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By Dr Eleni Karageorgiou and Dr Vladislava Stoyanova, Lund University

 

The New Asylum and Transit Countries in Europe During and in the Aftermath of the 2015/2016 Crisis edited by Vladislava Stoyanova and Eleni Karageorgiou discusses the state of asylum at a national and sub-regional level, and respective realities and legal challenges. The situation captured across the book’s varied contributions suggests that the Common European Asylum System is beyond repair or reform, and that a radical rethink is needed. This short piece highlights three main dynamics that are critically reflected upon to consider a radical rethink of a new base for European asylum law and policy.  

THREE MAIN DYNAMICS

  • NEW EU ASYLUM COUNTRIES

Exploring the formation of asylum at the national level in Hungary, Slovenia and Croatia, it may be noted that not long ago these EU Member States had nothing close to a developed asylum system in place, this is why their EU membership had to be followed by the absorption of the relevant EU legislation in their legal orders. Unlike many of the older Member States who had the chance to participate in the negotiations and adoption of the main asylum instruments, these states accepted a pre-existing legal and policy reality which was not necessarily meant to accommodate the asylum demands and migration issues specific to their region. What is addressed in the contributions is the degree of autonomy enjoyed by the domestic legislator and the practical consequences stemming from this discretion, especially in relation to three areas: access to territory, access to asylum procedures, and application of the safe-third country rules. In reviewing the legislative changes in Hungary, Slovenia and Croatia since 2014, it can be noted that these are heavily modelled on the restrictive policy measures undertaken by other EU Members. As a result, although firmly embedded in international and European law, asylum law remains insufficiently implemented in the domestic legal systems in question.

  • THE NEIGHBOURING TRANSIT COUNTRIES

The EU’s neighboring countries, forming the so called Balkan route – Turkey, Macedonia, Serbia and Albania –  have played a significant role during the crisis. As with new EU asylum countries, these countries lack experience in dealing with the reception and treatment of migrants and refugees, as well as  in the adoption and proper implementation of integration policies. The movement of migrants and refugees towards the EU through the Balkan Route during the crisis exposed the unpreparedness of both the Union and the countries located in the broader region in coping with such events through meaningful cooperation. In addition, they suggest that the EU efforts to foster capacity building in these countries are likely to have unexpected implications in terms of refugee rights, as these efforts themselves are underpinned by contradictory assumptions and objectives (migration control rather than protection). As a result, the few positive outcomes of cooperative arrangements such as the financial aid provided by the EU to support refugees within the EU-Turkey deal seem to come at the expense of core refugee law principles.

  • THE QUESTION OF SOLIDARITY IN THE REGION

In an effort to understand the distributive effects of the European asylum mechanisms in combination with the reality of refugee movements, evidence suggests that national governments, both within and beyond the EU, are likely to continue informing the interpretation and implementation of asylum law and policy in the EU. Within this context, any future reform of the Common European Asylum System should take all interests into account, and aim at long-term rather than ad-hoc responses to the uneven distribution of asylum responsibilities amongst states.

THREE POLICY SHIFTS

The Common European Asylum System, for all its flaws, became a driving force of legal developments in asylum both on the ground and at the national and sub-regional levels. Nevertheless, the 2015/2016 crisis exposed the incoherence in the circulation and the transplantation of asylum norms across Europe, on the one hand, and the disconnection between the law and its application, on the other. In particular, the crisis appears to have triggered three national and sub-regional policy shifts:

1. Faced with the possibility of becoming the main destination for asylum seekers and refugees after Germany, Sweden shifted from actively welcoming asylum seekers to implementing strict asylum policies. Similarly, faced with the possibility of becoming a transit country, Albania altered its rather neutral position to one that returned ‘undocumented’ migrants to Greece. Furthermore, Hungary moved from being a Member State which in the course of adopting the EU acquis was more on the liberal side, to a country showing total denial of the asylum acquis and disapproval of decision-making in the EU. This demonstrates the great influence that states opposing cooperation exert on the application of asylum norms. From a fundamental rights perspective, the EU and non-EU countries in question appear to have operated under the assumption that asylum seekers and refugees are ‘a burden’ to be avoided at all costs. In other words, a refugee is not the person to be protected but a person to be fenced out. This ‘preservation of the system over protection’ rationale is reflected, among others, in the humanitarian visas X X case where the CJEU clarified that any state willing to provide refugees with alternatives to accessing asylum would have to deal with this individually as a matter of national policy. This seems to support the argument that the responsibility to protect applicants from refoulement is placed on each Member State individually while there is a collective responsibility to control and deter migrants and refugees from entering the EU.


2. Some countries both within and outside the EU, such as Slovenia and Serbia respectively, shifted from ‘transit’ to ‘destination’ countries. This resulted in a redirection of their policy from ensuring adequate treatment to migrants passing through their territory (in the form of shelter and humanitarian supplies) to fundamentally improving their asylum procedure and reception conditions. However, it seems there was no adequate effort from the EU nor the CJEU, as the guarantor of fundamental rights within the EU, to avoid another ‘MSS’. The CJEU had the opportunity in both the A.S. and Jafari cases to declare the first entry criterion in Dublin Regulation not suitable within a context of a crisis, chiefly as opposing the principle of solidarity between states. The court could have opted for a circumstance-specific interpretation of the Dublin Regulation based on relevant EU and international norms and principles which would have alleviated some of the disproportionate pressure put on the countries in question and, most importantly, make it more likely for asylum seekers to receive proper treatment (see AG’s Opinion). The Court also had the opportunity to clarify the limitations of readmission agreements such as the EU-Turkey statement from a human rights perspective and to ‘save’ the EU’s legitimacy. It did neither, but instead preserved the integrity of the system despite there being no chance of its effectiveness.

3. Countries that were once on the sidelines of asylum in Europe have started to play a significant role in shaping the asylum system in the EU. The case of Macedonia, for instance, highlights the significance of migration and asylum in the European integration process and explains why the EU needs to take these countries seriously in the future.


The radical rethink of the Common European Asylum System should take these three shifts as a starting point. Any reform that does not take the above into consideration is likely to contribute to a less effective, less solidary and less human-rights oriented system, eventually transforming the crisis into the new norm.