Waiting (and Paying) for Godot: Analyzing the Systemic Consequences of the Solidarity Crisis in EU Asylum Law

Abstract

Abstract What is left of the principle of solidarity in the context of EU asylum law? The aim of this article is to analyze the follow-up of the solidarity crisis the EU has experienced with the failure of relocation schemes. Relocation schemes have tried to alleviate the consequences of the so-called migration crisis of 2015–2016, but did not prove to be successful, because of the low relocation rates, in addition to open contestation by states of the Visegrad group. Against the background of the stalemate of the reform of the Dublin Regulation, the article analyzes ‘measures’ adopted after the failure of relocation schemes, focusing in particular on administrative arrangements to counter secondary movements and ‘ad hoc’ temporary disembarkation schemes. Both measures are aiming at fixing longstanding questions (e.g., limiting secondary movements, providing safe disembarkation for irregular migrants): in the first case, States proceed at bilateral level with arrangements creating fast-track returns and stopping secondary movements; in the second case, the EU is trying to support states’ arrangements for disembarkation of migrants after SAR operations. The article shows that, while reforms of legislative instruments are not progressing, Member States and, to some extent, also EU institutions are going down the lane of ‘operational and informal arrangements’, which are ‘bricolage solutions’ to counterbalance undesired effects of the status quo, while waiting for structural solutions that are necessary but not in sight. The article discusses the dangers of such a trend toward informal operational solutions, as a challenge to the EU as a system of governance based on the rule of law.