Common European Asylum System: Contradictions and Crises

2016

The European Union is confronted with a deep migration crisis, at a time when the EU has changed from being a source of stability and security into becoming a generator of political instability and economic chaos. This chapter outlines the main parameters of Europe’s immigration issue and the right of asylum. It presents the European migration policies of the last decade and traces the reasons behind its complete or near failure. The European Union takes into account how to rid itself of migrants through certain measures of tightening the law on asylum, and closing the borders. The result is that those states which had most fought against borders and walls and were committed to them being permanently eliminated, are now rushing to raise them again. Meanwhile, the security threat that has increased across the whole Union due to the mismanagement of migration. The European Union has spent years developing the Common European Asylum System (CEAS). The aim of CEAS is to ensure the rights of asylum seekers by law. The system establishes minimum standards and procedures for processing and assessing claims for asylum and for the treatment of asylum seekers and those granted refugee status. Nevertheless, a large number of EU member states have yet to correctly implement these standards. Instead there is a collage of 28 different asylum systems producing uneven results? Finally, this chapter examines the EU asylum system itself. The chapter analyses how national asylum systems interact under the law of the EU, applying the criteria of the distribution of state responsibility to investigate asylum applications. This chapter addresses two key concepts in the development of European asylum law in particular: the concept of solidarity and the concept of trust, the application of which has been demonstrably weak in the European Union asylum system.

2018

There are two distinct but related issues here: the diverse probabilities of receiving protection in the EU depending on the country in which one makes a claim, and the credibility of decisions that are made. There is currently no European institution implementing these directives or ensuring that criteria are uniformly applied – instead considerable discretion remains at national level, with the result that where one makes one’s claim matters enormously, a fact ignored by the Dublin regulation.

Globsec Magazine, 2017

European leaders are making much ado about the European Union (EU) facing an unprecedented migration crisis. However, the images of boats and long marching columns of people seeking to reach the EU that emerged in summer 2015 represent rather only the peak of a migratory and refugee crisis the Union has been facing for over two decades now, highlighting the lack of practical implementation of the Dublin asylum system.

The Dublin regulation is a European Union legal instrument establishing a system for definitive identification of the participating State responsible for examining a particular asylum application. Since the system was introduced in 1990, however, the scale, nature and geographical focus of mass migration into the European Union have changed significantly. In addition, the distribution of asylum applicants between participating States is extremely uneven; the Dublin system is, however, not intended or capable of functioning as a " burden-sharing " mechanism to counteract this inequity, which on the contrary is exacerbated by Dublin transfers of asylum applicants. It has thus become a symbol of unfairness and lack of solidarity in European asylum policy. Furthermore, the Dublin system has given rise to serious violations of asylum seekers' human rights. The Dublin system is thus dysfunctional: ineffective and certainly inefficient in achieving its basic aims, and at an unacceptably high human cost and resource cost. Indeed, it is difficult to see how it could operate as intended. The Parliamentary Assembly should therefore propose a series of reforms to the implementation of the current Dublin system, the wider context in which it operates and on which it is dependent, and to the content of the Dublin regulation itself.

2019

Since the influx of asylum seekers in 2015 and 2016 many scholars and journalists have pointed to the responsibilities and failures within European asylum policy. It was argued that the current set of regulations and directives fundamentally expect some common solidarity between the Member States. However, even if there existed a form of solidarity among Member States before the summers of 2015 and 2016, this feeling has dissipated since. The insights from research done within the CEASEVAL project and outside of it has led to many questions on the sustainability and equity of the current asylum and migration policy framework in the EU. One of the most pressing questions is: what should an ideal-typical CEAS look like? To answer this compelling question, this paper critically assesses the strengths and weaknesses of the current CEAS, investigates alternatives, and tries to develop a solution that might bring us close to an ideal CEAS, for instance by involving sub-national actors, su...

20 Year Anniversary of the Tampere Programme. Europeanisation Dynamics of the EU Area of Freedom, Security and Justice, Florence: European University Institute, 2020

UNIO – EU Law Journal

In 2015, the unprecedented arrival of refugees and irregular migrants in the European Union (EU) put a strain on the Common European Asylum System (CEAS), thus exposing a number of deficiencies in EU external border, asylum and migration policy. The need to reform the system became urgent and the EU was presented with both a challenge and an opportunity to further advance towards a much-needed consensual and long-term solution for the harmonisation of the asylum system, standing on the basis of solidarity and responsibility-sharing. This paper argues that the new comprehensive approach to migration and asylum praised by the European Commission (EC) is still missing in the recent Pact on Migration and Asylum of 2020, which represents more a missed opportunity than the real reform that the CEAS needs. The chosen legislative path, the dualistic understanding concerning the approach to migrants, and the new solidarity mechanism envisioned in the Pact show how the lack of consensus among...

Against the background of the recent migratory crisis in Europe, this Delmi report aims at examining and taking stock of the Common European Asylum System (CEAS). It asks what has been achieved and what has failed, focusing on two of the most pressing challenges: (1) the unequal distribution of asylum seekers across the EU Member States and the search for a more equitable sharing of responsibilities; and (2) the wide variations regarding Member States’ decision-making practices on asylum applications and the need to achieve more harmonised recognition rates. We label these two aspects “solidarity” (regarding equitable responsibilitysharing) and “fairness” (regarding the approximation of asylum decisions). The first empirical part of the study explores a number of proposals regarding responsibility-sharing for asylum seekers among the EU Member States, which have been brought up by policy-makers and researchers. The study focuses on the variations in dispersal effects of four different distribution keys for asylum seekers and discusses their appropriateness. Four different keys and their respective advantages and drawbacks are analysed with regard to their allocation criteria, such as Member States’ population size, economic power, or territory. The authors also look into the de facto number of asylum seekers that the Member States have received in recent years and contrast these numbers to hypothetical fair quotas. The results show that some Member States have overperformed with regard to the number of asylum seekers they admitted, due to their geographical location within the EU or other factors, whereas others have remained far below a fair share. The second part asks whether there has been a trend towards increased convergence regarding Member States’ asylum decisions – which we might expect given the fact that the EU has worked towards an approximation for many years. It turns out, however, that while an overall trend towards higher protection rates can be identified, not least due to the increased numbers of asylum seekers from war-ridden countries such as Syria, Member States have made very little progress regarding more harmonised decisions. Analysing national recognition rates for selected countries of origin (Syria, Afghanistan, Iraq, Pakistan and Kosovo), the authors find that a measurable approximation of national asylum outcomes has not been achieved. Extreme variations have persisted over many years, especially in the cases of Afghanistan and Iraq. In 2016, the chances for an asylum seeker from Iraq to receive protection in Hungary and the United Kingdom was below 13 percent, compared to 100 percent in Spain and Slovakia. The case of Afghanistan is even more outstanding, with protection rates in 2016 oscillating between 1.7 percent and 97 percent. Responsibility-sharing and harmonised asylum outcomes are key interdependent factors for the functioning of a Common European Asylum System. First and foremost, an approximation of asylum decisions is a precondition for a successful responsibility-sharing system as it would be unfair to allocate asylum seekers to a Member State where they would have very little chance to receive protection, if the likelihood of protection would be much greater in another Member State. Vice versa, a fair mandatory distribution of asylum seekers would encourage national governments to abide by the common standards and not use restrictive asylum practices as a method to reduce their attractiveness as countries of destination. Further to responsibility-sharing and the approximation of decision-making on asylum, the study briefly looks into other factors that also need to be taken forward to achieve a truly Common European Asylum System, such as greater harmonisation and cooperation regarding reception arrangements for asylum seekers and procedural standards, and a stronger role for the current European Asylum Support Office (EASO). The authors also address the long-standing and fundamental dilemma that asylum applications can only be lodged from within the territory of a Member State or at its borders while it is, at the same time, illegal for most protection seekers to actually get there. The study argues that resettlement and humanitarian admission programmes need to be expanded, and that more legal pathways to protection in Europe should be opened. Finally, the report presents some concrete ideas for working towards more harmonised asylum outcomes and a workable responsibility-sharing system. On asylum decision-making, the authors propose an enhanced role for a future EU asylum agency, which would include a “fire brigade” function to identify, analyse and mitigate situations in which Member States’ asylum recognition rates for applicants from specific countries of origin differ too strongly. The study also proposes “joint processing” exercises, where officials from several Member States examine and decide asylum applications lodged by nationals of a specific country together. The study presents four main future scenarios for policy-makers to contemplate. These scenarios include (1) the status quo, the continuation of the currently used Dublin system including its responsibility-allocation criteria; (2) a “Dublin plus” scenario, in which the Dublin rules would be complemented by a new, quota-based corrective allocation mechanism; (3) a new quota-based allocation system that would replace the current Dublin criteria; and (4) finally a “free choice” system in which asylum seekers would be free to choose their country of destination. In the context of these scenarios or policy options, the study also discusses ideas regarding transition periods for “skeptical” Member States, options to move money instead of people by allowing Member States to ransom themselves, and the importance of intra-EU freedom of movement rights for those asylum-seekers who are granted protection. The authors argue that in the long run, a quota-based system in accordance with scenario number three appears to be the most coherent course of action, though this seems politically difficult to achieve and demands a high level of ambition from EU and national policy-makers. While the report is written from a European perspective and designed to be of relevance for all Member States, a special focus is applied on Sweden. The authors clarify, for example, what the effects of a fair distribution key for asylum seekers would be regarding the number of asylum applicants to be received in Sweden, and how Sweden positions itself regarding the extent to which asylum seekers from specific countries of origin are granted positive decisions. While Sweden has by far exceeded the quantitative responsibility for asylum seekers that it would have in relation to its population size and its economic power during the period 2008-2015, it suddenly underperformed in 2016 as the number of incoming asylum seekers plunged following the introduction of a number of restrictive measures. Regarding asylum decisions, Sweden’s practices have often been roughly in line with the EU average, meaning that they did not massively deviate from the mainstream EU approach to specific countries of origin. However, regarding two very significant countries of origin, the authors found interesting variations. Concerning Iraqi nationals, Sweden has been more restrictive than the rest of the EU over the entire period of analysis from 2008 to 2016. While it had a comparatively generous approach towards asylum seekers from Afghanistan, it was significantly stricter than the EU mainstream in 2015 and 2016.

EU Law in Populist Times: Crises and Prospects (Cambridge University Press), 2020

Scratching beneath the superficial layer of the ongoing political and media debate, this contribution holistically analyses the content of the EU’s Common European Asylum System (CEAS), a notion that despite its centrality to the EU’s asylum policy lacks a precise definition. Beyond legislative harmonisation, I point to the central role of implementation, which should be viewed as an integral part of the system design, and critically assess the impact of the principle of solidarity and fair-sharing of responsibility. Thereafter, I examine the CEAS’s changing implementation modes, critically assessing to what extent they signal a passage towards an emerging integrated European administration. I also trace the relationship between the events of the 2015–2016 ‘refugee crisis’ and developments in the administrative architecture of the CEAS. I conclude by highlighting how Member State unilateralism and externalisation, i.e. the transfer of obligations to third countries, are increasingly taking centre stage and are operating as a parallel – or indeed even alternative – track to harmonisation and intra-EU cooperation on asylum matters.

2018

The reform of the Common European Asylum System (CEAS) was much wished for both by committed Europeans and by human rights advocates more generally. Ideally, the European Union (EU) would have developed a single asylum system with equal criteria applying to all Member States and full recognition of the international protection status everywhere in the Union. This would have taken care of the primary concern of the Member States, that is, the prevention of asylum seekers' secondary movements. The abandonment of the nation-specific prerogatives would also have allowed for a focus on the asylum seekers' needs. However, the proposals issued by the European Commission between 2015 and 2016 in no way suggest that a uniform asylum system is on the way. This paper examines the implications of some of these proposals for the governance of asylum and for the understanding of international protection as the guarantee of specific rights to foreign citizens in need. It further assesses t...