The year 2015 represented a breaking point in the asylum and forced migration governance in Europe. Different international organisations, from the United Nations High Commissioner for Refugees (UNHCR), to the International Organisation for Migration (IOM) as well as the European Border and Coastguard Agency (Frontex) identified significant movements of refugees fleeing towards Europe unprecedented in the 21^st century. These movements were soon dubbed in the public discourse as a ‘migrant crisis’. Yet this discourse changed in the media after the body of a three-year-old refugee boy washed ashore in Turkey. The boy was in a boat trying to reach the EU via the dangerous Mediterranean waters. After the photo of this little boy’s body went viral on social media, there was no more talk of a migrant crisis, but of a ‘refugee crisis’. The tragic event pointed to something else that many activists and scholars have been arguing about: the 2015/16 refugee crisis was not a crisis caused by refugees. It was a crisis in which different EU Member States showed their incapability to live up to the EU fundamental rights standards for refugees, they have themselves created, on one hand. On the other hand, after this event Europe witnessed unparalleled cooperation between EU and non-EU states manifestly inspired by humanitarianism and solidarity with forced migrants: the Western Balkan route.

Although there were many different migrant routes active before 2015, the way the Western Balkan route operated between the summer of 2015 and the spring of 2016 was unique. Before 2015, forced migrants mostly took extremely dangerous routes crossing the Mediterranean Sea to reach Italy and the EU. In April 2015, around 800 forced migrants drowned in a shipwreck just off the Libyan coast. This was just half a year after the Italian ‘search and rescue’ Mare Nostrum operation was replaced by the Frontex border surveillance operation Triton. After the April Shipwreck, the European Commission (EC) introduced the EU Agenda on Migration and Operation Sophia. The main objective of Operation Sophia was to intercept and destroy the assets (i.e. boats) that human smugglers used for crossing the Mediterranean. Operation Sophia did have a side effect: it turned most refugees and migrants away from the human smugglers on the Mediterranean route, but also re-routed their path via the Western Balkan route to a much larger extent. The Western Balkan route was special, because from September 2015 to March 2016, it was the countries on this route which facilitated the transport of forced migrants towards the most desirable destinations rather than  human smugglers. While the European Commission welcomed such cooperation between EU states in September 2015, in the summer of 2017 the Court of Justice of the European Union (CJEU) effectively ruled that such cooperation was not in line with EU legislation.

‘Roads not taken’: The temporary protection directive

 The (co-)operation along the Western Balkan route was full of contradictions. At approximately the same time, whilst the photo of dead Aylan Kurdi was present virtually in all European Media, the German Chancellor Angela Merkel announced that Germany would examine asylum claims of all forced migrants from Syria who came to Germany. In this period Hungary finalised a fence on its border with Serbia and rerouted the refugees away from its territory. Along with other Visegrad countries, Hungary also opposed the relocation scheme for refugees that the European Commission suggested as a solidarity measure between EU Member States (specifically to unburden Italy and Greece, but also Hungary itself). In other EU and non-EU countries along the Western Balkan route (Austria, Slovenia, Croatia, Serbia, and the Republic of Macedonia), civil society activists very early on alerted their countries that the refugees would not want to stay there, but would want to continue particularly towards Germany. That is why most activists advocated for a humane and dignified approach towards these forced migrants: that is, to establish a corridor and let them pass through the territory even if such practice did not directly correspond to EU law.

The countries on the Western Balkan route did indeed let many of the refugees cross their territory. The political claim was that was the most humanitarian approach to take as they did not have large enough capacities to host them: as the Slovenian president stated, Slovenia as a country with a population of two million people could not become a “pocket” for such a large number of refugees and other migrants. Yet the claim that these countries do not have capacities to host a large number of refugees was contradictory considering past experiences: in the war during the disintegration of the former Yugoslavia, the post-Yugoslav countries hosted together more than a million refugees from the region. The lack of capacities to host a large number of refugees seemed to be somewhere else: while in the 1990s wars these countries were hosting refugees from the former common countries, in many of them there is a lack of integration policies for these refugees.

Various legal and political science scholars were, however, perplexed that the EU Member States did not decide to activate one piece of EU legislation, that seemed to be created exactly for a ‘major influx of refugees’: the 2001 Temporary Protection Directive. The experience of people displaced by the Yugoslav war and seeking protection in the EU in the 1990s demonstrated the need for a special directive. Since former Yugoslav refugees came to the EU in a short period of time, some EU Member States decided to offer the immediate temporary protection rather than going through the lengthy asylum procedure in order to determine a refugee status. While this created an EU-wide legal instrument to address the situation of a ‘refugee crisis’, there was no EU-wide political cooperation to activate this Directive. Yet a different kind of cooperation arose on the Western Balkan route.

Cooperation beyond EU law, but in solidarity: Transit migration

In the late summer of 2015, Germany decided to accept a large number of Syrian refugees and the EC as well as a number of European countries welcomed that decision. Although there was no clear basis for it in EU law, the countries along the Western Balkan route, with the support of human rights activists and international organisations, decided to form a passage and helped refugees transit through their territory. Most of the refugees did not fill in the asylum applications in these countries as there was a silent agreement they would be ‘waved through’ to Germany. The countries along the Western Balkan route at different points during the refugee crisis concluded that the Dublin III Regulation (which outlines which EU country is responsible for individual asylum claims) and other asylum and refugee-related EU Directives were not fully applicable during the 2015/16 refugee crisis. Some politicians, especially in Croatia, even said outright that they could not follow the EU legislation since it did not envision more than half a million of refugees coming in such a short period and passing through the territories of these countries. At the peak of the refugee crisis in the autumn of 2015, Croatia did not consistently fingerprint refugees passing its territory as it was envisioned in the EURODAC Regulation, but helped them get through Croatia towards Slovenia and Austria and then towards Germany. This lasted until the Western Balkan route was closed by the EU-Turkey Refugee Deal, which also ended the ‘waving through’ policy and transit of refugees.

Not only transit, but also transitional: Developments after the closure of the Western Balkan route

When the Western Balkan route was closed down in March 2016, many questions about what would happen to the refugees taking this route remained unanswered. For example, around 7000 refugees remained stranded in Serbia. When the Western Balkan route closed, they did not seek asylum in Serbia, but rather remained there as “irregular migrants” in the hope they would find their way to the EU. From their point of view, they were caught at an arbitrarily determined point, when the borders were open and when they closed down again. A similar conclusion was made by some of the forced migrants, who were faced with the return from Greece to Turkey on the basis of the EU-Turkey Refugee Deal. Three asylum seekers called this deal into question before the General Court of the CJEU. Yet the Court decided that it did not have jurisdiction in this matter, because it was not clear which of the EU Institutions was the author of the EU-Turkey Statement. Therefore, the Court decided it was rather the EU Member States who made this deal and not the EU institutions. This conclusion was heavily criticised by different policy studies scholars as the EU Institutions praised this deal as an instrument for ending the refugee crisis, but later on none of them wanted to take the authorship and the responsibility for this statement.

Another contested matter in the Western Balkan route was the question about the validity of the Dublin III Regulation during the 2015/16 refugee crisis. The Austrian Administrative Court and the Slovenian Supreme Court requested preliminary rulings in two cases, where it had to be determined which country is responsible for asylum seekers in Austria and Slovenia respectively, who came into these two countries while the Western Balkan route was still open. The latent question was, whether these two countries could deport them back to Croatia as the first country of entry, even though they did allow them to pass through their territories when the Western Balkan route was open. Advocate General Sharpston argued that, due to exceptional circumstances during the refugee crisis (with a high number of refugees in transit), the countries where the asylum claim was first made, should be responsible. In this case, it was Slovenia and Austria rather than Croatia, who would also be overwhelmed with such a large number of asylum seekers. However, the CJEU Judges did not follow the AG’s opinion and came to a diametrically different conclusion. They decided that, albeit the exceptional circumstances, the Dublin III Regulation and the Schengen Borders Code cannot be interpreted on the basis that the transit of refugees was legally justified. They argued that both Slovenia and Austria should have returned asylum seekers to Croatia and there was no possibility of the transit corridor under the EU Law. Effectively this would mean that more than a hundred thousand refugees could be returned to Croatia as it was considered the first EU country of entry. Many human rights activists in Croatia have heavily criticised this decision of the CJEU. They argued that the decision showed the hypocrisy of the European Union: while in September 2015, EU institutions welcomed such ‘transit cooperation’, in July 2017 the CJEU decided that the “politics of open doors” was not legally acceptable.

The CJEU decision of 2017 did, however, answer one question: the cooperation between countries as it happened on the Western Balkan route between September 2015 and March 2016 was not legally acceptable from the EU’s perspective. This also means that it rejected the Western Balkan route as the new form of forced migration governance. Yet the way the Western Balkan route operated exposed that the EU has an urgent need for a new form of migration governance if it is to stay in line with its commitment to human rights standards that it itself designed. First, it needs to rethink the way what were the flaws in the current protection system and they have to be completely reconstructed, since as the European Council of Refugees and Exiles report cosmetic changes are not enough. Second, the EU also needs to reconsider how it will offer refugees legal ways to enter its territory. The Western Balkan route as a corridor also clearly indicated that need, as also others have argued. However, what is also very important, but not thought of very often: European States need to rethink in what way they will offer equal inclusion to refugees. The fact is that many of the refugees will not be able to return to their previous home due to the ongoing conflicts. They need to have a fair chance to create a new home in the EU Member States. And that is a project for many years to come.