The Principle of Solidarity in EU Law: Some Considerations Regarding Migration Policy and Civil Society
Carolina Silvestre[1]
Abstract: This blogpost aims to analyse the importance of solidarity in European Union Law through the lens of migration policy. It highlights the different approaches to migration ‘crises’ from 2015 to the most recent Ukrainian refugee outflow, questioning the interpretation of this principle and pointing out the flaws in its use. In this analysis, it questions civil society’s role in responding to migration ‘crises’, and how it impacts the choices of European Union Member States regarding their own solidarity obligations.
Keywords: European Union Law, Migration, Solidarity, Civil Society.
In the past decade, the world has witnessed an increasing number of conflicts from which people attempted to flee in search for international protection. The European Union (EU) has responded in different ways to these developments, with a stark contrast between its 2015/2016 policies in the context of conflicts in the Middle East and Northern Africa and the 2022 activation of the Temporary Protection Directive in relation to people fleeing the Russo-Ukrainian war. Solidarity – or the lack of it – has been understood in different ways and has played out differently in these contexts. This blogpost provides an analysis of the ways in which the idea of solidarity is enshrined in EU law and how it relates to the 2015/2016 ‘crisis’ and the 2022 Russo-Ukrainian war.
It also aims at highlighting the importance of civil society actors in what can be understood as a “solidarity crisis” in 2015/2016 and calls for more solidarity with migrants akin to the 2022 activation of the Temporary Protection Directive. Different meanings and uses of the idea of solidarity, as it will be shown, have also had an impact on how civil society actors have been approached. The blogpost also provides some tentative thoughts on how to approach such actors’ acts of assistance, given that they are of utmost importance for displaced persons but at the same time they often treat the ‘’symptoms’ of a malfunctioning system rather than its causes.
1. The principle of solidarity in EU law
Solidarity has been a founding principle of the European project since its earliest days and it has inspired the development of European Union (EU) law.[2] The creation of the EU aimed at consolidating peace and collaboration between Member States, by inter alia establishing frameworks of solidarity and harmonisation. [3]
The idea of solidarity is mentioned in articles 2 and 3 of the Treaty of the European Union (TEU), as a common principle of all member States.[4] Additionally, chapter IV of the Charter of Fundamental Rights of the European Union is entirely dedicated to this principle and provides mostly for social and economic rights. Furthermore, article 80 of the Treaty on the Functioning of the European Union (TFEU) states that the “the policies of the Union […] shall be governed by the principle of solidarity and fair sharing of responsibility […] between the Member States” and refers specifically to migration policies. Other policies, such as those concerning the Monetary Union, are also shaped by the idea of solidarity. [5]
Different provisions carry diverse meanings of solidarity. In the first two legal provisions mentioned above, solidarity is viewed as a foundational principle of the European Union, which unites Member States through a common set of values.[6] When it comes to article 80 of the TFEU, it refers more specifically to the application of this value to migration policies and puts forward the idea that certain obligations must fall upon Member States with the objective of sharing their responsibilities. In this sense, this article appears as “a specification of the more general principle of solidarity”. [7] As for Chapter IV, it seems to refer to the idea of a solidarity with groups of people concerned by certain socio-economic rights. When it comes to refugees or asylum seekers, additional provisions, such as the right to asylum, might be interpreted as based on the idea of institutional solidarity with a group of people.
2. Solidarity in EU Asylum Law
The interpretation of solidarity as it stands in article 80 of the TFEU remains vague.[8] Not only can it be approached through different lenses, but also the concrete obligations which are derived from this principle remain unclear. Overall, considering both the Charter of Fundamental Rights of the EU and article 80 of the TFEU, it can be argued that asylum policies in EU law are shaped by two main dimensions of solidarity: that between Member States, on the one hand, and between Member States and groups of individuals, on the other hand.[9]
The solidarity between Member States expressed in article 80 of the TFEU stands, however, in contradiction with the regime established by the Dublin III Regulation, by now widely criticized for creating a disproportionate “burden” for frontline Member States. [10] Moreover, a climate of ‘mutual mistrust’ has motivated many policy options since the 2015 refugee ‘crisis’ even when EU institutions sought to establish solidarity mechanisms to counter the failures of the Dublin III system. [11] Indeed, the adopted measures, whether operational (the relocation of asylum seekers within Member States) or financial (through the Asylum, Migration and Integration Fund), have shown to be largely insufficient.[12]
This inevitably has had a negative impact on displaced persons who seek for asylum in the EU. In this sense, it also stands in contrast with the provisions that express solidarity with such people, especially articles 18 and 19 of the Charter of Fundamental Rights, which refer to the right to seek asylum and the principle of non-refoulement. These provisions are also in tension with a variety of rules that hinder in different ways the access to asylum, such as the grounds for inadmissibility of asylum applications and the grounds for accelerated procedures.
Among the secondary legislative instruments that are part of the Common European Asylum System, perhaps the Temporary Protection Directive is the most in line with the idea of solidarity with displaced persons. Indeed, it offers protection to such people if they are concerned by a situation of mass influx and are unable to return to their country of origin.
The tensions that animate EU Asylum law gave rise to important shortcomings and failures at the expense of displaced migrants. This is one of the main reasons why civil society actors have often stepped in. In other words, their actions would be based on migrant solidarity where the EU and its Member States fail to live up to their promises. It would be however naïve to believe that all civil society actors fit this description. Indeed, some actors might be motivated by a traditional conception of humanitarianism complicit with the idea that the main problem to be addressed is migrant smuggling and illegal migration, thus obfuscating EU law’s role in producing dangerous routes to reach the EU. Such conception of humanitarianism generally produces the idea that civil society actors are heroes who are rescuing needy and helpless refugees, leading to victimising narratives and saviourism. [13]
Maurice Stierl shows in his work that some civil society actors, however, have reshaped the traditional conception of humanitarianism by founding it upon a politics of solidarity with migrants. [14] This means, inter alia, understanding humanitarianism as inherently political, leading to a solidarity-based project of challenging oppressive migration policies, and even supporting those who are deemed illegal.[15]
Despite the existing critiques of the failures of EU law, the existing proposals under the New Pact on Migration and Asylum do not show promising avenues that would consolidate solidarity with migrants. Indeed, perhaps one of the most controversial proposals is the creation of a new form of ‘solidarity’ through return sponsorships. Under this form of ‘solidarity’, Member States would have to support each other for returning migrants to their original or transit countries.[16] In other words, the idea is to “return migrants collectively”, which goes directly against the idea of acting in solidarity with migrants.
3. Solidarity and the 2015/2016 ‘Crisis’
2015 marked an unprecedented refugee ‘crisis’, which led more than a million people to cross the Mediterranean in an attempt to find solace in Europe, with many dying at sea.[17] This influx of migrants was triggered especially by the Syrian conflict, which generated 3.9 million refugees and left many more needing support inside the country.[18]
Many have argued that, since the 2015-2016 events, the EU has been undergoing a solidarity crisis which has largely remained unanswered.[19] The reluctance of Member-States to take in refugees, as well as a “detain and deport strategy”[20] are at the heart of this problem. Before being given the chance to apply for asylum, many migrants were returned to their countries of origin or to transit countries following their detention in centres which lacked basic living conditions.[21] For most of them, return implied life-threatening risks. In this sense, forcing them to do so was a clear violation of the non-refoulement principle.
This was followed by the 2018 disembarkation crisis, in which migrant solidarity was again dismissed by many Member States and the EU.[22] Many civil society actors undergoing Search and Rescue (SAR) operations were targeted through processes of criminalisation, and Italy and Malta actively stopped boats from disembarking migrants at their harbours.[23]
More generally, since 2015 developments, many civil society actors actively stepped in where Member States’ policies did not show sufficient solidarity with migrants, be it through SAR operations, disembarkation procedures or legal assistance.[24] While this assistance has proved to be crucial, it also validated and perpetuated Member States’ inaction and restrictive policies. This poses the question of whether civil society assistance is truly beneficial in the long term, or if it is only fixing problems momentarily.
On the one hand, sturdy and durable measures which offer solutions for migrants regarding disembarkation, housing, employment, and education cannot be achieved without the cooperation of the countries they will reside in. On the other hand, however, the cooperation between civil society actors and institutional actors is a highly delicate question, considering the lack of the latter’s political willingness, at least when it comes to persons displaced from Middle Eastern and North African countries. Collaborative initiatives in such context risks (re-)producing patterns of complicity with restrictive policies rather than fundamentally change them.
This is even more worrisome when considering that the 2020 proposals under the New Pact on Migration and Asylum do not bring much hope for a better future, showing once again the lack of political willingness to establish or consolidate a migrant-based solidarity on the institutional level. The Pact has been heavily criticized for its increased focus on border security and detention, as well as a strong emphasis on return. Again, the EU seems to have failed to put migrant-based solidarity at the centre of its policymaking.
4. The Russo-Ukrainian war: what has changed?
In 2022, the Russo-Ukrainian war has created a new large-scale influx of migrants, and the European approach has been different from any previous strategies. The 2001 Temporary Protection Directive has been triggered for the first time in a situation considered as fulfilling the vague definition of ‘mass influx’. This instrument allows granting protection for a period of one year, with the possibility of extending it up to a maximum of three years. Notably, it recognizes a vast range of migrant rights, such as access to employment, housing, social welfare, and education, amongst others (articles 12-15).
Solidarity is explicitly addressed in the Directive. According to article 25, “the Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity”. This provision is based on an understanding of solidarity that privileges reception of displaced persons and not their return. The Directive “found ‘broad support among EU home affair representatives”[25], and its activation was decided unanimously.[26] This stands in contrast with other situations of violence and war, such as the ones in Afghanistan and Syria, when the Directive was not triggered despite many calls for activating it.
Moreover, States which usually have tighter migration policies, like Poland and Hungary, have maintained ‘open and welcoming borders’ for Ukrainian refugees, according to the UNHCR.[27] Such a contrasting modus operandi raises questions regarding the ‘real’ motivation behind the activation of the temporary protection mechanism. Considering both the Directive and the Council Decision to activate the TP regime, a comparison with the previous ‘crises’ points to the structural racism which fosters discrimination in EU asylum policy. [28] This is also visible when border procedures diverge according to whether asylum seekers coming for Ukraine are nationals of the country or not.[29]
In light of an institutional response driven by an idea of solidarity with displaced persons, the impact of civil society actors, although present, has been seen as less controversial in the context of the Russo-Ukrainian war as it was in previous emergencies. In this sense, the selective application of different meanings of solidarity in relation to various migration ‘crises’ in the EU also shows different approaches to civil society actors.
5. Conclusion
The different meanings and uses of solidarity cautions against the assumption that solidarity carries a universal and unique meaning. It also shows how important it is to increase awareness of its various meanings and uses, since these have a significant impact on the way in which both displaced persons and civil society actors are treated.
Under restrictive migration policies (“detain and deport” strategies), coupled with a (failed) conception of solidarity that sought to remedy to the failures of the Dublin III Regulation, civil society actors have been approached with extreme reluctance. This was not the case in the context of the Russo-Ukrainian war, which has been more shaped by the idea of solidarity with migrants stemming from the Temporary Protection Directive. Such differences have direct consequences on the lives of displaced persons.
Today, important differences persist between the treatment of white and Christian displaced persons and the ‘others’. As such, the assistance provided by civil society actors cannot be the only solution to this differential treatment in the long run. While it is crucial for stepping in where institutional actors fail to do so, it also reinforces institutional inaction and restrictive policies. In 2022, the European Union stands at a crossroads in the history of its migration policy. Its response to the Russo-Ukrainian war must be seized as an opportunity to look critically at EU’s past choices, review them, and actively work in the direction of a politics of solidarity with migrants.
HOW TO CITE:
C. SILVESTRE, “The Principle of Solidarity in EU Law: Some Considerations Regarding Migration Policy and Civil Society”, NOVA Refugee Clinic Blog, June 2022, available at <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-principle-of-solidarity-in-eu-law-some-considerations-regarding-migration-policy-and-civil-society>
[1]Student at NOVA School of Law, Research Assistant and NOVA Refugee Clinic (Migration & Civil Society).
[2]Peter Hilpold, “Understanding Solidarity Within EU Law: An Analysis Of The ‘Islands Of Solidarity’ With Particular Regard To Monetary Union”, Yearbook Of European Law 34, no. 1 (2015): 257–285.
[3]Barbara Jones, “EU Common Policy On Asylum, Irregular Migration And External Border Control And Solidarity Between Member States”, in Solidarity And Protection Of Individuals In E.U. Law – Addressing New Challenges Of The Union, 1st ed. (Torino: G. Giappichelli Editore, 2017), 203-2018.
[4]Luisa Marin, Simone Penasa and Graziella Romeo, “Migration Crises And The Principle Of Solidarity In Times Of Sovereignism: Challenges For EU Law And Polity”, European Journal Of Migration And Law 22 (2020): 1-10.
[5]Hilpold, Peter. “Understanding Solidarity Within EU Law: An Analysis Of The ‘Islands Of Solidarity’ With Particular Regard To Monetary Union”, Yearbook Of European Law 34, no. 1 (2015): 257–285.
[6]Wouters, Jan. “Revisiting Art. 2 TEU: A True Union Of Values?”. European Papers 5, no. 1 (2020): 255-277.
[7]Directorate-General for Internal Policies – Policy Department: Citizen’s Rights and Constitutional Affairs. THE IMPLEMENTATION OF ARTICLE 80 TFEU On The Principle Of Solidarity And Fair Sharing Of Responsibility, Including Its Financial Implications, Between The Member States In The Field Of Border Checks, Asylum And Immigration. Brussels: European Parliament, 2011.
[8]EPRS | European Parliamentary Research Service, The Need For Solidarity In EU Asylum Policy (European Union, 2020).
[9]Peter Hilpold, “Understanding Solidarity Within EU Law: An Analysis Of The ‘Islands Of Solidarity’ With Particular Regard To Monetary Union”, Yearbook Of European Law 34, no. 1 (2015): 257–285.
[10]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), 2013.
[11]Migration Policy Centre, European University Institute, EU Asylum Policy: In Search Of Solidarity And Access To Protection (Florence, 2015).
[12]Ibid.
[13]Stierl, Maurice. “A Fleet Of Mediterranean Border Humanitarians”. Antipode, 2017, 704-724. https://onlinelibrary.wiley.com/doi/10.1111/anti.12320.
[14]Ibid.
[15]Ibid.
[16]New Pact On Migration And Asylum, 2020.
[17]Barbara Jones, “EU Common Policy On Asylum, Irregular Migration And External Border Control And Solidarity Between Member States”, in Solidarity And Protection Of Individuals In E.U. Law – Addressing New Challenges Of The Union, 1st ed. (Torino: G. Giappichelli Editore, 2017), 203-2018.
[18]Migration Policy Centre, European University Institute, EU Asylum Policy: In Search Of Solidarity And Access To Protection (Florence, 2015).
[19]EPRS | European Parliamentary Research Service, The Need For Solidarity In EU Asylum Policy (European Union, 2020).
[20]Barbara Jones, “EU Common Policy On Asylum, Irregular Migration And External Border Control And Solidarity Between Member States”, in Solidarity And Protection Of Individuals In E.U. Law – Addressing New Challenges Of The Union, 1st ed. (Torino: G. Giappichelli Editore, 2017), 203-2018.
[21]Ibid.
[22] EPRS | European Parliamentary Research Service, The Need For Solidarity In EU Asylum Policy (European Union, 2020).
[23]Ibid.
[24]Stierl, Maurice. “A Fleet Of Mediterranean Border Humanitarians”. Antipode, 2017, 704-724. https://onlinelibrary.wiley.com/doi/10.1111/anti.12320.
[25]Sergio Carrera et al., “The EU Grants Temporary Protection For People Fleeing War In Ukraine – Time To Rethink Unequal Solidarity In EU Asylum Policy”, CEPS Policy Insights, 2022, https://www.ceps.eu/ceps-publications/eu-grants-temporary-protection-for-people-fleeing-war-in-ukraine/.
[26]Ibid.
[27]Ibid.
[28]Ibid.
[29]Ibid.