On the 26th July 2017, Advocate General Bot delivered his opinion (see here) to the European Court of Justice on the challenge made by Slovakia and Hungary against the provisional mechanism for the relocation of asylum seekers. The provisional mechanism was a measure taken by the Council of the European Union.

The opinion recommends that the Court dismiss the challenge. The European Court of Justice is not bound to follow their Advocate General’s opinion but does so in around 80% of cases (however the Court recently refused to follow the Advocate General’s decision in a case concerning the right to deport purported asylum seekers to the first EU State that they entered – see here).

Much of the opinion concerns dry procedural matters, as one ground of challenge concerns the failure of the Council to follow the correct procedure in adopting the above measure. However the measure is also challenged on the basis that it constitutes an inappropriate response to the situation in hand.

The paucity of the analysis of this ground is surprising. What is particularly surprising is the absence of any kind of empirical consideration of the percentage of migrants who would meet the factual requirements for refugee status; in some parts of the opinion, Bot appears to be taking it for granted that all relevant migrants are genuine refugees. Whilst one can understand him ignoring the political and ideological question concerning the merits of replacement level migration, due to the same being outside the scope of the Court’s decision, his failure to conisder the aforesaid empiricial question would seem to render the decision deficient. The main reason for rejecting the second ground of the challenge seems to be the strain being placed on other member states by the so called migration crisis, which leaves open the question of whether or not a different policy would amount to a deterrent thereby relieving the said strain.

The Court’s decision is expected after its summer break.