The Allocation of Competences in Migration and Asylum Matters: Lessons from Recent European Experience

Gerard Conway

The refugee crisis in Europe, prompted by the civil war in Syria in particular, has prompted questioning of the adequacy of the existing regime of coordinating migration and asylum rules at European level, but has also raised tensions within Member States, especially federal Member States. The refugees crisis in the Mediterranean, primarily resulting from the civil way in Syria, but also from political problems in other Middle Eastern and North African States, has led to the largest mass migration in recent European history. At European level, the regime governing migration and asylum in the EU is a more recent aspect of integration, beginning at intergovernmental level and then undergoing gradual, but not complete, supranationalisation, as reflected in Article 78(3) TFEU. The Council of Europe has also developed a parallel though less extensive and more voluntary or intergovernmental set of legal norms alongside principles of good practice. Difficulties in achieving agreement at EU level on how to respond to the recent refugee crisis and especially on the issue of a fair distribution of the cost and burden of accepting refugees as long-term migrants has prompted both calls for greater European integration and for a recognition of the unreality of seeking a uniform approach across very divergent Member States. Within Member States, responses to the crisis have promoted tension between the federal and regional levels, especially in Germany. This paper examines what this recent European experience and empirical data suggest about the appropriate allocation of competence between regional a national and European levels and, in particular, whether best practice can be identified in the experience of federal States and at European level regarding both policy and the appropriate legal mechanisms of cooperation.

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