A turbulent Justice and Home Affairs Council meeting results in the controversial decision to relocate 120,000 migrants throughout the EU.

The EU’s Justice and Home Affairs Council decided on 22 September to relocate 120,000 migrants from Italy and Greece over a period of 2 years. The plan applies to persons arriving on the territory of Italy and Greece from 25 September, as well as to applicants having arrived on the territory of those Member States from 24 March 2015.

Those relocated are considered to be “in clear need of international protection”. The clear need appears to be defined as those nationalities with a greater than 75 per cent success rate in applications for international protection (i.e. refugee status or subsidiary protection) on the basis of quarterly statistics by Eurostat, the EU statistical agency. Currently, this means that in practice the nationalities will consist of Syrians, Iraqis and Eritreans.

Member States will receive a €6,000 lump sum for each individual relocated to their country.

The plan may be adapted if there is ’an emergency situation characterised by a sudden inflow of nationals of third countries”, which may even necessitate the suspension of a Member State’s obligations.

While Jean Asselborn, Luxembourg’s Minister for Immigration and Asylum (and in his capacity as representative of the Council Presidency), said that a ‘very large majority’ of Member States was in support, thereby emphasising the Union’s ’solidarity’, the decision has clearly been divisive. The UK, Ireland and Denmark have all opted out of the plan. The Czech Republic, Slovakia, Romania and Hungary voted against the plan, with Finland abstaining and Poland criticising the plan but voting for it.

In the aftermath, Slovakia has gone so far as to mount a legal challenge, and the Czech President Milos Zeman said that “only the future will show what a mistake this was’.

Pursuant to Article 260 of the Treaty on the Functioning of the European Union, if the Court of Justice of the European Union finds that a Member State has not complied with its Treaty obligations (as the Slovak Prime Minister Robert Fico has threatened to do), it may impose a lump sum or penalty payment. As a more informal sanction, the wealthier States may choose to limit the amount of subsidies they send to non-cooperating countries – an option not ruled out by French President François Hollande.