El-Enany, N.: The Common European Asylum System, 2007

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THE COMMON EUROPEAN ASYLUM SYSTEM


What follows is a brief introduction to the formulation of the Common European Asylum System. The formulation of common policies on asylum at the European level is driven by an assumption that the movement of asylum applicants is determined by ‘pull factors’, i.e. policies deemed attractive to asylum seekers, who are perceived as rational actors deciding on their destination countries according to these factors. European policy-makers believed that the controlling of these pull factors would reduce the numbers of asylum seekers in any particular Member State. However, the danger is that competition in the asylum field will lead to a ‘race to the bottom’ in terms of protective policies, with all States desiring to reduce the total number of asylum seekers on their territories.
In order to claim asylum in an EU country, an individual must either reach the territory of a Member State or be within its jurisdiction. Strict border controls and entry requirements mean that asylum seekers most often have to enter illegally in order to lodge their claims. Member States employ administrative bodies to hear the claims of asylum seekers and different procedures may be used with regard to claims made at the border. Procedure in examining the case differs according to whether the case is deemed admissible, inadmissible or unfounded. The EU Procedures Directive relates to the issue of access to asylum procedures and the measures to be in place with regard to asylum determination. Article 25 of the Procedures Directive catalogues eight instances where Member States may consider an asylum claim ‘inadmissible’ including where a ‘non-EU State is considered a “safe third country”’.  If an individual lodging an asylum application in a destination State is found to have originated from, or passed through, a so-called ‘safe country’, her claim may be left undetermined and she becomes liable to return to that ‘safe country’.
It is clear from these provisions that the Procedures Directive, in designating no less than 15 permissible grounds for accelerating procedures, in leaving Member States with broad discretion as to the interpretation and application of the provisions, in including those grounds based on the ‘safe country’ concept also as inadmissibility grounds results in legal ambiguity and will likely lead to the adoption of diverse practices and possibly inadequate levels of protection across the Union. It has been argued that due to the flexibility in application of the Directive attributed to Member States, that it is ‘of dubious utility as a harmonisation instrument’. It fails even to facilitate institutional harmonisation in allowing Member States to create a number of different bodies responsible for processing claims .  
It has been suggested that ‘only one EU measure comes close to adding a pan-European dimension to dealing with asylum claims: the Dublin II regulation’.   The Dublin Regulation is the central binding EU instrument for the implementation of the ‘safe third country’ concept, incorporating the Dublin Convention,  agreed at Schengen, into EU legislation.  The Dublin Convention established the rules for the determination of the Member State responsible for hearing the claims of asylum seekers, and is founded on the notion that this responsibility lies with the first Member State with which the asylum applicant establishes contact, whether by the issue of a transit visa, the legal presence of a close family member, or in the absence of these, the first physical contact with the territory. State Parties are required to readmit individuals transferred on the basis of the Dublin regime, whilst respecting the principle of mutual recognition with regard to the application of its rules.
To ensure the functioning of the Dublin Regulation, the Eurodac system was set up in order to be able to establish the transit route of the asylum applicant. This requires Member States to take fingerprints of asylum seekers, those crossing EU external borders illegally and grants a power to fingerprint those present unlawfully on a Member State territory. The Commission manages Eurodac’s Central Unit, which consists of the Automated Fingerprint Identification System, receiving and transmitting the recorded information to the National Access Points of the Member States.   An informal comitology structure described as an ‘informal expert group’ was created by the Commission to aid in the running of the Central Unit.
The Amsterdam Treaty of 2 October 1997 moved matters of asylum from the intergovernmental third pillar to the Community first pillar. The communautarization was however gradual; under Article 67 EC, the Council’s voting on the proposal was to be on the basis of unanimity, with the European Parliament merely being consulted. Thus, the move towards supranational decision-making on asylum policy may be seen as ‘a cautious embrace’.  The Amsterdam Treaty described the EU as ‘as area of freedom, security and justice’  with which the measures on asylum were to comply.  The legal base for the ensuing asylum legislation was Article 63 EC, which envisaged legislation on the reception conditions,  temporary protection,  determination of refugee status and asylum procedures, all of which have now been agreed.  The levels of protection provided for in the legislation differ. Described as ‘a system of tripartite protection’ , the legislation provides for a protection status equivalent to that foreseen in the 1951 Refugee Convention (Article 63(1)(c) and (d), a secondary status of ‘subsidiary protection’ for individuals ‘who otherwise need international protection (Article 63(2) EC), and ‘temporary protection’ to be provided in cases of mass influx of ‘displaced persons from third countries who cannot return to their country of origin’ (Article 63(2)(A) and 64(2) EC).
By the time of the European Council of Tampere in October 1999, the right to apply for asylum was being referred to as a ‘human right’ to be safeguarded through ‘solidarity’ amongst Member States.  However, such a proclamation seems to have come somewhat late in the day, the roadmap for the CEAS already having been decided during the negotiations on the Amsterdam Treaty. This reluctance to truly commit to the right to apply for asylum as a human right is demonstrated in the ambiguous phrasing of the asylum right as set out in Article 18 of the Charter of Fundamental Rights of the European Union 2000 (the European Charter), which though recognises that the ‘right of asylum [emphasis added]’ (rather than to asylum) is to be ‘guaranteed with due respect for the rules of the [Refugee Convention]’ also requires it to be protected ‘in accordance with the treaty establishing the European Community’.  Thus the ‘right of asylum’ may be considered as a ‘human right’ only in so far as the restrictive treaty framework which envisages its protection allows.
The Hague Programme of 2004  called for the establishment in 2010 of a Common European Asylum System with unified procedures and status within the second stage of implementation provided for in the Amsterdam Treaty.   It has been decided unanimously that decisions on asylum will henceforth be taken on the basis of qualified majority voting as opposed to unanimity and in co-decision with the European Parliament rather than by its consultation, whilst the Commission has regained its exclusive right of initiative.  An action programme for reinforcing practical cooperation on asylum between Member States has since been proposed by the Commission, which foresees the establishment of a single procedure for the determination of asylum claims, the agreement of a common procedure for assessing the situation in countries of origin and investigating the potential for practical funding for States which are under particular pressure as a result of their geographical location.
Although in terms of procedural harmonisation at present the diverse practices amongst Member States appear likely to continue in spite of the adoption of the Procedures Directive, it is hoped that the Qualifications Directive will contribute to reducing the very different results with regard to the identification of refugees.  Efforts are planned in terms of the sharing of country of origin information by Member State asylum determination authorities.  The Hague Programme of 2004 foresees the creation of ‘appropriate structures involving the national asylum services of Member States with a view to facilitating practical and collaborative cooperation’.
    It is possible that such collaboration, in order for it to be successful, will result in the adoption of joint processing methods, which would in turn contribute to the establishment of a genuine common asylum procedure. According to Costello, currently the single asylum procedure envisaged by the Commission ‘remains elusive’.  However, in the Hague Programme, the European Council requested the Commission to ‘present a study on the appropriateness as well as the legal and political implications of joint processing of asylum applications within the Union’,  which is to consist of the sharing of country of origin information and the monitoring of the pressure levels on Member States’ asylum administrations. It is anticipated in the Programme that once the common asylum procedure has been achieved that this system of cooperation will be converted into ‘a European support office for all forms of cooperation between Member States’.   Costello notes that this is a new development over and above the limited cooperation between Member States’ asylum services through EURASIL, a European network of asylum specialists which replaced the Centre for Information, Discussion and Exchange on Asylum (CIREA).
The Hague Programme also recommended the undertaking of a ‘separate study…in close cooperation with UNHCR’ to assess ‘the merits, appropriateness, and feasibility of the joint processing of asylum applications outside the EU territory, in complementarity with the Common European Asylum System and in compliance with the relevant international standards’.  The UNHCR and the Commission have however insisted that any joint processing must take place within the EU.   If carried out in a rational and protective manner, such joint processing methods could help to counter the potential created by the Procedures Directive for continued diversity in the application of asylum.

References

Commission paper ‘A More Efficient Common European Asylum System: The Single Procedure as the Next Step’, COM (2004, 503 final of 15 July 2004).

Commission Communication on strengthened practical cooperation; New structures, new approaches: Improving the quality of decision making in the common European asylum system’ COM (2006, 67 final of 17 February 2006).

Costello, C.: ‘Administrative governance and the Europeanisation of asylum and immigration policy’ in: H. C. H. Hofmann and A. H. Türk (eds.) EU Administrative Governance (Edward Elgar, 2006).

Costello, C.: ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’ EJML 7 (2005). 

European Council: The Hague Programme: Strengthening Freedom, Security and Justice in the EU (4-5 November 2004).

Geddes, A.: Immigration and European Integration, Towards Fortress Europe? (Manchester: Manchester University Press, 2000).

Teitgen-Colly, C.: ‘The European Union and Asylum: An Illusion of Protection’ CMLR 43 (2006).

Van Selm, J.: ‘European Refugee Policy: is there such a thing?’, New Issues in Refugee Research (UNHCR Working Paper No. 115, May 2005).

Nadine El-Enany, 2007

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