control, visa, and migration policies impede access to protection and deflect protection obligations to non-EU States.    

A newer development is that of ‘contactless control’ which signifies a shift in the ‘deterrence paradigm’ from the mere prevention of spontaneous arrivals and deflection of flows to other destinations, to hindering the exit of ‘risky’ migrants 38 . These policies are implemented by securing the strategic partnership of key transit and origin countries which are persuaded to contain, as well as readmit, potential asylum seekers in exchange of political and financial gains, such as funding, visa facilitation or accession negotiations 39

Emblematic of this approach is the EU-Turkey Statement of March 2016 40 . This Statement, or ‘deal’ as it is commonly called, sought to curb irregular arrivals of (in particular Syrian) refugees from Turkey, by envisaging that Turkey would swiftly readmit anyone making an irregular journey to the Greek islands. In exchange, Turkey was offered greater financial support, and promises of visa free travel to the EU for Turkish nationals, amongst other incentives. The EU-Turkey deal has been hailed as a success. Nonetheless, both its actual effectiveness and its compatibility with human rights norms are contested 41 . Still, the EU continues seeking to co-opt other active partners in migration management in key transit countries in Sub-Saharan Africa, such as Niger. 

At the same time, the EU has engaged in voluntary and programmatic commitments of responsibility-sharing at the global level through the UN Compact on Refugees 42 , although resettlements to the EU remains numerically modest. At the height of the Syrian displacement, EU Member States resettled a total of 27,800 persons 43 . A voluntary scheme initiated by the Commission and running between September 2017-December 2019 was meant to resettle an additional 50,000 44 .  By October 2019 the latter scheme had led to the resettlement of 39,000 persons, while Member States pledged an additional 30,000 places for 2020 45 .  While these numbers are more significant than in the past, they should be compared with the global resettlement needs, which for 2020 were projected to 1.44 million persons by UNHCR 46 . Importantly, the voluntary nature of Member State participation in these schemes has led to divergences within the EU, with 12 Member States not resettling a single individual in 2019 47

Conclusions: is there another way forward?  

It follows from the above that the solidarity deficit, refugee protection backsliding, and EU’s shifting borders are a reality. But this reality is not inevitable, and a different way forward for EU’s asylum policy exists. 

Firstly, there are different approaches to achieve a fair-sharing of responsibilities than the ones foreseen in the New Pact. Rather than a single approach constituting a ‘silver bullet’ to the solidarity deficit, it is more likely that a combination of those alternative approaches would yield results. Instead of the heterogeneous contributions foreseen in the Pact to realise solidarity with frontline Member States, such as ‘return sponsorships’, or capacity building in third countries, secondary EU law could establish concrete positive contributions to the asylum systems of other Member States even without relocation (e.g. improving reception conditions). 48 Next, a more radical shift in the implementation modes of EU’s asylum policy could be foreseen through further enhancing administrative integration and joint implementation patterns, for example in asylum processing, with the involvement of the EU level, including through the European Union Agency on Asylum 49 . Moreover, a significant boost in fair sharing could be the result of providing more structural forms of EU funding to Member States for implementing asylum-related obligations rather than expecting that human and financial resources for the realisation of EU’s asylum policy will be drawn mainly from national budgets.  Finally, the EU co-legislators could foresee the mutual recognition of positive asylum decisions, coupled with variants of free movement rights for recognised beneficiaries, mirroring those pertaining to EU citizens 50 . Some of those envisaged solutions, such as establishing free movement rights for recognised beneficiaries or establishing concrete positive contributions to the asylum systems of other Member States, could be achieved in the short term as they merely require amendments in secondary law. Other solutions, such as foreseeing structural forms of EU funding to implement EU’s asylum policy, would require a drastic overhaul of the distribution of financial envelopes in the multi-annual financial framework and thus can only be achieved in the longer term.

Secondly, it should be noted that defiance for ideological or political reasons could be a symptom of constitutional capture, or rule of law failings. The response here cannot remain policy specific. Even if the solidarity deficit were to be addressed, this type of asylum-related problems would persist. In fact, where constitutional capture is grave, relevant governments are likely to resist productive solutions on enhancing fair sharing and ensuring the viability of EU’s asylum policy, as exclusionary nationalist discourses, racism, and xenophobia, suit their political agenda. As part of a broader pattern of dismantling the rule of law at the national level, the examination of these failings should be incorporated into processes seeking to probe risks to EU values, such as Article 7 TEU procedures, or related procedures like those under Commission’s rule of law framework 51 . These examinations could also be part of what Scheppele conceptualises as ‘systemic infringement actions’ 52 , particularly the type of action arguing that systemic violations of basic principles of EU law violate the principle of sincere cooperation (Article 4, para. 3 TEU) 53 . Another variant of the infringement procedure could allege systemic violations of fundamental rights 54 , and they can be useful even where violations do not relate to constitutional capture. Finally, Kochenov has described how infringement actions initiated by Member State and focusing on rule of law failings could forcefully complement pressure by EU institutions 55 . There are some modest signs that Member States could be willing to engage in such actions 56 . However, there has not been an actual initiation of an infringement action by another Member State relating to respect of the rule of law to date.  Finally, on the fundamental issue of legal access to asylum, only legislative change in either the EU asylum, or the EU visa policy, could alter the current status quo. I am referring to the establishment of so-called humanitarian visas that would allow asylum seekers to travel legally to the EU to seek protection. Despite some encouraging signs from the European Parliament 57 , this option is not currently explored by the other EU institutions. In EU’s external relations, the focus should shift from a predominantly containment and deterrence approach to measures genuinely supporting the development of disadvantaged populations in third countries, meaning measures targeting refugee and local communities alike. This should be coupled with the provision of a meaningful amount of resettlement places to the EU, including targeting especially vulnerable refugee groups, e.g., those in need of special medical assistance, rather than ‘cherry picking’ refugees for resettlement based on integration criteria.

Notes

  1. This work was supported by a VENI programme grant (project Nr. VI.Veni.191R.040) which is financed by the Dutch Research Council (NWO).
  2.  See, TFEU, Article 80. 
  3.  See, E. Tsourdi, ‘Solidarity at Work? The Prevalence of Emergency-Driven Solidarity in the Administrative Governance of the Common European Asylum System’ (2017) 24 Maastricht Journal of European and Comparative Law, 667, 673-675. See also analysis in E. Küçük, ‘The principle of solidarity and fairness in responsibility sharing: more than window dressing?’ (2016) 22 European Law Journal 448; E. Karageorgiou, ‘Solidarity and sharing in the Common European Asylum System: the case of Syrian refugees’ (2016) 17 European Politics and Society 196. 
  4.  See, P. De Bruycker and E. Tsourdi, ‘In search of fairness in responsibility sharing’ (2016) 51 Forced Migration Review64, 65. See also E. Guild, C. Costello, and V. Moreno-Lax, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece’, Study for the LIBE Committee (2017), 68-70. 
  5.  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/31 (Dublin III Regulation).
  6.  See E. Tsourdi and C. Costello, ‘The Evolution of EU Law on Refugees and Asylum’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (OUP 2021), 793, 805-809. 
  7.  Communication COM(2020) 609 final from the Commission of 23 September 2020 on a New Pact on Migration and Asylum.
  8.  The most relevant to our analysis are: Commission Proposal for a Regulation introducing a screening of third country nationals at the external borders, COM(2020) 612 final; Amended Commission Proposal for a Regulation  establishing a common procedure for international protection in the Union, COM(2020) 611 final; Commission Proposalfor a Regulation on asylum and migration management, COM(2020) 610 final; and, finally, Commission Proposalfor a Regulation addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613 final. 
  9.  See, E. Mavropoulou and E. Tsourdi, ‘Solidarity as normative rationale for differential treatment: common but differentiated responsibilities from international environmental to EU asylum law?’, forthcoming in the 51 Netherlands Yearbook of International Law 2020 (2022). 
  10.  See, E. Tsourdi, ‘Asylum in the EU: One of the Many Faces of Rule of Law Backsliding?’, forthcoming in the 17(3) EU Constitutional Law Review (2021). 
  11.  See, J-W. Müller, ‘Should the EU Protect Democracy and the Rule of Law Inside Member States?” (2015) 21 European Law Journal, 141-60.
  12.  See, L. Pech and K. L. Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3, 10. 
  13.  See, e.g., European Commission, ‘2020 Rule of Law Report: The rule of law situation in the European Union’, COM(2020)580. 
  14.  Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece [2015] OJ L239/146 (1st Emergency Relocation Decision); Council Decision (EU) 2015/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L248/80 (2nd Emergency Relocation Decision).
  15.  See, B. De Witte and E. Tsourdi, ‘Confrontation on Relocation – The Court of Justice Endorses the Emergency Scheme for Compulsory Relocation of Asylum Seekers within the European Union: Slovak Republic and Hungary v Council’ (2018) 55 Common Market Law Review, 1457, 1459-67; E. Guild, C. Costello, and V. Moreno-Lax, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece’, Study for the LIBE Committee (2017), pp. 42-4: https://www.europarl.europa.eu/RegData/etudes/STUD/2017/583132/IPOL_STU(2017)583132_EN.pdf.
  16.  1st Emergency Relocation Decision, Art 4; 2nd Emergency Relocation Decision, Art 4(1).
  17.  1st Emergency Relocation Decision, Art 3(2); 2nd Emergency Relocation Decision, Art 3(2) establishing the notion of applicants ‘in clear need of international protection’.
  18.  The first relocation decision applied until 17 September 2017 and the second until 26 September 2017. See respectively 1st Emergency Relocation Decision, Art. 13(2) and 2nd Emergency Relocation Decision, Art. 4.
  19.  See e.g., M. Karnitschnig, ‘Orban says migrants threaten “Christian” Europe’ (Politico Europe, 3 September 2015), referring to the Hungarian PM’s op-ed for the German newspaper Frankfurter Allgemeine Zeitung: <https://www.politico.eu/article/orban-migrants-threaten-christian-europe-identity-refugees-asylum-crisis/>.
  20.  For analysis of this case law see G. Halmai, ‘Abuse of Constitutional Identity: The Hungarian Constitutional Court on Interpretation of Article E(2) of the Fundamental Law’ (2018) 43 Review of Central and East European Law23. On the dangers for the rule of law emanating from constitutional pluralism, see also D. R. Kelemen and L. Pech, ‘The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland’ (2019) 21 Cambridge Yearbook of European Legal Studies 59. For views in support of constitutional pluralism see various contributions in G. Davies and M. Avbelj (eds.), Research Handbook on Pluralism and EU Law (Edward Elgar 2018). 
  21.  See, ECJ 6 September 2017, Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v Council of the European Union. 
  22.  See, ECJ 2 April 2020, Joined Cases C-715-17, C-718/17 and C-719-17, European Commission v Poland, Czech Republic and Hungary, paras. 24-31 and commentary in E. Tsourdi, Relocation Blues – Refugee Protection Backsliding, Division of Competences, and the Purpose of Infringement Proceedings: Commission v. Poland, Hungary and the Czech Republic, accepted and forthcoming, (2021) 58(6) Common Market Law Review.    
  23.  See, B. Nagy, ‘From Reluctance to Total Denial: Asylum Policy in Hungary 2015-2018’, in V. Stoyanova & E. Karageorgiou (eds.), The New Asylum and Transit Countries in Europe During and in the Aftermath of the 2015/2016 Crisis (Brill 2019), p. 17; K. Juhász, ‘Assessing Hungary’s Stance on Migration and Asylum in Light of the European and Hungarian Migration Strategies’ (2017) 13 Politics in Central Europe 35; Hungarian Helsinki Committee, Two Years After: What’s Left of Refugee Protection in Hungary?:  <http://www.helsinki.hu/wp-content/uploads/Two-years-after_2017.pdf>.
  24.  Nagy, op.cit.
  25.  For its first conceptualization see Commission Communication of 25 September 2015 on managing the refugee crisis: immediate operational, budgetary and legal measures under the European agenda on migration, COM (2015)490 final, Annex II.
  26.  See, A. Papoutsi et al (2019) The EC hotspot approach in Greece: creating liminal EU territory Journal of Ethnic and Migration Studies, 2200, 2201. 
  27.  See, M. Gkliati, ‘The EU-Turkey Deal and the Safe Third Country Concept Before Greek Asylum Appeals Committees (2017) J. Crit. Migration & Border Regime Stud. 213 and E. Tsourdi, ‘Regional Refugee Regimes – Europe’, in C Costello, M Foster, and J McAdam (eds) Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 352, 365-367. 
  28.  See, M. Mouzourakis, ‘All but last resort: The last reform of detention of asylum seekers in Greece’ (18 November 2019) EU Immigration and Asylum Law and Policy/Odysseus Academic Network <https://eumigrationlawblog.eu/all-but-last-resort-the-last-reform-of-detention-of-asylum-seekers-in-greece/>/.
  29.  See, E Tsourdi, ‘COVID-19, asylum in the EU, and the great expectations of solidarity’ (2020) International Journal of Refugee Law (2020) 32 International Journal of Refugee Law, 374. 
  30.  See, G. Baranowska, The Deadly Woods: Legalizing pushbacks at the Polish-Belarusian border, VerfBlog, 2021/10/29, https://verfassungsblog.de/the-deadly-woods/.
  31.  One such highly mediatised case was that of the Aquarius ship. See, SOS Méditerranée (2018), On instructions from Rome, the Aquarius is stopped at sea between Malta and Italy, waiting for a safe port to disembark 629 survivors, Press Release 11 June 2018 <https://sosmediterranee.com/on-instructions-from-rome-the-aquarius-is-stopped- at-sea-between-malta-and-italy-waiting-for-a-safe-port-to-disembark-629-survivors/>.
  32.  See, S. Carrera and R. Cortinovis, Search and rescue, disembarkation and relocation arrangements in the Mediterranean: Sailing Away from Responsibility?, CEPS Paper in Liberty and Security No. 2019-10, 2019. 
  33.  See, A. Shachar, The shifting border: Legal cartographies of migration and mobility. Ayelet Shachar in dialogue (Manchester University Press 2020) 6-7.
  34.  Ibid., 5. See also the finalized and forthcoming special issue with contributions exemplifying the nature of the shifting border in the EU and critically analysing its implications, E. Tsourdi, A. Ott & Z. Vankova (eds), The EU’s Shifting Borders Reconsidered: Externalisation, Constitutionalisation, and Administrative Integration, European Papers (2022).
  35.  See, G. Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Brill 2001).
  36.  See, V. Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law (OUP 2017). 
  37.  See, T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (CUP 2011). 
  38.  See, M. Giuffré and V. Moreno-Lax, ‘The rise of consensual containment: from contactless control to contactless responsibility for migratory flows’, in S. Juss (ed.) Research Handbook on International Refugee Law (Edward Elgar Publishing 2019) 84. On contactless control see further V. Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control—On Public Powers, S.S. and Others v. Italy, and the “Operational Model”’ (2020) German Law Journal 385.
  39.  See, Giuffré and Moreno-Lax, ‘The rise of consensual containment’, op.cit., 84.
  40.  See, EU-Turkey statement, SN 38/16, 18 March 2016, and analysis below in subsection C(4). 
  41.  See, T. Spijkerboer, ‘Fact Check: Did the EU-Turkey Deal Bring Down the Number of Migrants and of Border Deaths?’ (Border Criminologies, 28 September 2016) < https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/09/fact-check-did-eu>  and S. Carrera, L. den Hertog and M. Stefan, ‘The EU-Turkey deal: reversing “Lisbonisation” in EU migration and asylum policies’, in S. Carrera, J. Santos Vara and T. Strik, Constitutionalising the external dimensions of EU migration policies in times of crisis: Legality, Rule of Law and Fundamental Rights Reconsidered (Edward Elgar 2019) 155. 
  42.  The Global Compact on Refugees is contained in the Report of the United Nations High Commissioner for Refugees: Part II, A/73/12, 2018 and affirmed by UN General Assembly, Resolution adopted by the General Assembly, 17 December 2018, A/RES/73/151. For commentary see the various contributions in the special issue of the International Journal of Refugee Law (2018) 30(4) titled The 2018 Global Compacts on Refugees and Migration.
  43.  See, European Commission, ‘Managing Migration in all its Aspects: Progress under the European Agenda on Migration’, COM(2018)798, 4.  
  44.  Commission Recommendation of 3.10.2017 on enhancing legal pathways for persons in need of international protection, C(2017) 6504.  
  45.  European Commission, ‘Progress report on the Implementation of the European Agenda on Migration’, COM(2019)481, 18. 
  46.  UNCHR, ‘UNHCR Projected Global Resettlement Needs: 2020’, 2019.  
  47. According to Eurostat statistics: 

    <https://ec.europa.eu/eurostat/databrowser/view/tps00195/default/table?lang=en>. The Member States in question were Austria, the Czech Republic, Cyprus, Denmark, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.

  48.  See, P. De Bruycker, ‘The New Pact on Migration and Asylum: What it is not and what it could have been’, EU Immigration and Asylum Law and Policy/Odysseus Network, 15 December 2020 (https://eumigrationlawblog.eu/the-new-pact-on-migration-and-asylum-what-it-is-not-and-what-it-could-have-been/).
  49.  See, E. Tsourdi, ‘Holding the European Asylum Support Office Accountable for its Role in Asylum Decision-Making: Mission Impossible’ (2020) 21 German Law Journal 506. 
  50.  See, V. Mitsilegas, ‘Humanizing solidarity in European refugee law: The promise of mutual recognition’ (2017) 24 Maastricht Journal of European and Comparative Law 721.
  51.  For commentary regarding their functioning and limits, see M. Bonelli, ‘From Sanctions to Prevention, and Now Back to Sanctions?: Article 7 TEU and the Protection of the EU Founding Values’, in S. Montaldo, F. Costamagna and A. Miglio, European Union Law Enforcement: The Evolution of Sanctioning Powers (Routledge 2021), 47; D. Kochenov and L. Pech, ‘Better Late than Never?: On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54 Journal of Common Market Studies1062.
  52.  See, K. L. Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’, in C. Closa and D. Kochenov (eds.), in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016), 105. 
  53.  See, K. L. Scheppele and R. D. Kelemen, ‘Defending Democracy in EU Member States: Beyond Article 7 TEU’, in F. Bignami (ed.), EU Law in Populist Times: Crises and Prospects (CUP 2020) 413, 437-438.
  54. See, K. L. Scheppele, D. Kochenov and B. Grabowska-Moroz, ‘EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union’ (2020) 39 Yearbook of European Law 3, 80-85.
  55.  See, D. Kochenov, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool’ (2015) 7 The Hague Journal of the Rule of Law153. 
  56.  I am referring to the December 2020 resolution of the Dutch House of Representatives to request the government to initiate an infringement action against Poland for undermining the rule of law. See G. Íñiguez, The Enemy Within? Article 259 and the Union’s Intergovernmentalism (New Federalist, 12 December 2020): <https://www.thenewfederalist.eu/the-enemy-within-article-259-and-the-union-s intergovernmentalism?lang=fr>. 
  57.  See, European Parliament resolution of 11 December 2018 with recommendations to the Commission on Humanitarian Visas (2018/2271(INL)).  
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Evangelia Lilian Tsourdi, Solidarity Deficit, Refugee Protection Backsliding, and EU’s Shifting Borders: The Future of Asylum in the EU?, Dec 2021,

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