The EU's principle of solidarity and asylum policy
The principle of solidarity among member states of the EU is enshrined in Article 80 of the Treaty on the Functioning of the European Union (TFEU). The article is most commonly referenced with regard to issues of financial solidarity among member states, as has been evident in discussions on the Eurozone crisis during the last decade, or in relation to regional development policies and related funds transferred from the EU to specific regions of specific member states.
This article is also of significant relevance when it comes to asylum policy. It has in fact been implemented through secondary EU law, most notably the Dublin Regulation.
The main principle of the Dublin regulation is the so-called safe third country principle.
According to this principle asylum seekers should apply for protection in the first safe country that they enter. Thus, in the case of the EU, the first safe country is the first member state where an asylum seeker sets foot.
This principle gives great precedence to geography and makes member states located on the edge of the EU more exposed to asylum arrivals than those countries that are further away from asylum seeker producing regions.
So, if a person enters a member state, say, Italy and then moves to, say, the Netherlands, and files her/his application there, Dutch authorities can and should return this person to Italy to have her asylum claim examined there, on the basis of the aforementioned first safe country principle.
The Dublin Regulation presumes that there is a common set of standards and procedures observed in the asylum systems and procedures of all member states. Since its first implementation in 1990, it has therefore aimed to establish a level playing field and clear regulations regarding the examination of asylum cases.
However, many lawyers and civil activists have argued that the present system of allocation of competences and responsibilities between Member States on asylum manifestly infringes the principle of solidarity, because responsibility is imposed according to the manifestly inadequate criterion of geography, with no mechanisms in place to ensure the reallocation of responsibilities among Member States.
On this basis, one may conclude that the key elements of the Dublin Regulation are against the provisions of the TFEU, as there are no functional mechanisms to ensure a proper allocation and reallocation of responsibilities among states, which results in overloading the capacity of some Member States (especially those on its southern borders), leads to an inadequate protection of the rights of refugees, and eventually compromises free movement inside the EU - an ‘area without internal frontiers’.
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