Pushing Borders

von Maximilian Steinbeis

Dear Friends of Verfassungsblog,

In the UK, the electorate refuses to take the responsibility for the Brexit decision off the Tories' shoulders. In the US, Donald Trump gyrates towards impeachment, the outcome uncertain. In Spain, the Catalan referendum on October 1st will push the country to the brink of a constitutional crisis. In Poland, the legislative officially decides to subjugate the judiciary. These are trying times, and there is certainly no lack of highly topical Matters Constitutional. For today, however, I want to start with a topic supposedly of the past but nevertheless both legally and politically as present as can be: the refugee crisis in late summer, autumn and winter 2015/16.

Attorney General at the CJEU Eleanor Sharpston has published an opinion this week on two cases which go to the core of this unprecedented crisis. Appellants are a Syrian and an Afghan family who had applied for asylum in Austria and Slovenia. There, the authorities referred them to Croatia as the place where they had crossed the EU’s external border and therefore had to seek protection (Article 13 (1) of the Dublin III Regulation). They had not, however, because Croatia just "waved them through" along with the vast majority of refugees, westwards.

Should the states of Central and Northern Europe 2015/16 have insisted on leaving the responsibility for the protection of refugees to the states at the external frontier? That is the question raised by this case, and AG Sharpston’s reply is: No.

What happened in the West Balkans in 2015/16 was, according to the Attorney General, "the greatest mass movement of persons across Europe since World War II." This was not what the rules of responsibility distribution in the EU were made for. The EU asylum system is built for protection-seeking dissidents stepping out of planes, not hundreds of thousands of visa-less desperates in dinghies ...

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