EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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by David Fernández Rojo, PhD Researcher, University of Deusto

This blog article also examines the key novelties included in the amended proposal for a Regulation on the European Union Agency for Asylum, as this was put forward by the European Commission on 12th September 2018 following the speech on the 2018 State of the Union by President Juncker.

Introduction

From May to July 2016, the Commission put forward a wide-ranging European Asylum package, which included the establishment of a European Union Agency for Asylum (EUAA). The Council and the European Parliament reached a partial agreement on 28 June 2017 on twelve chapters of the Regulation on the future EUAA with the exception of Chapter 1 (“The European Union Agency for Asylum”), Chapter 3 (“Country information and guidance”), Chapter 5 (“Monitoring”), and Chapter 9 (“Organization of the Agency”). President Juncker announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to “further develop the European Asylum Agency to make sure that Member States get more European support in processing asylum seekers in line with the Geneva Convention”. On the same day, the Commission that welcomes the agreement concluded by the legislators released an amended proposal containing only targeted amendments reinforcing the operational tasks of the EUAA. This blog post analyzes the key novelties tabled in both 2016 and 2018 Commission proposals, and critically assesses what changes they will bring about to EASO’s current mandate in comparison with the mandate of the European Border and Coast Guard following Regulation 2016/1624 of 14 September 2016.

The Agency’s Monitoring Role

The European Border and Coast Guard agency determines a technical and operational strategy for European integrated border management, to which the Member States should conform to (article 3 Regulation 2016/1624). Although the EUAA is not mandated to set out a comprehensive strategy of asylum in a similar manner, the agency, through guidance on the situation in third countries of origin, will “ensure greater convergence and address disparities in the assessment of applications for international protection” (Proposal for a EUAA, COM(2016) 271 final, 04.05.2016, p. 7). The EUAA will “develop a common analysis on the situation in specific countries of origin and guidance notes to assist Member States in the assessment of relevant applications” (article 10(1) partial agreement EUAA). Importantly, as soon as the EUAA’s Management Board endorses the guidance notes, the Member States should take them into account when examining applications for international protection, without prejudice to their competence for deciding on individual applications (article 10(2a) partial agreement on the EUAA referred above).

The new monitoring role of the EUAA will also indirectly contribute to shape a common strategy of asylum in the EU. A key difference between EASO and the future EUAA will be its monitoring role in order to guarantee that the national authorities are sufficiently prepared to manage exceptional and sudden pressure in their asylum system. Should the EUAA’s information analysis raise serious concerns regarding the functioning or preparedness of a Member State’s asylum or reception systems, the agency, on its own initiative or at the request of the European Commission, may initiate a monitoring exercise (article 14(2) partial agreement EUAA).

The Member State concerned will receive the findings of the monitoring exercise and the draft recommendations of the EUAA’s Executive Director on the basis of which it should provide for comments. Taking Member State’s comments into account, the EUAA’s Management Board will, by a decision of two-thirds of its members, adopt those recommendations (article 14(3a) partial agreement EUAA). As with the EBCG’s vulnerability assessments (article 13 Regulation 2016/1624), the future EUAA will be conferred a recommendatory power in order to put forward measures to be adopted by the national authorities. Nevertheless, Member States will still maintain indirect control of the EUAA’s recommendations (see here) through the enhanced majority that is required in the Management Board.

Whereas the Commission did not initially propose that the EUAA’s Executive Director should be able to appoint experts from the staff of the agency to be deployed as liaison officers in Member States, the provisional text agreed on 28 June 2017 indicates that liaison officers “shall foster cooperation and dialogue between the Agency and the Member States’ authorities responsible for asylum and immigration and other relevant services” (article 14a(3) partial agreement EUAA). Like the EBCG’s liaison officers, they will facilitate the monitoring role of the agency by reporting regularly to the Executive Director on the situation of asylum in the Member States and their capacity to manage their asylum and reception systems effectively (article 14a(3) partial agreement EUAA).

The EUAA will thus be in charge of monitoring “the operational and technical application of the CEAS in order to prevent or identify possible shortcomings in the asylum and reception systems of Member States and to assess their capacity and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems” (article 13(1) partial agreement EUAA). With this aim, the agency will namely assess the national procedures for international protection, staff available and reception conditions (i.e. infrastructure, equipment or financial resources) on the basis of the information provided by the Member State concerned and by relevant intergovernmental organisations or bodies, as well as by means of analysis on the situation of asylum and on-site visits that the agency may undertake (article 13 (3) and (4) partial agreement EUAA). This new monitoring task of the EUAA could so ultimately contribute to the effective and harmonised implementation of the CEAS by the Member States (see, here, here and here).

The Agency’s Expanded Operational Mandate

The EUAA will be in charge of organising and coordinating the appropriate operational support at the request of the Member States or upon the initiative of the agency in cases where the national asylum and reception systems are subject to exceptional pressure.

Following the lead of the EBCG’s Rapid Reaction Pool, an asylum reserve pool of a minimum of 500 persons should be made available by the Member States for their immediate deployment and should assist those national authorities subject to extraordinary migratory pressure (article 19A(6) partial agreement EUAA).

Moreover, the future Regulation on the EUAA details the functions of the agency in the recently established hotspots. Upon the request of a Member State facing an exceptional and sudden migratory pressure, the EUAA’s Executive Director should draw up a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union agencies, and deploy Asylum Support Teams (ASTs) as part of migration management support teams (article 21(1) partial agreement EUAA). In 2018, the European Commission proposed to further expand, upon the request of a concerned Member State, the scope for the use of the migration management support teams to any situation and not necessarily limited to circumstances of extraordinary migratory pressure (new article 21, COM(2018) 633 final).

The Agency’s Competence to Intervene

Another important novelty that the EUAA will bring is the possibility of making an emergency intervention. This will happen if the functioning of the CEAS is jeopardized due to:

• the insufficient action of a Member State to address the disproportionate pressure on the asylum and reception systems in a Member State (article 22(1) partial agreement EUAA) or
• the refusal of the competent national authorities to request or accept assistance from the EUAA (article 22(1) partial agreement EUAA) or
• the unwillingness of a Member State to comply with the Commission’s recommendations to implement an action plan intended to address serious shortcomings identified during a monitoring assessment (article 14(3a) partial agreement EUAA).

The procedure set out in article 19(1) of the EBCG Regulation regarding situations at the external borders requiring urgent action will be, to a more limited extent, replicated for the EUAA. The proposal for a Regulation on an EUAA originally stated that the Commission would be the EU institution in charge of adopting a decision by means of an implementing act to be taken by the agency in order to support the Member State concerned. However, the provisional text finally states that the Council should be the authority responsible for adopting such an implementing act like it is the case for the EBCG (article 22 partial agreement EUAA).

Three days after the Council adopts its implementing act, the EUAA’s Executive Director will draw up an Operational Plan and determine the details of the practical implementation of the Council’s decision (article 22(2) partial agreement EUAA). Subsequently, the Member State concerned will have three days to reach an agreement with the Executive Director on the Operational Plan and will immediately cooperate with the agency to facilitate the practical execution of the measures put forward (article 22(4) partial agreement EUAA).

The Agency’s Role in Examining Asylum Applications

Another novelty in comparison to the EASO will be the involvement of the EUAA in the examination of international protection applications. Several provisions of the EUAA mention that the agency will assist or facilitate the Member States in examining the applications of international protection submitted to their asylum systems. Alongside the operational and technical assistance that the EUAA should provide to Member States upon their request, the agency will facilitate the examination of applications for international protection (article 16(2)(b) partial agreement EUAA) submitted to the competent national authorities. In this regard, the Asylum Support Teams (ASTs) “should support Member States with operational and technical measures, including (…) by knowledge of the handling and management of asylum cases, as well as by assisting national authorities competent for the examination of applications for international protection and by assisting with relocation or transfer of applicants or beneficiaries of international protection” (recital 16 partial agreement EUAA).

The European Commission’s proposal tabled on September 2018 mainly centers on expanding the EUAA’s role in the administrative procedure for international protection. Specifically, the new Article 16a states that the EUAA’s asylum support teams should, among other measures, identify any needs for special procedural guarantees, carry out the admissibility and substantive interview, assess the evidence, and prepare decisions on applications for international protection. This means that, upon the request of a Member State, the future EUAA will be able to draft decisions on asylum applications. However, the text of the Regulation highlights that the decisions on individual applications for asylum remain the Member States’ sole responsibility (Article 16a).

Assessing the extent of the Agency’s power to examine asylum applications

Recital 46 of the Commission proposal repeats that “the competence to take decisions by Member States’ asylum authorities on individual applications for international protection remains with Member States”. The Commission, both in 2016 and 2018, clearly establishes that the future EUAA cannot be conferred decision-making powers.

The question to be answered is whether the EUAA will be able to jointly process applications for international protection, and if it cannot, to what extent the agency may support the processing of asylum applications. In 2013, the Commission adopted a study in which the concept of “joint processing” was defined as “an arrangement under which all asylum claims within the EU are processed jointly by an EU authority assuming responsibility for both preparation and decision on all cases, as well as subsequent distribution of recognized beneficiaries of international protection and return of those not in need of protection” (p. 114). This study put forward four options that progressively move from supporting the Member States in processing asylum applications through an agency such as EASO/EUAA, to designing a centralized EU authority with decision-making powers and responsible for all asylum processing.

Currently, the Member States remain exclusively competent to adopt decisions concerning the admissibility and applications for international protection. The next level of European integration would entail the introduction of a mechanism of joint processing in situations where a Member State is subject to an extraordinary number of asylum applications. Joint processing teams of EASO would be deployed and make recommendations on asylum cases to the requesting Member State, which would continue to have exclusive decision-making powers.

The ASTs of EASO deployed in the Greek hotspots are in practice already adopting recommendations on the admissibility of the international protection applications. These recommendations are in fact largely accepted by the Greek Asylum Service’s officials when adopting a decision (see here, here and here). Precisely, the future EUAA, upon the request of a concerned Member State, will formally be conferred the power to facilitate the examination of applications for international protection. Actually, the envisaged EEUA Regulation provides a legal basis to the practice that the EASO has already developed in Greece as acknowledged by the European Ombusdman in its decision on a complaint about EASO’s role in that Member State.

However, the future EUAA will be far from deciding, in first instance and in appeal, every asylum application within the EU. Instead, the European Commission has opted to reinforce the operational tasks of EASO and maintain the Member States as the exclusive decision-making authorities. Centralizing the asylum decision-making process would ensure a full harmonization of the national procedures and foster a consistent evaluation of protection needs. Nevertheless, this option demands a “major institutional transformation” and “substantial resources” that can only be envisioned in the long-term.

There are also doubts as to whether article 78(2) TFEU is a sufficient legal basis for conferring the power to exclusively adopt binding decisions on all asylum claims to a EU authority. Pursuant article 78(2)(d) TFEU, the EU shall ensure: “(…) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status”. The 2013 Commission’s study on the feasibility of joint processing of asylum applications in the EU considers that article 78(2) TFEU, read together with articles 78(1) and 80 TFEU, represents an adequate legal basis and opens up the possibility for a completely harmonized EU-based approach for joint processing of asylum applications within the EU. Tsourdi underlines however that a EU-level processing scenario in which decisions would be entirely undertaken by a EU authority instead of the Member States is legally impossible under article 78(2)(e) TFEU “which envisages that ‘a Member State’ is ultimately responsible for the examination of an application” that is the legal basis if the Dublin regulation.

Conclusion

Although the European Commission keeps referring to a fully-fledged agency for asylum matters in the EU, the EUAA will neither be conferred decision-making powers regarding asylum applications, nor executive or enforcement tasks on the ground. As is the case with the EBCG that did not establish a European Border Guard for managing the European external borders (see here, here, here or here), the future EUAA will rather be given an assisting role in the examination of applications of international protection by Member States (see here). The EUAA will be far from processing and deciding asylum applications made in the EU. Instead, the future Regulation on the EUAA opts for reinforcing the operational tasks of the agency and maintaining the Member States as the exclusive decision-making authorities. This should be de jure the situation in the future but once again one will have to check what will happen de facto.