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

by Evelien Brouwer, Vrije Universiteit Amsterdam , Conny Rijken, Tilburg University , and Ralph Severijns, ACVZ  

This blog is based on the advice given by the Dutch Advisory Committee on Migration Affairs (ACVZ). The full report is available in Dutch and in English.

For some years there has been considerable criticism of the uneven distribution of asylum applications and the responsibilities related to such applications across the member states of the European Union (EU). There are substantial differences between member states in the number of asylum applications received, both in absolute and relative terms. Furthermore, the way the member states deal with asylum seekers and asylum applications varies. This is remarkable, considering that the standards governing the treatment of asylum applications are identical in the majority of member states, and are laid down in binding EU directives, such as the Qualification Directive 2011/95, the Procedure Directive 2013/32, and Reception Directive 2013/33. A study of the Dutch Research and Documentation Centre ‘How (un)restrictive are we? Adjusted’ and ‘expected’ asylum recognition rates in Europe’ published in January 2016, established the substantial differences in recognition rates in the EU, even if these recognition rates had been adjusted for the differences in the composition of asylum populations in the European states. The uneven distribution of responsibilities and recognition rates has led to tensions within the EU. This contribution explores how the Common European Asylum System (CEAS) could be transformed into a system based on solidarity, in which the responsibilities of the member states vis-à-vis asylum seekers and permit holders can be shared fairly among them.

As a result of the large number of asylum seekers arriving in the EU, the debate on the unequal distribution of asylum responsibilities has flared up, leading to the introduction of several measures at EU level. One example is the decision of 22 September 2015 of the EU Council of Justice and Home Affairs to relocate a total of 160,000 asylum seekers from Italy and Greece to other member states. This relocation scheme only applies to asylum seekers for which the average proportion of being granted international protection in the EU is 75% or higher, thus leaving Italy and Greece with the ungrateful task to return migrants whose application is considered to be unsuccessful. Given the difficulties on return especially involuntary return (COM(2014) 199fin), these countries will be faced with high numbers of extended procedures and irregular migrants if distribution continues along these lines. However, the implementation of the relocation scheme has not been without difficulties and causes even greater tension between member states. On 4 February 2016, the European Commission communicated that only 481 asylum seekers had been relocated. The ACVZ considers the creation of a permanent responsibility-sharing mechanism, based on the principle of solidarity, to be indispensable for an adequate functioning of the European asylum-system. It has therefore developed a proposal that is both legally viable and practically feasible.

The necessity of such a lasting solution, enabling member states to share asylum responsibilities has also been underlined by Francesco Maiani in his article on this blog ‘Hotspots and Relocation Schemes’ . The ACVZ understands the term ‘asylum responsibilities’ as including not only the responsibility for processing asylum applications and providing reception during the application process, but also for the integration of asylum seekers whose application is accepted and for returning or dealing with those whose application is dismissed.

Starting points and legal framework

The goal of the Common European Asylum System (CEAS)
The goal of CEAS is laid down in Article 78 of the Treaty on the Functioning of the European Union (TFEU). It states that the EU will develop a common policy aiming to offer appropriate status to all third-country nationals in need of international protection and to ensure compliance with the principle of non-refoulement. This means that refugees and persons in need of subsidiary protection are eligible for international protection. The Qualification Directive determines which persons qualify for international protection in the EU, while the Procedures Directive describes how the need for protection is to be established in the asylum procedure. The right to asylum does not oblige a member state to grant a residence permit to all third-country nationals who are present on its territory and in need of protection. The right to asylum permits the transfer of asylum seekers to other member states, or safe third countries, as long as compliance with the principle of non-refoulement is guaranteed in that state and appropriate status is offered to those in need of protection. The question whether or not Turkey can be considered a safe third country to which migrants can be returned to, has been extensively dealt with in the blog from Peers and Roman.

Solidarity in the legal framework
Article 80 of the TFEU stipulates that the asylum policy of the EU is governed by the principle of solidarity and a fair sharing of responsibility between the member states. However, the content and meaning of the principle of solidarity is not defined in EU law. In its advice, the ACVZ considers the following elements important when applying the principle of ‘solidarity’ to the EU asylum policy:

1. solidarity in an international context requires at the very least that countries cooperate;
2. this cooperation is aimed at achieving shared goals that go beyond the interests of the individual sovereign state;
3. this requires a considerable investment by all cooperating states, and means that every participating state commits to the result of collective decision-making;
4. failing to adhere to the norms resulting from the shared decision-making process undermines the legal order of the EU.

In the ACVZ’s view, all EU member states have a shared duty to fulfil the responsibilities stemming from the CEAS, while no member state may evade these responsibilities, leaving it up to other member states, or institutions of the EU to achieve them. Member states must work together to ensure that the CEAS is properly implemented throughout the EU. In the advisory report the ACVZ describes how this principle relates to the following aspects of the CEAS: 1) border control, 2) registration, 3) responsibility allocation, 4) status determination, 5) return and integration, and 6) monitoring compliance with the CEAS.

Current system of distribution of responsibility for processing an asylum application
The Dublin Regulation sets out the criteria for identifying the member state responsible for examining an application. It does not contain a mechanism enabling member states to distribute these responsibilities between them. The underlying premise of the Regulation is that the member state that played the largest role in the asylum seeker’s entry into, or stay in the EU, taking account of his or her personal situation, is responsible for the asylum application. It is no secret that the Dublin Regulation does not fulfil all its objectives. Criteria are not always applied, or applied incorrectly. Complete and correct compliance with the Dublin Regulation would in itself result in a different distribution of asylum responsibilities. This would require a much greater focus on the ties an asylum seeker has with a specific member state, as well as a more generous application of the criterion that the presence of family members should be taken into account. However, such a distribution still does not reflect solidarity. To achieve a fair sharing of responsibilities, additional measures are necessary.

A proposal for a permanent mechanism for responsibility sharing

To achieve a fair sharing of responsibilities, a distribution mechanism should not be the exception – as is the case in the EU’s current reallocation plans – but the standard situation. A fair sharing of responsibilities will not be achieved without some form of coercion vis-a-vis the asylum seeker and vis-a-vis the member states. To this end, the ACVZ proposes amendments to Articles 3 and 13 of the Dublin Regulation. The current text of Article 13 determines that when no member state can be held responsible for the asylum application under one of the other Dublin criteria, the member state where the asylum seeker entered the ‘Dublin territory’ is responsible for examining the application. When it is impossible to establish where the asylum seeker entered this territory, Article 3 of the Dublin Regulation stipulates that the member state where the application is lodged becomes responsible for the application. In principle this Dublin system can be upheld but should in our view be supplemented with a provision stating that when a member state is confronted with a disproportionately large number of asylum applications, such as Greece and Italy, responsibility for future asylum applications in that state can be transferred to another member state which up to that point has received an disproportionately low number of applications. The latter state would be obliged to accept the transfer.

The aforementioned provisions should also refer to two new provisions to be added to the Dublin Regulation.

First, the Council of EU Ministers should be given the power to adopt a distribution key to establish a fair sharing of responsibilities. This key can be the same as the relocation scheme presented by the Commission in May 2015, in its European Agenda on Migration. It can then be used by the European Commission to determine, on an annual basis, the percentage of the total number of asylum applications each member state should be responsible for. Member states should provide the European Commission with the necessary data through Eurostat.

Second, the European Commission must be given the power to determine, every three months and on the basis of the distribution key, the distribution of asylum applications across the Member States. This means that the EU agency responsible for the EURODAC database (eu-LISA) in which all persons who apply for asylum are registered, should provide the European Commission with quarterly reports on the total number of asylum seekers registered in the EU and in each member state. The European Commission can then determine which states have received a disproportionate number of applications, and how many asylum seekers may in the next quarter be transferred by these member states to those with disproportionately few applications. The proposal also includes a possibility for the member state to indicate to the European Commission that it is faced with a sudden rise of asylum seekers, so that the Commission can decide to initiate the distribution mechanisms ad hoc. If distribution is based on the number of registered asylum seekers, this will create a built-in incentive for member states to register all asylum seekers. Thus it will replace the current incentive of member states not to register asylum seekers into Eurodac, with an incentive to register. The more they register, the sooner they will reach their allocated number of asylum seekers, allowing them to transfer new asylum seekers to other member states.

Combination with the Hotspot approach

The problems in the border states caused by the high number of asylum seekers entering these states (especially Greece) result in inhuman and degrading situations without the basic needs available for asylum seekers. Based on the CEAS, the EU Charter on Fundamental Rights and the ECHR, the EU is obliged to address this situation which can be done by setting up reception centres in the border areas in which fundamental rights of asylum seekers are guaranteed. The hot spots currently being established are an important step in that direction but contain some serious flaws in their design. Again the responsibility for the hotspots lacks equal sharing of responsibilities, costs and efforts because Greece and Italy are responsible for the establishment, albeit with financial support of the EU and staffing support from other EU member states. To provide for a hotspot approach that reflects solidarity, the EU should establish ‘European hotspots’ where the provisions of the Reception Directive are applied as minimum standards. After a first screening and determination of the responsible member state based on Dublin including the proposed supplement for transfer of responsibility in case of disproportionate number of asylum claims, compulsory distribution can take place from these European hotspots. The safe transfer of these asylum seekers, respecting their dignity and rights, can be arranged from the hotspots to the responsible member state. This will also prevent human smugglers active within the EU making profit from the current ‘migration crisis’ and the vulnerable position of asylum seekers. Furthermore, the organisation of transfers from ‘European hotspots’ to other member states, will diminish the necessity for members states to reinstall internal border controls.

Conditions

This proposal will not solve the problems related to the current migration crisis, nor does it take away the causes of migration. Therefore, our proposal must be considered in a broader context. A one-dimensional proposal is per definition bound to fail. Therefore other conditions need to be fulfilled if the permanent distribution mechanism is to function properly. These are: 1) further harmonization of the CEAS, 2) creation of future prospects for asylum seekers, and 3) continuing work on the external dimension of EU asylum policy.

Further harmonization
The ACVZ believes that further harmonization of the CEAS is essential. Asylum applicants have to be confident that their application will receive equal treatment in every EU member state. In other words, the outcome of the application should not depend on which member state processed the application. Without that confidence, the asylum seeker cannot be expected to accept the decision that the asylum application will not be dealt with in the country of his or her choice. This would lead to an increase in secondary migration flows. Further harmonization requires the European Commission to adopt a more active and strategic enforcement approach towards member states who fail to meet their obligations. In addition, it can reward states that take active measures to increase asylum capacity, or offer unused capacity to other member states, with extra funding. However, as always the member states themselves are primarily responsible for the correct and timely implementation of EU legislation. They should hold each other accountable in European Council meetings. As a last resort, it should even be possible to exclude member states from benefitting from the distribution mechanism. Finally, the ACVZ is of the opinion that in the future certain aspects of the CEAS could be implemented at European level. Examples include shared country of origin reports, cooperation between member states in decision-making and the registering of asylum seekers by EU personnel.

Future prospects
The ACVZ is aware that its proposal limits the freedom of the asylum seeker to pick and choose a specific member state for his or her asylum application. This could give rise to secondary flows of asylum seekers. The ACVZ proposes to compensate this lack of choice, by offering the prospect of mobility within the EU for persons who acquired international protection in one of the member states, after a two-year period and subject to certain restrictions, such as an offer to work or possibility to study in another member state.

The external dimension
Distributing asylum responsibilities between the member states will not influence the total number of asylum seekers seeking international protection in the EU. The Advisory Committee therefore also addresses the need to work on the external dimension of EU asylum policy. This includes the cooperation with third countries (ACVZ report Strategic Country Approach to Migration), the provision of legal avenues for migration, and tackling the main reason for which persons are fleeing to Europe, which is the lack of safety and peace in their countries of origin.

Conclusions and recommendations

The conclusions and recommendations are as follows.

Conclusions:

1) At present, the CEAS is not sufficiently based on the principle of solidarity. EU-law requires member states to concentrate their efforts on offering international protection to all who qualify for it. This means that appropriate status determination should be guaranteed in all member states in an equal manner. This requires the provisions of the CEAS to be viewed as collective responsibilities, demanding full compliance.

2) Asylum responsibilities are not shared adequately between the member states. This will not be achieved without amending the Dublin Regulation and Dublin system.

3) A fair and sustainable distribution system requires measures of further harmonization within the CEAS and the prospect of integration to all persons who acquired international protection in one of the member states.

4) A distribution mechanism is not the sole answer to migration crises and should be combined with the approach of EU-hotspots. External solidarity is also needed. A distribution mechanism does have the potential to enlarge the ‘protection capacity’ of the EU as a whole.

The ACVZ therefore recommends:

1) The development of a system that operationalizes the collective and shared mission of member states to offer international protection by making sure that CEAS responsibilities are truly based on the principle of solidarity. The European Commission and the member states should adopt a more stringent approach towards members states failing to meet their obligation to share responsibility.

2) The amendment of Articles 3 and 13 of the Dublin Regulation by supplementing the existing responsibility criteria in such a way that member states with a disproportionately large number of applications will be able to transfer future asylum applications to member states with a disproportionately low number of applications. This distribution mechanism could be activated by the European Commission and should operate under its authority. The European Asylum Support Office (EASO) or a new EU distribution agency could coordinate and support this distribution process.

3) The relocation of asylum seekers, taking place from EU hotspots established by the EU. After the determination of the responsible member state based on the Dublin criteria including the proposed supplement, safe transport can be arranged from the hotspots.

4) The incorporation of the standards laid down in the Qualification and Procedures Directives into an EU Regulation, thus ensuring that these standards will be applied more equally in all EU member states.

5) A stricter implementation of the current CEAS rules. This means that member states and the European Commission will have to hold member states that fail to meet their obligations accountable and make greater use of political and legal instruments to correct the situation.

6) The development of a common policy offering asylum seekers and permit holders future prospects. Since asylum seekers will no longer be able to influence in which member state they will have to submit their application, and following the determination of their status will be obliged to integrate, they should be offered the prospect of mobility throughout the EU, subject to conditions and after a certain time. This will help to prevent irregular secondary migration flows, and better regulate intra-EU mobility.

7) The enhanced use of resettlement from the region of conflict areas by member states and the European Commission as well as the creation of safe legal venues for migration to the EU. Efforts should also be made to make more effective use of common measures for the return of failed asylum seekers.