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by Daniel Thym, Universität Konstanz

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This is the final post in our series of blogs aimed at providing an enriching background to the topics that will be discussed during our annual conference titled “Beyond ‘crisis’? The State of Immigration and Asylum Law and Policy in the EU” , which will take place in Brussels on 10 February 2017.

The crisis of the Common European Asylum System has been a major political and academic concern over the past months. Various issues were discussed at length on this blog and elsewhere, including the EU-Turkey Statement, the Commission Proposal for a Dublin IV Regulation and, most recently, cooperation with countries in Northern Africa. By contrast, the three Commission Proposals on a revision of the Reception Conditions Directive and the adoption of novel Asylum Procedures and Qualification Regulations, which were published just before last year’s summer recess on 13 July 2016, have received little attention so far. This contribution shows how closer inspection of the proposals helps to identify core challenges in the reform of the CEAS.

1. Constitutional Fundamentals: the Need for Political Direction 

It is worth highlighting that the proposals can be adopted on the basis of Article 78(2) TFEU without the need for Treaty change. The reason is simple: the Treaty of Lisbon endowed the EU with robust competences to pursue an ambitious immigration and asylum policy through supranational legislation. As any expert of EU law will know, an agreement on the proposals requires the accord of the European Parliament and of the majority of Member States in the Council in the so-called ‘ordinary legislative procedure.’ It is now in the hands of euro-parliamentarians and national governments to decide what they want.

This reminder of the constitutional background is more than a technicality, since it emphasises the need for political direction. In its Communication of spring 2016, the Commission had emphasised the political nature of the debate when it presented different options for how to move forward – in line with the promise of President Juncker that this shall be ‘a very political Commission.’ By contrast, the Commission Proposals on the revision of core CEAS legislation recognised inherent political choices only vaguely. They do not explain at length why certain routes were (not) taken, although these questions may now dominate discussions in the Parliament and the Council.

Of course, there are constitutional limits the legislature is bound to respect, in particular the Geneva Convention and human rights enshrined in the EU Charter and the ECHR. Full respect for these norms is mandatory – even if in practice both legislation and administrative practices on the ground seem to fall foul of these standards, as ongoing debates about reception conditions in the Greek hotspots illustrate. Such focus on legal limits is essential and, yet, it does not undo the need for political direction. Many rules in secondary EU legislation go beyond judiciable human rights standards – as the Court of Justice recognised prominently with regard to family reunification (here, paras 59-60). In these instances, it remains the prerogative of the legislature to decide on the way forward, as the example of the provision on safe third countries discussed below demonstrates.

2. European Values at a Time of Political Contestation

Policy debates do not occur in a vacuum. Normative ideals influence political decisions also in the absence of strict constitutional obligations. Thus, political actors regularly invoke the ethical worth of refugee protection in line with the ‘spirit’ of the Geneva Convention – as Chancellor Merkel did in a phone call with President Trump when she criticised his restrictive entry policies. Such normative preference is often expressed in terms of a proactive human rights policy or, more generally, as a commitment to European ‘values’ also in areas where human rights as legal limits, which can be enforced in courts, do not prescribe a specific outcome. The Malta Declaration on 2 February 2017 is a case in point when the members of the European Council reaffirmed, in the introductory paragraph, their commitment to ‘human rights, international law and European values.’

This brings us to a core challenge of the CEAS at this juncture. A broader normative function of human rights and values as a guiding spirit does not come out of the blue; it needs to evolve on the basis of political debates and social practices which embed constitutional values in the hearts and minds of policy actors and citizens. Yet, it is precisely such a basic consensus on its normative foundations that the EU’s asylum policy lacks at this critical moment. As I explain in a recent article for the Common Market Law Review, the current scenario presents a sort of constitutional moment for the CEAS in which conceptual foundations are being exposed and reconfigured – in line with one of the original Greek meanings of the term ‘crisis’ referring, amongst others, to a turning point or decision.

It is in the nature of a fundamental realignment that the outcome is not predetermined. Ongoing debates could result in a genuine European consensus on asylum policy, although standstill or decline are conceptually as likely as future success. In this respect, grass-roots support for refugees, border fences, resettlement programmes and cooperation with Libya and Turkey can be perceived as building blocks of the EU’s future asylum policy in the making. As explained in my article, a crucial factor will be politicisation: if the main difficulty is to overcome cleavages among Member States, the EU will succeed sooner or later, while the overall picture may be complicated if EU migration policy was engulfed in domestic debates which are salient in the political context.

Such politicisation would be particularly troublesome for the EU institutions, which have traditionally relied on a quiet mode of decision-making, often presenting policy choices in managerial language as the expression of a quasi-scientific approach, as the Commission has occasionally done in the past. The Commission would have to learn to withstand the battle of controversial debates beyond the realms of Brussels-based stakeholder consultations. Moreover, increased politicisation may mark the end of several decades of moderately liberal policies on migration matters, which tends to become more restrictive, once it is being politicised – as the Brexit referendum amply illustrates.

3. Legislation is not Enough

In its communication, which spearheaded the recent flurry of legislative activities, the Commission self-consciously proclaimed the objective of moving towards a ‘genuine’ CEAS, thereby admitting that events over past years had revealed structural deficiencies at the heart of the EU’s asylum policy. That is a remarkable admission of (relative) failure given that the second phase of legislative harmonisation, which many had hoped would serve as the basis for years to come, had just been completed after extensive legislative debate during 2013. Accordingly, the Ypres Guidelines of June 2014 expected the EU to focus on implementation; legislation was not on the political agenda.

Even today, the relevance of supranational legislation for overcoming the crisis of the CEAS tends to be overestimated – in line with the traditional method of ‘integration through law’ which concentrates on legislative prescriptions and court judgments to realise European policies. However, that approach may not be enough for asylum and border controls: they are defined by an operational character and require, therefore, new instruments for ensuring compliance (as I contend in the above-mentioned article). If that is correct, the agencies are at least as important as legislative change and the EU institutions were right to have focused on reinforcing Frontex and EASO initially.

The structural deficiencies underlying the crisis of the CEAS are not limited to the flagrant solidarity deficit epitomised by the rules on jurisdiction of the Dublin Regulation. EU asylum policy also suffers from a protracted implementation deficit, not least in some countries in Southern and Eastern Europe, which do not have much experience as destination countries and may lack the administrative capacities or the political will to establish a functioning asylum system. Even if the EU could agree on a quota system for relocating all asylum seekers among the Member States without an opt-out, a distribution key based on GDP and population size would require Italy to host a bit more than 14 % or 280,000 of the roughly two million asylum seekers who entered over the past two years, while the Greek share would be 1,9 % or about 38,000 – not excessively below (for Greece) or above (for Italy) the actual numbers of asylum seekers residing there at the moment.

In short, solidarity is a core problem of the CEAS, especially for new arrivals in Greece and Italy in addition to people already living there, but implementation is no less relevant. Existing directives and regulations did not always translate into administrative practices on the ground. The CEAS endures a protracted compliance deficit, which will have to be considerably reduced if the EU wants its asylum system not to fall apart sooner or later. To be sure, there may never be full compliance, but without an adequate level of implementation, mutual trust among the Member States will not resurface and solidary confidence in the law as the fabric of inter-state relations cannot be sustained.

4. Empty Promises? Replacing Directives with Regulations

What does the Commission propose in order to overcome these shortcomings? Besides the (correct) focus on the agencies, the legislative proposals concern a revision of the Reception Conditions Directive and the adoption of novel Asylum Procedures and Qualification Regulations instead of the present directives (besides the recast Dublin Regulation and a new resettlement framework). There are important innovations in the small print, but the overall direction is surprisingly unambitious: many articles are not changed at all, even if they relate to core deficits of the CEAS.

One prominent example is reception conditions, which characterise the deplorable state of the Greek hotspots. In this respect, Article 16(2) of the proposed Reception Conditions Directive is identical to the present Article 17(2) Directive 2013/33/EU by stipulating that Member States must guarantee an ‘adequate standard of living’ in terms of material reception conditions, which are defined only somewhat more concretely in Article 2(7) as including housing, food and clothing together with, as a novelty, ‘other essential non-food items …, such as sanitary items.’ While the latter addition is welcome, it does not establish the level of clarity a ‘genuine’ CEAS needs, even though the reinforced asylum agency shall be authorised to establish guidelines and best practices.

Readers not familiar with the intricacies of secondary legislation may nonetheless perceive the proposals as an essential way forward, since the Commission suggests to replace the Asylum Procedures and Qualification Directives with Regulations. That sounds grand, but guarantees more uniformity only in so far as the substance of the future regulations contains detailed prescriptions – something the proposals do not always achieve (as the example of living conditions illustrates). Moreover, a regulation may be directly applicable, but it still needs to be applied by domestic authorities; their effectiveness continues to be depend on administrative capacities and practices on the ground. The switch could turn out, therefore, to be primarily symbolic. Remember that the direct applicability of the Dublin III Regulation did not prevent its widespread irrelevance in practice.

6. Safe Third Countries: beyond Reactive Legal Design

Arguments about future legislation do not concern the internal functioning of the CEAS only, but relate also to activities at the external border, including cooperation with Turkey and, possibly, countries in northern Africa – a theme which took centre stage at the European Council meeting in Valletta on 3 February 2017. Corresponding policy debates primarily concern the instruments of external relations and the powers of the agencies, in particular Frontex, but the debate can have repercussions for the design of asylum legislation insofar as border procedures and the safe third country rule are concerned. In both respects, the Commission Proposals are rather conservative: they essentially confine themselves to codifying the status quo and do not suggest major changes, although the revised Asylum Procedures Regulation reacts to lessons learned from the EU-Turkey Statement.

In relation to safe third countries, Article 45 of the proposed Asylum Procedures Regulation suggests, in particular, that a third state need not have ratified the Geneva Convention without geographical limitation, as long as it guarantees all the rights guaranteed therein in practice (Article 45(1)(e)). Moreover, the Commission Proposal continues to require a personal connection between an asylum seeker and a place to which he/she is returned, but indicates that transit through a country may contribute to such a link (Article 45(3)(a)). Both changes react to lessons learned over past month.

Conventional wisdom has it that the future is not the past and, indeed, the context of EU-Turkey cooperation, to which the Commission reacts, may differ markedly from future challenges the CEAS could be confronted with, in particular on the Central Mediterranean route. The legislature may want to reflect, therefore, on how future crises can be dealt with – in the same way as Chancellor Merkel supports reinforced cooperation with countries in northern Africa following the rationale of the EU-Turkey deal.

In this respect, it is important to understand that existing rules on safe third countries go beyond the minimum requirements enshrined in the Geneva Convention, the ECHR and the EU Charter. Closer inspection shows, for instance, that the personal link criterion, currently enshrined in secondary legislation, is not mandatory under international law, since it aims, primarily, at ensuring that the third state concerned is willing to receive the person concerned in practice (see, by way of example, the study by Stephen Legomsky on protection policies in third countries and the reaction of UNHCR to a query by the British government). The EU legislature could decide, therefore, to amend secondary legislation in order to allow Member States to refer an asylum seeker who had disembarked from Libya to effective protection in a safe third country other than Libya.

What is more, the level of protection to be guaranteed in a third state need not be in full compliance with all provisions in the Geneva Convention (with or without ratification) as currently prescribed by Directive 2013/32/EU. International practice concentrates, rather, on full and unconditional compliance with non-refoulement obligations together with the provision of ‘effective protection’ – a level of security the Executive Committee of UNHCR defines as ‘access to means of subsistence sufficient to maintain an adequate standard of living’ (here in para 14 referring to the outcome of an Expert Roundtable). It would be possible, therefore, for the legislature to lower the level of protection the safe third country has to guarantee below the threshold currently foreseen. Access to the labour market, for instance, appears not to be mandatory.

Finally, a major difference between Turkey and countries in northern Africa concerns the overall level of security, which may render it impossible, even with massive EU support, to qualify countries as being generally safe. For that reason, the German minister for the interior recently suggested to complement the provision on safe third countries with a new rule on safe ‘regions’ or ‘places’, where effective protection would be guaranteed, possibly with financial and logistical by the international community (last weekend, he received the support from the leader of the parliamentary group of the German Social Democrats). Such a novel provision on protection in safe regions need not be mandatory: it could be used as a crisis mechanism for special circumstances.

Conclusion: the Way Forward

It remains the prerogative of the legislature to decide on the level of protection to be enshrined in secondary legislation beyond the minimum requirements laid down in the Geneva Convention, the ECHR and the EU Charter. Primary law limits these political choices constitutionally but does not pre-empt them; there is room for political discussions on how the future shape of the CEAS should be. It seems to me that we should be careful not to frame corresponding debates in binary terms, which portray a specific proposal as either restrictive or generous in terms of refugee protection. In the same way as constitutional law does not forestall political decisions, the evaluation of policy choices will always depend on the circumstances in which an instrument is used.

Debates on protection alternatives elsewhere are a case in point. It is one thing – as Australia does – to establish indefinite detention centres for those trying to enter the country irregularly, including for those in need of protection. It is quite another thing, however, to refer asylum seekers to a safe third country (or region) in a mass influx scenario provided that such a policy is combined – in line with the preferences of Chancellor Merkel – with substantial support and a generous resettlement programme, including for those who are sent back to a third country initially. The latter would be much more compatible than the former with the ‘spirit’ of the Geneva Convention.