Freedom of movement under European conditions

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of PLC.

Josefa Foundation

Freedom of movement is one of the main achievements of the EU. So why doesn’t it apply to refugees living in Europe? A mutual recognition of countries’ asylum decisions is urgently needed, Gilbert Granjon writes.

Gilbert Granjon is co-founder of the Josefa Foundation, founded to address, with other actors, the refugee reception crisis in Europe.

Mutual recognition of refugee status granting decisions would be an important and meaningful step for building further the European Common Asylum System and ensure the application of a uniform status for all beneficiaries of international protection. This was called for by the 2009 Stockholm Programme in the area of Justice and Home Affairs. The programme has now been replaced by new JHA Strategic Guidelines for the next five years, adopted at the recent European Council of 26 and 27 June 2014.

Fluid intra-EU mobility of persons (freedom of movement) represents one of the main achievements of the building of the EU. That’s despite its two-step approach through the Schengen system (Bulgaria and Romania are not yet fully in) and also despite the fact that EU member states were recently able to re-introduce the possibility of limiting the free circulation of persons at times of challenges to the public order (by reinstating border controls for some limited time). These limitations were allowed in the system, right after the times of the so-called “Arab Spring” that prompted dozens of thousands of Tunisians and other North and West Africans to reach Italian shores at Lampedusa and who then headed on to France and other Northern countries. This triggered a wind of political and to some extent public panic, prompting some member states to request for waivers to the EU principle of freedom of movement of persons. These were ultimately theoretically obtained, but not implemented as of yet since the Commission’s approval is needed in such case before any implementation.

Yet, this freedom of movement and more importantly, the freedom of establishment enacted under Article 49 of the Treaty on the Functioning of the EU, are realities which apply to almost all of us European citizens, including non-European legal residents, and which are not made available to the approximately 1.5 million refugee persons legally residing in the EU’s 28 member states, nor to the 250,000 yearly newly recognized refugees in the EU. The latter are by way of their refugee status and in compliance with the Directive on Qualification, granted long-term residency. This residency is however restricted to the national territory where their asylum claims have been positively processed. But often times for these persons, these are not countries of first choice or priority as destination places.

It may indeed be difficult to accept and understand that a refugee person who finds it fully inadequate to live in Poland because all of his or her family live in the Netherlands, should not be able and allowed to live where his or her life would be more meaningful, and where his or her integration potential would be maximized. Likewise, a refugee who lives in Lithuania but who could find a decent job in the UK because his skills and talents are required there should also be able to move and settle there, as other EU citizens can do.

For now, refugees have to wait to become non-refugee long term residents or even to become naturalized in their asylum country, before they can fully benefit from the right of establishment within the EU.

For the Common European Asylum System to become a reality of the 21st century, a system of mutual recognition of refugee status granting decisions must thus be thought of and put in place. There may be legitimate concerns of states that such a right, once accorded, would attract many refugee persons into just a few destination countries where economic conditions seem to be more attractive, thus definitely shifting the responsibility-sharing arrangements that states are trying to aim at when it comes to processing the asylum applications. These concerns must be taken seriously as the building of a CEAS should be based on the principle of fairness and equality for all, including for host states.

Such fears could be counteracted by integrating some cautious regulatory and progressive approaches into a possible mutual recognition system. One could consider for example that, in a first stage, only refugee persons with close family links and ties as well as those with real and concrete job opportunities elsewhere be allowed to move and settle in another EU country. The transfer of protection responsibilities would then be meaningful and fair to the person but also to the sending and receiving states. For the sending state, because a person with a low integration potential and low motivation to remain would leave the country, and the destination state because a person with high potential and motivation would join the society.  This would seem like a win-win situation for all and at many levels.  Likewise, a system of progressive transfer of protection responsibilities could be elaborated between the first and the second host state. An in-depth feasibility could be undertaken to this effect.