Common European Asylum System
EU constitutionalism seminar /Common European Asylum System /
(CEAS) /
Iwona Krzemińska /
2011-06-04 /
Asylum and immigration are among policies contributing to the Area of Freedom, Security and Justice in the European Union (AFSJ). The AFSJ is composed of a diverse and complex set of policy areas which consists, among others, of issues related to judicial cooperation in criminal matters, police cooperation, drugs, borders and citizenship. All of these areas have profound implications for the relationship between liberty and security in Europe, and for the fundamental rights of individuals as well. Until the beginning of 2010 in the European Commision there was a separate DG responsible for the AFSJ, often named from French abbreviation JLS. The last two Commissioners responsible for this DG were Franco Frattini and Jacques Barrot. In 2010 the DG was spread into two separate DGs: the DG of Security and Home Affairs and the DG Justice, which by some observers is seen as the increasing value of the AFSJ within the European Union.
In this paper there will be covered the Common European Asylum System, mainly from the legal perspective, but where it is inevitable with reference to economic and social issues. To introduce the subject and justify the choice from the wide range of AFSJ policy, I would like to refer to Mr Jacques Barrot: “the founding values of the Union, and our shared history of tragedy and reconciliation, in my view compel us to extend the hand of hospitality and solidarity with those facing persecution around the world. This for me is one of the greatest challenges, on a truly global scale, facing the future of European integration (...) the need for the improved integration of new arrivals, refugees and regular migrants remains. Immigration enriches European society and strengthens innovation in the economy”[1].
In the Introduction, there will be highlighted international refugee law binding all EU Member States and the current EU legal measures in the field (the Lisbon Treaty, Dublin II Convention and the Stockholm Programme). The main body of the paper is divided into two areas: the development of CEAS with reference to treaties, directives, programmes, action plans; and the role of the the European Court of Justice (ECJ) and regional jurisdiction.
Introduction
All EU Member States are signatories to the UN Convention relating to the status of refugees (the 1951 Geneva Convention) and have reaffirmed their utmost commitment to the protection of all persons at risk of torture or inhuman or degrading treatment in their country of origin. The inclusion of international protection in the AFSJ has made EU a new actor on the field of refugee protection. This arena is already well populated at the international level. Not only are there three UN Conventions that all Member States have ratified and which place protection obligations on signatory states (the Geneva Convention, the International Covenant on Civil and Political Rights and the UN Convention against Torture), there are also the institutional actors, including the UN High Commissioner for Refugees, responsible for a broad protection mandate. At the European regional level, the ECHR includes a duty of protection where there is a substantial risk that an individual would suffer torture, inhuman or degrading treatment if sent to his country. The European Court of Human Rights in Strasbourg has been vigilant in the protection of individuals from such risks. Into this crowded field the EU has moved and taken itsplace. However, this step has not been without certain perils[2].
At the moment there are five crucial directives which together contributes to the Common European Asylum System. One of the core measures of the CEAS was the Dublin II Regulation[3] whichallocates responsibility for asylum applications and the care of theapplicant according to specific rules that in practice usually means thecountry through which the asylum seeker first entered the EU isresponsible. Because of the inadequacy of reception conditions in onemember state (Greece), the constitutional courts of a number of othermember states have halted any returns of asylum seekers there and theEuropean Court of Human Rights has issued stays of return in numerouscases pending its examination of the situation.
The CEAS was introduced into EU treaty law by the Treaty of Amsterdam. But this is the Treatyof Lisbon which made significant step forward and which is covered closer in the second part of the paper. Briefly, the role ofthe Court of Justice in future decision-making on asylum after the Treaty ofLisbon will be crucial. On the other hand, any failure in this area willresult in a serious problem for the legal coherence of the EU and deepdamage to the EU’s reputation as an actor in the field. How the EU lives upto its commitments with respect to refugee protection law will be an importantmeasure of its human rights credentials.
The Stockholm Programme, which sets out a number of goals for the AFSJ for 2010-2014 looks towards a Europe of responsibility, solidarity and partnership in migration and asylum matters. As the EU population isageing, and the effective management of migratory flows is one of thegreatest challenges facing the Union. Immigration has a valuable role toplay in securing the EU’s strong economic performance over the longerterm. With the approach to immigration and asylum based on solidarity, EUwill seek to tackle illegal immigration networks, ensure the successfulintegration of legal immigrants and honour its obligation to provideasylum to victims of persecution. In May 2008, while finishing his cadency of JLSCommissioner,MrBarrotadmitted that not reaching the target of creating CEAS had a wider background:“I have fought passionatelyfor such a common system to be achieved by 2012. The economic downturnand rises in unemployment inevitably make member states more cautiousin these matters. The Commission was not able to convince the entireCouncil of the need for an immigration code and for applying the principleof mutual recognition of decisions to grant international protection”.[4]
According to MrJ.Barrot, the Stockholm Programme highlights the role of Europe in a globalisedworld. A robust external dimension to EU policies will ensure consistencywith the Union’s foreign policy as a whole, and enable EU to promote itsvalues in compliance with international human-rights obligations. Effectiveengagement with partners in non-EU countries and internationalorganisations in the area of justice and home affairs will be essential.This programme is the blueprint for developing the european area of justice, freedom and security in the years to come.
Development of CEAS
Since the mid-1980s EU Member States have saught to harmonise asylum proceedings across the Union. However, the process was difficult from the very beginning. In 1985 the European Commission, established a communication and consultation procedure on migration policies. In essence, the Commission required from the Member States to inform the Commission and the other Member States of data about workers entering from non-Member States and of any draft measures or policies applicable to these individuals. The Commission or a Member State could initiate a consultation procedure to exchange information, identify common problems, and suggest common measures to harmonize national legislation concerning these workers.
Denmark, France, Germany, the Netherlands, and the United Kingdom brought an action under Article 173 of the EEC Treaty, Treaty Establishing the European Economic Community, seeking a declaration that the communication and consultation procedure on migration policies was void. They were arguing that it had exceeded the scope of its authority and intruded into matters reserved to the national authority of the Member States. The state parties conceded that Article 117 of the EEC Treaty required Member States to improve working and living conditions for workers in order to establish and maintain a common market and that Article 118 authorized the Commission to promote cooperation between Member States in terms of the social conditions regarding employment and working conditions. They argued, however, that these legal provisions only concerned European Community workers who moved from one Member State to another. They accused the Commission of overreaching and encroaching upon powers left to the Member States because the Commission sought information about policy initiatives concerning the migration of individuals from non-Member States[5].
The ECJ Judgment of July 9, 1987[6] ruled that the Commission‘s decision requiring information concerning immigrants from non-Member States exceeded the Commission‘s authority. The ECJ upheld the power of the Commission to collect limited kinds of information directly relating to the workforce,but the ECJ agreed with the Member States that migration of individuals from outside the Member States – including information gathering about this phenomenon - was beyond the authority of the Commission and other EC institutions. This power resided in the Member States. The Commission had success on only one issue: collecting information concerning the integration of immigrants from non-Member States into the workforce of the Member States was permissible because it related to the functioning of the common market. In hindsight, the 1987 ECJ ruling marked the end of an era. When the ECJ ruled on the Commission‘s information gathering and sharing procedures in 1987, the law in effect was the Rome Treaty, the 1957 Treaty establishing the European Economic Community. As since 1987 there has been a whirlwind of treaty negotiations and ratifications in EU, accompanied by many vigorous disagreements about the extent of powers the Member States were willing to assign to EU institutions.
Five years after the 1987 ECJ Consultation Decision, the Treaty on European Union, known as the Maastricht Treaty, stated for the first time that Member States regard immigration and asylum policy as matters of common interest. The Maastricht approach envisioned an EU framework supported by three pillars, and specified that asylum policy fell within the third pillar, which concerned matters of ―justice and home affairs.[7]
Limited progress in the area of community asylum law’s creation was observed in the Maastricht era, when Community action was limited due to the fact that asylum and immigration issues were within the Third Pillar. This is contrasted with the more human rights based language of later treaties and policy documents, including the creation of the Area of Freedom, Security and Justice (AFSJ) where asylum and immigration became a central plank in the development of the EU and was placed within the first pillar - Community competence.[8]
The first significant step towards CEAS was the Dublin Convention, signed in 1990, but taking effect in 1997, as it took seven years of haggling among the signatories to come into force. This inter-governmental Convention was incorporated to the III Pillar under the Treaty of Amsterdam. This legal instrument allowed signatory states to return asylum seekers to the first country they reached in EU. The aim was to prevent multiple or several applications to Member States by asylum seekers. However, in practice the results were not satisfactory[9]. Mainly because the convention depended on documentation (states requesting a transfer to, for instance Germany, had to prove that the asylum seeker passed through its territory), and the destruction of documentation by asylum seekers is widespread. Furthermore, solidarity and cooperation between the Member States was weak. The most controversial issue was in 1998 between France and UK about refugees housed near Channel Tunel. But countries such as Greece, Italy or Spain felt increased pressure due to the Convention.
The Area of Justice, Freedom and Security was originally discussed in the Maastricht Treaty (Articles 2 and 29 of TUE), but was amended and given much greater prominence by the Amsterdam Treaty. Until this Treaty Member States retained power as to migration policies and the Commission could only promote cooperation between them. Change was slow and took place partly, as is well known outside the Community framework, with the Schengen Convention as the landmark. The Treaty of Amsterdam gave a new impulse, but the process remained extremely complex due to the double EU and EC regimes and Member States reluctance to give upprerogatives in the area of security and public order, the practical effects of the measure adopted were slow to be felt[10].
After Dublin, further harmonization was limited by: the lack of common definition of a refugee, a lack of agreement on burden sharing, and a lack of agreement on reception and processing standards. Already in 1999, at the Tampere Summit the European Council issued a call for the Common European Asylum System by 2004, with a uniform method of determining asylum within the Member States and a uniform status valid for refugees throughout the European Union . CEAS is meant to equalize burdens across the EU, as also to avoid so called ‘asylum shopping’ by offering one chance to access a common basket of legal social and economic entitlements[11].
The Tampere Conclusions stated: “This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be complemented with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. (…) In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union”.[12]
As the Soviet Union collapsed, the European Union worried that it would be engulfed with asylum seekers. Similarly, when Yugoslavia imploded, hundreds of thousands of refugees fled into EU Member States. The Austrian government estimated that four million asylum seekers had entered the European Union in the early 1990s, and called for joint action. Meanwhile, negative public opinion about refugee camps and asylum seekers who did not present bona fide claims intensified government concerns that trafficking organizations had grown more sophisticated in their delivery of asylum seekers and other migrants to Europe. These pressures convinced Member States of the desirability of a common asylum policy for the European Union. These and other developments generated the political will to forge a Common European Asylum System (CEAS).[13]
However, the events of 11thSptember 2001 shocked the politics of asylum and the immigration question was highly politicized which was mainly seen in Italy, France and the Netherlands. As a result the positive Tampere spirit became less influential and the progress towards CEAS was stalled, and in effect Tampere’s target was not achieved until now. A renewed commitment was made at the European Council Summit and expressedinLaeken Conclusions, December 2001. It was stated that the range of CEAS proposals already on the table were unsatisfactory and that the new approach was needed to “maintain the necessary balance between protection of refugees, in accordance with the principles of the 1951 Geneva Convention, the legitimate aspration to a better life and the reception capacities of the Union and its Member States”[14].
EC committed clearly to shift the balance towards policies more co-ordinated and effective, but also towards restrictive management of migratory flows. The Leaken Conclusions were that the member nations will not agree to changes until they are certain that the CEAS will be at least as restrictive at the regional level as their own policies are at national level. Generally the climate has stopped the progress with condition of developing more fully the policies of illegal immigration, people smuggling and mechanisms of returns. Despite the humanistic rethoric, the outcome was to continue repatriation and rejection of large number of asylum seekers[15].
The first EU asylum legislation was the Temporary Protection Directive of 2001[16], which in large part was a response to European fratricide in the 1990s. The refugees escaping the Bosnian and Kosovo wars often fled hastily and in great numbers, with disproportionate impacts on EU Member States. For example, Germany received 340,000 Bosnians in comparison to 15,000 who arrived in France, and 6,000 who reached the United Kingdom.[17] two years after the Kosovo conflict, the Temporary Protection Directive provides a mechanism for EU-wide response to dire situations. Specifically, mass arrivals of individuals fleeing armed conflict, endemic violence, and systematic violations of their human rights may lead to a short-term protection program in the European Union.
If the European Council declares that the preconditions to trigger EU-wide temporary protection have been established, all Member States must grant lawful residence to members of the designated group for one year, which may be extended by six month periods for a maximum of one more year. Art. 2(c) defines displaced persons, referring specifically to (i) persons who have fled areas of armed conflict or endemic violence, and (ii) persons at serious risk of systematic or generalized human rights violations. During that time, persons granted temporary protection will be provided with residence permits, as well as basic welfare, medical care, and housing. They will not be able to move freely within the EU and the Council may vote to end the period of protection at any time.