The Court of Justice of the European Union has ruled that Poland, Hungary and the Czech Republic broke EU law when they refused to take in migrants under the European Union's September 2015 relocation agreement. Pictured from left to right: Poland's Prime Minister Mateusz Morawiecki, Czech Republic's Prime Minister Andrej Babis and Hungary's Prime Minister Viktor Orban give a joint press conference on March 4, 2020 in Prague. (Photo by Michal Cizek/AFP via Getty Images)
The Court of Justice of the European Union (CJEU) has ruled that Poland, Hungary and the Czech Republic broke EU law when they refused to take in migrants under the European Union's September 2015 relocation agreement. During the 2015 migrant crisis, EU leaders agreed to relocate 160,000 migrants and refugees EU-wide, assigning each EU member state a fixed quota from the camps in Italy and Greece, where migrants and refugees were arriving in record numbers. However, the Czech Republic accepted only 12 of the 2,000 refugees assigned it, while Hungary and Poland took in none.
In 2017, the EU took Hungary, Poland and the Czech Republic to the Court of Justice of the European Union (CJEU) over that refusal to take migrants. On April 2, 2020, the CJEU ruled against the three countries. The ruling followed the October 2019 recommendation by the Court's Advocate General, legal advisor to the Court, which said that EU law must be followed and that the EU's principle of solidarity "necessarily sometimes implies accepting burden-sharing".
In its judgment, the Court dismissed the three countries' argument that they were entitled to refuse the relocation scheme based on concerns for the maintenance of law and order and the safeguarding of internal security. The Court agreed that those concerns constituted legitimate reasons to derogate from obligations of EU law. However, the Court ruled that EU member states refusing to take in migrants under the relocation scheme could only legitimately do so if they proved, "following a case-by-case investigation, on consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question represents an actual or potential danger".
As Poland, Hungary and the Czech Republic had not proven any specific and concrete danger for each of the migrants that they refused to take in under the relocation scheme, they had not been justified in "suspending the implementation of or even ceasing to implement its obligations under the relocation decisions".
The Court's ruling comes at a time when the European Union is experiencing unprecedented disunity over the handling of the Covid-19 pandemic and just weeks after Turkish President Recep Tayyip Erdogan's recent, and muscular attempts at utilizing migrants for the purpose of political blackmail against EU leaders.
The ruling effectively removes the sovereignty of EU member states to make their own decisions regarding the keeping of public law, order and national security in the case of EU migration policies, if those decisions conflict with EU obligations. The ruling does so by setting up criteria that are impossible to meet. A "case-by-case investigation, on consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question represents an actual or potential danger" is unworkable today for the following reasons:
The EU's own European Migration Network, an "EU network of migration and asylum experts who work together to provide objective, comparable policy-relevant information", which works under the auspices of the European Commission, published a report in 2017, "Challenges and practices for establishing the identity of third country nationals in migration procedures". According to the report, which was based on input from almost all EU member states:
"Generally, (Member) States observed an increase in the number of international protection applicants unable to provide a valid proof of identity... Most (Member) States reported that applicants for international protection are often not able to provide official travel and/or identity documents, and even if these are provided, a further challenge lies in determining whether these are genuine".
Given these documented difficulties, why did the Court set up criteria -- "case-by-case investigation, on consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question represents an actual or potential danger" -- that are entirely unrealistic?
In addition, the ruling of the court goes against evidence that migration flows into Europe do indeed constitute a real security danger that has cost European lives. In his November 2019 report, "What Terrorist Migration Over European Borders Can Teach About American Border Security", Todd Bensman, a senior national security fellow at the Center for Immigration Studies, described the extent to which terrorists disguised as migrants have entered the European Union to commit terrorist attacks.
According to Bensman:
"Between January 2014 and January 2018, at least 104 Islamist extremists entered Europe by way of migration...The majority of the 104 Islamist migrant-terrorists — 75 — were primarily affiliated with ISIS, while 13 were affiliated with Jabhat al Nusra... Of the 104 migrants implicated in terrorist acts, 29 were involved in 16 completed attacks inside Europe between 2015 and 2018. These attacks killed 170 people and wounded at least 878 more, according to an analysis of media accounts... At least 27 were part of one large cell of operatives dispatched onto the migration trails by ISIS...Of the 65 migrant-terrorists involved in completed or thwarted attacks, at least 40 appeared to have been purposefully deployed into migrant flows toward Europe, impersonating war refugees, to conduct or support attacks in Europe. ISIS was responsible for this infiltration operation..."
How national authorities are supposed to distinguish between actual "war refugees" and terrorists impersonating war refugees is not suggested by the Court, which appears curiously uninterested in dealing with the reality of migration.
Another problem with the Court's requirement that member states must prove that a migrant will constitute a potential or present danger to the maintenance of law and order is that this may also be impossible, even if a clean criminal record is available at the time that a migrant seeks to enter a country. The presence of large numbers of migrants from primarily the Middle East and North Africa has brought with it a documented increase in crimes that did not use to exist in European countries. One such crime is gang rape, which is now widespread in a country like Sweden, which has taken in very large numbers of migrants over the past several decades, but was literally unheard of until the 1980s. The mass sexual assaults on women by migrants in European cities such as Hamburg and Cologne, on New Year's 2015-16, where it was estimated that 2,000 men, mainly migrants, sexually assaulted 1,200 women, was also a new kind of crime. "There is a connection between the emergence of this phenomenon and the rapid migration in 2015," Holger Münch, president of the German Federal Crime Police Office, said in July 2016 about the incidents.
No amount of investigations by Hungary, Poland and the Czech Republic could have possibly predicted what migrants, among the more than one million that entered into Europe during the 2015 migrant crisis, would participate in such crimes.
The Court's ruling does not only contradict facts and common sense. It sends the distinct signal to foreign regimes, such as that of Turkish President Recep Tayyip Erdogan, that sending migrants to the continent for whatever purpose, even political blackmail, will be successful, because European institutions, such as the Court of Justice of the European Union, will do their utmost to ensure that even the most rebellious EU member states, such as Poland, Hungary and the Czech Republic, will be forced to receive them.
Judith Bergman, a columnist, lawyer and political analyst, is a Distinguished Senior Fellow at Gatestone Institute.
 The Treaty on the Functioning of the European Union, article 72, explicitly provides that concerns for maintenance of law and order and the safeguarding of internal security constitute legitimate reasons to derogate from EU obligations.