Given that issues related to asylum and migration touch upon state sovereignty, the founding Treaties of the European Communities (EC) did not comprise any rules aimed at the ceding of competences from the national to the supranational level. The main objective of the 1957 Treaty of Rome, which established the European Economic Community (EEC), involved the creation of a Single European Market based on four fundamental freedoms of movement.
Intergovernmental cooperation in the field of asylum and migration was, however, slowly established from the mid-1970s.
The first instance of this was the TREVI Group, established during the European Council Summit in Rome in 1975, in order to fight terrorism and coordinate police cooperation on terrorism. The Group’s work was based on intergovernmental cooperation between the EEC’s 12 member states, excluding the Commission and the Parliament. A subsequent instance of intergovernmental cooperation in this field involved the ‘Ad Hoc Group on Immigration’ set up in 1986 to coordinate member states’ national asylum and migration policies, a goal which nonetheless proved too ambitious (McMahon, 2015).
In view of the increasing number of intergovernmental groups dealing with issues related to the free movement of persons, it was decided at the 1988 European Council meeting in Rhodes to establish a ‘Group of Coordinators’ consisting of senior national civil servants, including the Commission as an observer. In 1989, the Group drew up the ‘Palma Document’ which advocated a more harmonised approach to various aspects of cooperation in the area of justice and home affairs, particularly in terms of management of the external borders. The Document signalled the beginning of a shift from ad hoc interstate cooperation to a more formalised and coherent framework (Boccardi, 2002).
EU cooperation in the field of asylum and migration was further influenced by the adoption of three European legal instruments: the Single European Act (SEA), the Schengen Agreement, and the Dublin Convention. The Single European Act (1986), which represented the first major revision of the 1957 Rome Treaty, aimed to amend the rules governing the operation of the European institutions and expand Community powers. The main driving force behind the adoption of the Act is found in Article 8A, which sets out the objective of establishing a single market by 31 December 1992, defined as:
an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.
This objective, therefore, implied the abolition of controls for persons at the internal borders between member states, calling for harmonisation of border controls at the EEC’s external borders including legislation concerning asylum and migration (EAC, 2012). Although the SEA introduced some changes in competences in its new Article 100a, providing for the use of quality majority voting (QMV) in the Council, provisions relating to the free movement of persons were deliberately omitted. This was a clear sign of member states’ will to preserve their sovereignty in those matters where unanimity remained the rule for the adoption of measures as well as to continue to cooperate in an intergovernmental framework.
The Schengen Agreement, signed in 1985 initially by only 5 EC member states, led to the creation of the Schengen Area in 1995, which resulted in the gradual abolishment of border checks at the common borders of most member states. This, however, led to concerns of irregular secondary movements of migrants and multiple asylum applications in more than one member state. Thus, by facilitating internal mobility for EU citizens, Schengen also enabled third-country nationals (TCNs) to move freely within the borderless area. Consequently, this led to the creation of the Dublin Convention in 1990 which laid down the criteria and procedure for determining the member state responsible for examining an asylum application lodged in one of the EU member states, in most cases the state of first entry.
In practice, Dublin aimed at averting situations of ‘asylum shopping’ (migrants applying for asylum in more than one member state) and ‘asylum seekers in orbit’ (the continuous transfer of asylum seekers between member states in an attempt to avoid accepting responsibility). Despite being one of the most significant agreements signed on an intergovernmental level in the field of asylum and migration, Dublin has been widely criticised since its inception as being inequitable, dysfunctional and expensive. The most frequently cited criticisms claim that it has shifted asylum responsibility onto those member states located on the external borders, due to its ‘state of first entry’ rule, and has undermined asylum seekers’ rights (Di Filippo 2016; Fratzke 2015).
BOCCARDI, I. (2002) Europe and Refugees: Towards an EU Asylum Policy. The Hague: Kluwer Law International.
DI FILIPPO, M. (2016) Dublin ‘reloaded’ or time for ambitious pragmatism? Odysseus Network Blog, 12 October. Available from: http://eumigrationlawblog.eu/dublin-reloaded/
EUR-Lex, Access to EU Law: https://eur-lex.europa.eu/homepage.html
FRATZKE, S. (2015) Not Adding Up: The fading promise of Europe’s Dublin System, Brussels: Migration Policy Institute (MPI) Report, March. Available from: https://www.migrationpolicy.org/research/not-adding-fading-promise-europes-dublin-system
McMAHON, S. (2015) Regional integration and migration in the European Union. In: TALANI, L. S. and McMAHON, S., (eds.) Handbook of the International Political Economy of Migration. Cheltenham/Northampton, MA: Edward Elgar Publishing, pp. 285-303.