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Hungary and Slovakia challenged Europe’s refugee scheme. They just lost badly.

- September 8, 2017

On Wednesday morning, the European Court of Justice turned down a challenge brought by Hungary and Slovakia against the European Union’s mandatory refugee relocation scheme. This is a big deal — the E.U. has had to manage an influx of over 1 million displaced people since 2015. Mediterranean E.U. states such as Greece and Italy faced a particularly big burden since they were often the countries where refugees first arrived. This is why the E.U. established new rules that required each member state to accept a quota of refugees in September 2015.

The plan was initially supposed to transfer approximately 120,000 refugees from Greece and Italy to Central and Western Europe. However, key East European member states, including Hungary and Slovakia, forcefully opposed this decision from the get-go. They voted down its initial adoption in the European Council, resisted its application and brought legal challenges before the E.U.’s highest court. Hungary even held a national referendum on the matter — although the low turnout invalidated the outcome of the vote. Wednesday, the E.U.’s highest court provided a final judgment rejecting these challenges and opened the door for significant refugee burden-sharing.

The relocation scheme was introduced over East European objections

The Council of the European Union put the relocation scheme in place in September 2015 at the height of the refugee influx. The system was approved without the agreement of all member states. In addition to Hungary and Slovakia, Romania and the Czech Republic voted against the quota system but found themselves being overruled by a supermajority of E.U. member states. Since then, it has been subjected to legal challenges.

Opposing states feared a loss of sovereignty — but were also xenophobic

This wasn’t just a fight over numbers — it was initially likely that Hungary would have fewer refugees under the proposed system. Instead, Hungary and Slovakia feared that the mandatory quota system threatened their sovereignty, their ability to fully control their borders, and their ability to maintain their nations’ ethnocultural identities.

The court case — which focused on procedure — has been accompanied by highly charged propaganda from Hungary’s and Slovakia’s political leadership, which is driven in part by the rise of the far right across Eastern Europe. Hungary’s ruling right-wing Fidesz party used xenophobic material to campaign for a “no” vote in the lead-up to Hungary’s refugee quota referendum, implicating migrants in recent terrorist attacks and in the harassment of European women. Several other prominent parties, including the Christian democratic KNDP and the far-right Jobbik Party actively supported the campaign. Slovak Prime Minister Robert Fico has vowed to never allow a single Muslim into Slovakia.

While Poland initially voted in favor of the relocation plan in September 2015, the country’s politics shifted dramatically rightward following the October 2015 election of Law and Justice (PiS). When Hungary and Slovakia challenged the quota system, Poland supported their case. This past July, Jaroslaw Kaczynski, head of the PiS, claimed that Poland had a “moral right” to reject incoming refugee populations.

The ECJ has strongly rejected the challenge

Hungary and Slovakia asked the ECJ, the E.U.’s highest court, to annul the decision on refuge sharing. Other E.U. member states piled in on both sides. Poland intervened to support Hungary and Slovakia in their challenges to the quota system, while several South European, Central European and North European states (Greece, Italy, Germany, France, Belgium, Luxembourg and Sweden) intervened alongside the E.U. commission to support the mandatory relocation scheme.

Hungary and Slovakia argued that the European Council had failed to follow proper E.U. legislative procedures, which require the consent of other key E.U. and sometimes national decision-making bodies. However, the court ruled that the scheme was justifiable as an emergency measure given the urgency of the situation. The court also rejected the argument that the burden-sharing system was an inappropriate response to the problem.

Refugees may not want to settle in Eastern Europe anyway

In our own research, we examine how well the E.U.’s resettlement plans reflect the wishes and desires of refugees and migrants. We find that migrants and refugees talk and dream of Germany first and foremost, and have little familiarity with, or hope for, resettling in other Western E.U. states, let alone Eastern E.U. states such as Hungary or Slovakia.

The table below contrasts the most recent E.U. resettlement quotas with the frequency of countries mentioned by asylum seekers in the Internews database. The NGO Internews conducted over 8,000 interviews with displaced persons across Greece. Their data shows more references to Germany than to the next nine E.U. states combined. Hungary is mentioned only 15 times in the Internews database; Slovakia is never mentioned at all. Refugees have inflated expectations of Germany, and the few refugees aware of East European destinations are particularly concerned about anti-immigrant sentiment.

In contrast, the European scheme is based on more objective factors such as population and the capacity to take in displaced persons. Whereas Germany leads the E.U. list, followed by France, the next designated European relocation destinations — Spain and Poland — are almost absent from refugees’ wish-lists. Hungary and Slovakia are absent from both top 10 lists.

The discrepancy between E.U. plans and displaced persons’ hopes and dreams suggests that international bodies, governments and aid agencies could do a better job informing refugees of resettlement options.

What happens next?

The ECJ’s decision is final; it cannot be appealed. If member states comply with the ruling, this has immediate consequences for about 100,000-200,000 refugees currently stuck in refugee camps throughout Greece and Italy, as the pace of relocation is likely to pick up.

More broadly, this ruling sets a major precedent for the principle of burden sharing, a principle the U.N. refugee agency, academics and many others have long supported, but one poorly reflected in current laws such as the 1951 Refugee Convention and the European Union’s Dublin Regulations, both of which effectively lay the burden of commitment on the first country asylum applicants reach.

Burden sharing has long been advocated by academics and international bodies. This is because the countries nearest refugee crises tend to be poor and lacking in capacity themselves. For example, Lebanon and Jordan host the largest number of refugees per capita, while in terms of relative economic performance, South Sudan and Chad shoulder the largest financial burden of hosting refugees. Establishing a firm legal basis for refugee burden sharing, if only within the European Union, begins the process of recognizing that rich developed states too should take on the challenging task of refugee resettlement and integration.

Katerina Linos is a professor of international and E.U. law at the University of California Berkeley School of Law, and recently won a Carnegie fellowship to study the European refugee crisis.

Laura Jakli is a political science PhD candidate at UC Berkeley researching xenophobia and the rise of far-right politics in Europe.

Melissa Carlson is a political science PhD at UC Berkeley candidate focusing on the study of humanitarian crisis response, migration, and irregular conflict. She just completed hundreds of interviews with refugees and migrants in Greece and Jordan.