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Sparing the Camel's Back: Fixing the Common European Asylum System

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About The Author

Luc Edwards (Guest Contributor)

Luc is currently studying for his LLM in International Law at the University of the West of England. His main areas of interest include public international law, human rights and the growing relationship between businesses, globalisation and human rights. Outside of the law he enjoys producing his own music, football, and skiing.

Since the mid-20th century Europe, as a geographical region and a legal person, has faced multiple influxes of refugees, following events such as the 1968 Prague Spring, the First Gulf War and the Syrian Civil War. In an effort to manage the flow of asylum seekers, the EU began developing the Common European Asylum System (CEAS) in 1999. Comprised of a number of legislative mechanisms adopted between 1999 and 2005 (although the current CEAS takes much of its shape from 2013 reforms), the system aims at creating a fair, uniform asylum policy which treats applicants to high standards, regardless of point of application across the whole of Europe. The system also aims to foster solidarity, cooperation and rapport between Member States and Third Countries (ie. countries outside the EU). However, the system is currently in crisis. This piece highlights the problems faced by CEAS before providing some possible solutions to tackling the current migrant crisis, as well as preparing CEAS to deal with any future crises.

How does CEAS work?

At its core, the Common European Asylum System aims to create a set of common standards across the European Union that will ensure fair treatment of asylum seekers and make sure their cases are treated the same regardless of where in Europe they apply for asylum. These standards were enshrined under Art 78(2) TFEU, and Member States have an unavoidable legal obligation to assist in the operation of CEAS, especially when coupled with the principle of sincere cooperation under Art 4(3) TEU:

Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

An examination of the provisions of Art 78(2) TFEU provides that the key objectives of the CEAS (for example Art 78(2)(a), the ‘uniform status of asylum for nationals of thirds countries, valid throughout the Union’) must be in the form of primary EU laws stipulating what must be achieved and upheld by CEAS. Whilst Article 78(2) primarily concerns asylum policy within the EU, Article 78(2)(g) provides for ‘partnership and cooperation with third countries for… managing inflows… subsidiary or temporary protection’ of the CEAS, showing  a willingness to adopt innovative solutions from outside of the bloc.

Whilst the European Asylum Support Office (EASO) was established in 2010 to support cooperation and implementation of the system, the CEAS in its present form emerged in 2013 with a wave of new legislation. This included the implementation of the 2011 Qualification Directive regarding criteria for application, the recast Asylum Procedures Directive concerning the lodging of applications, and the recast ‘Dublin III Regulation’ which determines the Member State responsible for processing the asylum request. Accompanying these instruments are also the recast Reception Conditions Directive ensuring the correct treatment of those waiting for a decision on their application, and the recast ‘EURODAC Regulation’ supplementing the Dublin III Regulation through the use of the EU-wide European Dactyloscopy fingerprint identification system.

These developments seem to be a step in the right direction towards a common asylum system, but a range of different actors have exposed problematic areas that must be overcome for truly effective operation.

Problems with the CEAS

The Solidarity Issue

One key problematic area for CEAS regards the European concept of solidarity between Member States. Explicitly stated as a key European value under Art 2 TEU, the concept of solidarity is intrinsic to the operation of CEAS. Art 67(2) TFEU and Art 80 TFEU make clear that a common asylum system must be based on both solidarity between Member States, and on the ‘fair sharing of responsibility’.

However, waning solidarity within the EU is apparent in a number of places, from Brexit to the resistance of the Visegrád Group (V4) of Czechia, Hungary, Poland and Slovakia.  In 2017 two members of the V4 tried and failed to appeal a 2015 Council Decision which sought to relocate migrants to aid Italy and Greece during the migrant crisis. The rejection of a compulsory refugee relocation quota by 15 Member States, including the V4, is perhaps the most glaring example of how non-cooperation in this field hampers the attainment of a comprehensive solution.

The Adoption of a ‘Common-Minimum’ Standard

A second failing of the CEAS may be attributed to a lack of harmonisation following the 2013 revision of the system mentioned earlier. The purpose of this revision was to fully harmonise Member State asylum policy to create a unified body of law, but in reality the legislation central to CEAS merely instructed Member States to adopt a ‘common standard’. Rather than harmonising standards across the EU, the ‘common standard’ allowed for the retention or even future adoption of provisions more favourable to refugees in some Member States, resulting in the creation of a common-minimum standard where some Member States are still more favourable than others. This undermines one of the main aims of CEAS, to create a uniform standard across the EU no matter where asylum seekers apply.

An example of this inequality is Member States’ restrictions on labour market access. For example, asylum-seekers in Sweden are able to immediately commence employment following their application whilst those in Germany must wait three months, and those in the Netherlands must not only wait six months but also cannot work for more than 24 weeks over a one year period. This disparity is exacerbated by the lack of EU competence over areas in the public domain that may impact asylum seekers (such as access to healthcare and education) and differences in Member State legislative traditions during implementation, as these subtle differences can lead to unique legal conventions that prevent the emergence of a truly uniform area. Whilst uniformity is maintained in some areas, for example reception conditions, the differing standards in other areas allow ‘asylum-shopping’ to flourish, which in turn frustrates the system further.

A System Unable to Cope

Another problem hindering CEAS is undoubtedly the inability of the system to cope with a large surge in migration, as witnessed during the 2015 migrant crisis.  For example, the Dublin III Regulation pins the legal duty of responsibility for examining asylum applications on the Member State of first entry. In practice, this results in the internal asylum processing systems of peripheral Member States, primarily Greece and Italy, becoming overburdened with applications due to their geographical proximity to conflict areas such as Syria and Libya.

This refugee mismanagement has resulted in the formation of camps, for example in Lampedusa, Italy, or Eidomene, Greece, which in turn bring their own challenges to the CEAS, namely the challenge of providing basic amenities such as healthcare or food, and attempting to prevent the abuse of human rights set out under Charter of Fundamental Rights of the European Union. Upholding the standard set by the Charter, however, has proven difficult given the circumstances, illustrated through case law such as Joined Cases C-411/10 and C-493/10 where it was held that returning an irregular migrant to their ‘first point of entry’ under the (now-defunct) Dublin II Regulation could constitute a breach of human rights if the asylum seeker was at risk of subjection to dehumanising conditions.

Proposals for Solving the Problems

Due to the complexity of the issues facing CEAS, they should be considered as what design theorists Rittel and Webber described as ‘wicked problems’. Typically, such problems lack ultimate solutions, are highly unique, and give little room for trial-and-error based approaches.  Implementing a truly common asylum system will require cooperation from a diverse array of groups, including but not limited to NGOs, European citizens, governments, and asylum seekers themselves in reaching fair solutions.

A True ‘Solidarity Clause’

The first step in creating an effective, EU-wide asylum system would be to overhaul the concept of European solidarity to create a clearly defined, enforceable principle which truly considers the interests of Member States, European citizens and asylum seekers alike. Presently, solidarity between Member States is required in under Art 67 TFEU;  in practice this is often ignored by Member States, as exemplified by the rejection of refugee quotas in the most recent crisis.

A new, solid definition of the principle of solidarity, specific to the field of asylum and migration and enshrined in hard law would ease the situation, as this would allow the Court of Justice of the European Union to hold those breaching the principle, for example the Visegrád Group, accountable. In constructing such a provision Article 222 TFEU – which binds Member States to support each other in the wake of a terrorist attack or disaster, similar to NATO's Article 5 - could act as a template, owing to the clear and precise nature of the Article, along with the comprehensive guidelines issued for its implementation in Council Decision 2014/415/EU.

It must be noted, however, that presently the principle of solidarity is often conceptualised in the context of state actors dealing with security, as evident in Art 222. If adopted as such in the field of asylum law and policy, this model could result in unintended consequences, portraying asylum seekers as an inherent negative for a state, or indeed as a security issue. The way we speak about asylum seekers can already be dehumanising, from denoting them as burdens through use of the term ‘burden-sharing’ to more divisive terminology, such as the use of the word ‘swarm’ by David Cameron, then Prime Minister of the UK, or the ex-Polish MEP Janusz Korwin-Mikke who referred to refugees as an ‘invasion of human trash’. Considering the outright xenophobia peddled by some commentators, the events which occurred on European soil throughout the mid-20th century should act as a stark reminder of the possible consequences which could arise from this dehumanisation of the ‘other’.

The jurisprudence of the French Conseil Constitutionnel could act as a source of inspiration in articulating a different, human-centric definition, with the case of M. Cédric H. et autres acting as a stable foundation. The case surrounded French nationals providing humanitarian assistance to more than 200 illegal migrants, already within French territory, in contravention of articles L.-622-1 and L.-662-4 of the Code on the Entry and Residence of Foreign Nationals and on the Right to Asylum (CESEDA). The Conseil found the aforementioned articles of CESEDA in breach of the principle of fraternité, under Article 2 of the French Constitution. In short, this case confirmed the status of fraternity as a constitutional principle which allows for ‘freedom to assist others for humanitarian reasons without consideration as to whether the assisted person is legally residing or not within the French territory’.

If the principle of solidarity was applied to European asylum with a definition that prioritised human security rather than state security, more akin to fraternité than an anti-terrorism provision like Art 222, this could mitigate some of the issues arising from a system predicated on states sharing the ‘burden’ of refugees. It could also improve quality of life for those in the asylum process through enhanced state-level protections and greater civilian-level mobilisation in the name of humanitarianism.

Uniformity over Harmony

A second step in reforming CEAS could involve overhauling the EU as an organisation, as opposed to an overhaul within a specific field. The EU is unique in international relations, a hybrid of federation and confederation with a governance system striking a balance between supranationalism (powers delegated to a power above states) and intergovernmentalism (co-operation between national governments). This is exhibited by the differing roles and competences of the European Commission (which imposes legislation on Member States) and the European Council (which is made up of the heads of Member States).

In its current form, it is clear that the legal mechanisms underpinning CEAS are an attempt to bring together the differing national asylum practices, under the intergovernmental aspect of EU governance, into one body of legislation. As mentioned above, however, this attempt merely establishes a minimum standard within Europe, which in turn creates its own problems, such as excessive strain on the asylum systems of certain Member States on the front line of the crisis.

Increasing the degree of uniformity in the field of asylum, as opposed to setting a minimum standard, would therefore have positive implications for peripheral Member States as well as CEAS itself. The first step in doing so would be to give the EU exclusive competence, as opposed to its current status of shared competence, in the field of asylum and migration, thereby shifting the current balance of power away from intergovernmentalism and towards supranationalism. Alternatively, the EU’s competences in the field of asylum and immigration could be modelled on its competence in other fields, such as the free movement of persons.

Member State non-cooperation has greatly inhibited the CEAS, and the existence of a central authority on asylum would deter and prohibit Member States, either individually or in aligned groups such as the V4, from straying from EU-level policy without the risk of being held accountable for violation of the rule of law. A swathe of mechanisms would be available to hold Member States accountable, including those already at the disposal of the EU in other competencies (e.g. lump sums and penalty payments available under Art 260(2) TFEU, preliminary references under Art 263 and judicial review under Art 267). New mechanisms could also be establish modelled on good practices at the national level, e.g. Belgium’s use of a Concertation Committee to settle conflicting policies between its different French and Dutch speaking federated governments.

Inspiration could also be drawn from the experience of federal States, such as Germany and the United States of America, and their effective utilisation of both quotas and relocation in domestic asylum settings. Whilst the German system assigns quotas based on tax revenue and population size, the American system takes more factors into account. The US employs relocation agencies in tandem with the federal government to determine refugee and community needs and resources, resulting generally in refugees being allocated to wealthy areas of low unemployment. This socioeconomic determinant, coupled with responsibility for asylum at a federal level, prevents ‘frontloading’ of the system where entry points settle a disproportionate number of refugees, as currently seen in Greece and Italy, but also grants greater rights to the refugee, for example the ability to seek employment in other areas within the federation. Relocation based on socioeconomic factors could also account for other issues, for instance by using the demographics of asylum seekers (largely healthy and working age) to support areas of Europe suffering most from the generally ageing population.

Conclusions

It is evident that Europe’s current asylum system is not properly equipped to deal with the scale of the problem it is facing. The failure of the current system has had repercussions not only for migrants and front line states like Italy and Greece, but also for the unity of the EU as a whole. However, further scrutiny of these issues shows that these are not unstoppable forces nor immovable obstacles.

Whilst it is clear that unchallenged, the problem will merely grow and cause more strife, upon the facilitation of true cooperation between Member States the size of the burden – on the EU as an organisation, Member States and refugee alike – can only diminish, paving the way for a true, safe area of sanctuary within the walls of ‘Fortress Europe’. However, if this problem is not met collectively by all Member States concerned, then the common asylum system may well go the way of the camel overburdened by straw.

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Tagged: European Union, Human Rights, Immigration

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