EU asylum policies: the power of strong regulating states

Posted:
25 April, 2017

European Union asylum policies are currently one of the most controversial areas of EU policy-making. This became particularly obvious in 2015/2016 when the EU proved unable to respond adequately to the inflow of over a million refugees and clearly failed to introduce fair and durable responsibility-sharing mechanisms.

Yet, EU asylum policies remain heavily under-theorised and we know little about the dynamics that drive its decision-making.

In my new book, I attempt to close this gap, as well as trying to explain the lack of capacity of the EU to respond to the 2015/2016 inflow. I argue that the 2015/16 “crisis” was caused not by the unprecedented inflow itself; rather it simply exposed the existing imbalance in influence between what I term strong and weak regulating states, and the weaknesses this created in the implementation of asylum policies.

Why EU asylum policies do not represent the lowest common denominator

The book addresses a key empirical puzzle of research into EU asylum policy-making. Scholars have so far expected EU asylum policies to represent the ‘lowest common denominator’ – ie the most restrictive policy – among EU Member States. Based on the so-called ‘venue-shopping argument’ (Guiraudon 2000), they expected restrictively-minded interior ministers to use these lowest common denominator standards to downgrade protection standards for asylum seekers in their own countries. This was expected to entail a race to the bottom, i.e. a deterioration of refugee protection standards across Europe.

However, this has not come about. Instead, domestic transposition studies show that Member States often maintained their previous policies after transposition of EU legislation, or even upgraded them to meet the EU-level requirement (cf. Odysseus 2006; Thielemann and El-Enany 2011).

The book finds that EU asylum policies in fact represent the lowest common denominator of only a group of Member States which I refer to as ‘strong regulators’. While all Member States try to influence EU policy-making to avoid costly policy change, strong regulators are particularly effective in doing so. Weak regulators have been consistently overruled in EU asylum policy-making. Domestic transposition is characterised by policy stasis. This is because – in contrast to the venue-shopping argument – Member States have a strong preference for the status quo. Strong regulators have effectively influenced EU policies and hence face little pressure to change their policies. Weak regulators who have not been able to influence EU legislation do not transpose EU policies due to their weak administrative capacities.

Strong and informed positions as a key power differential in EU negotiations

Theoretically, the book draws on the so-called ‘misfit and regulatory competition’ literature (Héritier 1996, 1997; Börzel 2002; Eichener 1992, 1997). This literature suggests that in the areas of EU environmental and social policies, a group of Member States –‘strong/high regulators’ – is most effective during legislative negotiations. I apply this argument to EU asylum policies and further develop it filling in two gaps left by scholars. First, I systematically establish which Member States are strong regulators and which are weak. Second, I flesh out the causal mechanism that explains why and how strong regulators are more effective in influencing EU legislation.

I find that two factors are crucial for being a strong or a weak regulator: first, having an effective administration enables a Member State to tackle an issue and develop and enforce pertinent regulation in general. Second, being faced with the issue, i.e., in this case, receiving large numbers of asylum applications, enables effective administrations to build substantial expertise in the area of asylum.

So, Member States with effective administrations and a high degree of ‘exposure’ to a phenomenon will build strong regulation domestically. Member States with ineffective administrations will not built strong regulation, even if they receive large numbers of applications. These weak regulating Member States will be overwhelmed by high numbers of asylum applications. Member States with effective administrations and low numbers of applications are medium regulators. These states could easily build regulatory expertise, if they received higher numbers of applications. I operationalise having an effective administration through the World Bank Government Effectiveness Indicator in the year when negotiations began (Kaufmann, Kraay and Mastruzzi 2010) and ‘exposure’ through the total amount of asylum applications a Member State received ten years prior to negotiations (Eurostat 2013).

While strong and weak regulation represent a continuum and it is difficult to categorise Member States exactly, countries such as Germany, the United Kingdom, the Netherlands, Sweden and France are on the strong regulating end, while Portugal, Greece and Italy are clearly weak regulators. Member States such as Austria, Belgium, Finland, Luxembourg and Ireland can be considered medium regulators.

As regards the second gap, I find that strong regulators are more effective in influencing EU asylum policies due to the intensity and the quality of their positions. The underlying causal mechanisms are as follows: for Member States with high numbers of applications, asylum issues are particularly salient. The effective administrations of strong regulators translate salience into strong (intense) positions on which they are not ready to compromise. For weak regulators the issue is not salient due to the low numbers of applications. Yet, even if they received higher numbers of applications, their ineffective administrations would not translate this salience into strong bargaining positions. At the same time, strong regulators have a lot of expertise domestically anyway (due to their capable administrations and high numbers of applications). Their effective administrations are able to translate this expertise into qualitatively good and informed positions and arguments. Both intensity and quality of positions are, of course, two sides of the same coin: it is easier to defend informed positions vigorously than to defend vaguely defined ones or non-positions.

Explaining the ineffectiveness of EU asylum policies in times of crisis

The book shows that the so-called European refugees crisis cannot be explained by the – albeit unprecedented – inflow of refugees in 2015. Instead, this inflow highlighted long-standing problems of EU asylum policies. Strong regulators had tried to impose their policies on weak regulators to achieve a more even distribution of refugees and prevent secondary movements of asylum-seekers due to the often poor asylum systems in weak regulating states.

While weak regulators had adopted all policies required by EU legislation on paper, their weak administrations impeded the effective implementation of these policies in practice. This can explain why countries such as Greece and Italy, but also Member States that acceded to the EU more recently, were overwhelmed by rising numbers of applications and even now have asylum systems in place that do not provide protection and social rights, such as access to welfare, to asylum-seekers and refugees. Obviously, imposing the introduction of more effective asylum systems on weak regulators at the very time when these countries were becoming the top recipients of asylum-seekers was doomed to fail. Therefore, ideas for reforming EU asylum policies need to account for the variance in capacity among Member States. The idea of replacing the Dublin regime with a permanent, capacity-based, quota system was a step into the right direction. However, due to a continued resistance among Member States to potentially receiving greater numbers of asylum-seekers, the likelihood of such a capacity-based distribution mechanism is currently receding.  

EU Asylum Policies: The power of strong regulating states is published by Springer. 

Bibliography

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Odysseus (2006) Comparative Overview of the Implementation of the Directive 2003/9 of 27 January Laying Down Minimum Standards for the Reception of Asylum-seekers in the EU Member States. Brussels. October 2006. Available at http://ec.europa.eu/dgs/home-affairs/e-library/docs/pdf/odysseus_synthes... (accessed June 2014).

Thielemann, E and N El-Enany, N. (2011) 'The Impact of EU Asylum Policy on National Asylum Regimes'. In Wolff, S/F Goudappel and J de Zwaan (eds) Freedom, Security and Justice after Lisbon and Stockholm. The Hague: Asser Press, 97-115.

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About the author(s)
Natascha Zaun
Junior Research Fellow in Global Refugee Policy