Steve Peers*

The EU is looking to overhaul its Common European Asylum Policy, and the Commission has laid out its suggestions in a new discussion paper. These proposals, which are expected to lead to further legislation, aim to address the flaws in the current system. This blog post will break down these proposals and analyze their potential impact.

The EU’s asylum policy has been developed in phases, with the initial legislation implemented between 2003 and 2005 and the second phase between 2011 and 2013. This latest communication outlines what is essentially a third phase, delving into various aspects of the EU’s asylum policy and even touching upon immigration. Before examining the specific proposals, it’s important to understand the UK and Ireland’s position. They are only bound by the first-phase asylum laws (and a select few from the second phase) and have the option to opt out of any future legislation. However, opting out of amendments to existing laws could lead to the termination of their participation if alternative systems prove unworkable.

Another key point is that any proposals put forward by the Commission require approval from both a qualified majority of participating Member States and the European Parliament, which is not guaranteed given the sensitive nature of this topic.

The Dublin system

A significant portion of the discussion paper focuses on revamping the EU’s Dublin system, which is currently governed by the Dublin III Regulation. The main issue with this regulation is that it places the responsibility of processing asylum claims on the first EU state the asylum-seeker enters, which has proven to be an insurmountable burden for countries like Greece with struggling economies and a surge in asylum applications.

Although the EU has attempted to remedy this through relocation decisions, aiming to transfer some asylum-seekers from overburdened nations like Italy and Greece, this approach has been met with resistance from Member States, resulting in a meager relocation rate. To resolve this, the Commission proposes two potential solutions: a compensation mechanism for Member States facing disproportionate burdens or a quota system that distributes asylum-seekers across the EU based on pre-determined rules. However, past attempts at amending the Dublin rules along similar lines have been met with little enthusiasm.

The second option, which involves allocating asylum-seekers amongst Member States based on a standardized set of rules, aims to create a more balanced system while still allowing for exceptions, such as cases involving family ties. However, this system proposes that the first Member State of entry would retain responsibility for processing asylum claims from individuals arriving from countries designated as ‘safe’ by the EU.

In both scenarios, the Commission suggests potentially revoking the EU’s Temporary Protection Directive. This Directive, created to handle mass influxes of displaced persons, has never been used for its intended purpose.

Eurodac

The Commission also proposes changes to the Eurodac Regulation, which mandates the collection and storage of fingerprints from individuals seeking asylum or crossing borders illegally. The primary purpose of this regulation is to determine whether individuals have previously applied for asylum or to identify their initial point of entry into the EU for the application of the Dublin rules. The database currently grants access to law enforcement and permits the tracking of irregular migrants. The Commission intends to harmonize these regulations with the proposed changes to the Dublin system and expand its use for migration control purposes, mirroring the objectives outlined in the smart borders proposals for an entry-exit system.

Procedures Directive

The Commission aims to replace the existing Procedures Directive with a more comprehensive regulation, establishing a standardized ‘common procedure’ to streamline the asylum process across the EU and discourage movement between member states. This new regulation would introduce new rules governing crucial aspects of the asylum procedure, including admissibility (whether an asylum-seeker should have sought protection elsewhere), the use of border and accelerated procedures, the handling of repeat applications, and residency rights during the application and appeals process. It would also harmonize the processing time for both initial applications and appeals. Notably, the second-phase Directive already includes common rules regarding initial application processing time, albeit not for the expedited process.

The Commission is particularly keen on harmonizing ‘safe country’ rules, encompassing both ‘safe country of origin’ (determining whether an asylum-seeker’s home country is safe) and ‘safe third country’ rules (whether they should have sought asylum elsewhere). The Commission proposes that the European Parliament and the Council adopt its 2015 proposal for a partially shared list designating the Western Balkans and Turkey as ‘safe’. However, this proposal has not been met with urgency by either institution. The Commission’s objective is to achieve greater harmonization regarding countries with a high volume of asylum applications. However, this proposal has been criticized for inaccurately categorizing Turkey as ‘safe’ despite its questionable human rights record and for not adequately safeguarding individuals with legitimate claims.

Furthermore, the Commission seeks to standardize the application of the ‘safe third country’ concept and establish a process for defining a shared list in the future to address inconsistencies between Member States that can lead to asylum-seekers being diverted or a ‘protection lottery’ where similar cases receive disparate outcomes. However, the practical implementation of these standards remains to be seen. The Commission’s and Member States’ support for designating Turkey as a ‘safe third country’ raises concerns about the direction of these policies. This designation is questionable due to Turkey’s non-application of the Geneva Convention to most asylum-seekers and documented instances of refoulement, inadequate treatment, and subpar standards.

Qualification Directive

While the Commission has been evaluating the existing Qualification Directive, which defines the terms ‘refugee’ and ‘subsidiary protection’ status and outlines the rights afforded to each group, this paper makes no mention of these findings. Instead, it focuses on two primary concerns.

Firstly, it calls for greater harmonization of rights for individuals granted protection, including a clearer differentiation between the two statuses. This entails positioning subsidiary protection as inherently temporary, which contradicts the second-phase Directive’s acknowledgment that this form of protection is often not temporary and its harmonization of the two statuses in most areas.

Secondly, the paper proposes limiting protection to the period deemed necessary. This suggests a move toward a downward harmonization of the Directive, with the intention of reducing incentives to seek asylum in the EU. This would involve implementing regular checks to determine whether an individual still requires protection, a concept already present in the Geneva Convention. However, framing this within the context of reducing “undue pull factors” suggests a more restrictive approach.

The Commission plans to replace the existing Directive with a Regulation, with the objective of harmonizing regulations to reduce incentives to travel to and within the EU. This will involve standardizing rules related to identity documents for asylum-seekers. In the long term, this could lead to the mutual recognition of decisions and the transfer of protection, reflecting the Treaty obligation to create a status valid across the EU, a concept the Commission avoids explicitly mentioning.

Reception conditions

The Commission intends to implement ’targeted’ amendments to the Reception Conditions Directive, which governs the daily lives of asylum-seekers outside the procedural aspects of their asylum claims. While specific details are lacking, the paper indicates that the amendments aim to discourage movement to and within the EU while ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

The paper repeatedly emphasizes its objective to restrict the movement of asylum-seekers within the EU, a departure from the usual approach of EU legislation. The Commission proposes implementing ‘proportionate sanctions’ for individuals who leave the Member State responsible for processing their asylum claim. This could entail mandatory return to the responsible state, potentially removing the options to consider the application in the Dublin Regulation. It also suggests fast-tracked examination procedures without an automatic right to remain during the appeal, detention or movement restrictions, removal of benefits, and reduced claim credibility based on ’existing provisions’ dealing with last-minute applications. The Commission also proposes penalties for individuals who relocate without authorization after receiving refugee or subsidiary protection status, including ‘status review’ and restarting the five-year waiting period to obtain long-term residency each time they move.

To further deter unauthorized movement, a common document will be issued to asylum-seekers, clarifying that they cannot leave the Member State responsible for their case except under ‘serious humanitarian circumstances.’

The European Asylum Support Office

Currently, the European Asylum Support Office plays a limited role in assisting national asylum decision-makers. The Commission proposes expanding its role to include evaluating Member States’ adherence to asylum standards and recommending adjustments to national practices. In cases of non-compliance, the Agency could provide ’enhanced support.’ Measures would be put in place to deter both Member States and asylum seekers from disregarding these rules. The Commission would gain the authority to determine ‘operational measures’ for Member States where the Agency identifies breaches of asylum standards, particularly concerning case handling and reception support. This is likely directed at Greece.

The Agency would also be granted the authority to provide detailed guidance on asylum law, complemented by a reporting mechanism and case auditing. It would play a crucial role in assessing the ‘safe’ status of third countries, providing its opinions to the Commission. Additionally, the Agency would be responsible for operating the revised Dublin system, based on criteria that leave no room for discretion, as EU agencies cannot be granted discretionary policy-making powers.

Lastly, the Agency would have access to a pool of national experts and additional financial resources linked to new funding allocated for humanitarian assistance within the EU. Although the Commission acknowledges that it’s a distant prospect, it suggests that the Agency could eventually be tasked with making first-instance decisions in place of national authorities.

Safe routes for entry

While much of the paper centers around improving the functionality of the Dublin system, it does address safe entry routes, albeit to a lesser extent. The Commission plans to use existing ‘soft law’, such as the general recommendation on resettlement (transferring individuals from non-EU countries to the EU) and the controversial 1:1 agreement between the EU and Turkey, which effectively ’exchanges’ resettlement places for the readmission of non-Turkish refugees from the EU, as a foundation.

Expanding on this, the Commission intends to propose EU legislation on resettlement, outlining a ‘common approach to safe and legal arrival in the EU’ for individuals in need of protection. This legislation will encompass general rules addressing admission and distribution, the legal status of resettled persons, financial aid, and penalties for unauthorized movement between Member States. These rules will then be applied to individual cases involving specific countries or groups. Resettlement for specific countries might be contingent upon a quid pro quo basis, linked to readmission, mirroring the controversial deal with Turkey. It’s worth noting that the EU is on the verge of initiating readmission treaty negotiations with Jordan, another major host country for Syrian refugees.

Beyond resettlement, the paper explores other legal pathways for safe entry. This includes making existing laws regarding the admission of workers, students, and researchers more accessible to refugees. However, the Commission remains noncommittal on introducing EU legislation in this area. Encouraging private sponsorship by developing EU ‘best practices’ is also suggested. Additionally, the Commission pledges to examine the feasibility of humanitarian visas, the most straightforward approach being the inclusion of provisions in the EU visa code, which is currently under review. This aligns with the European Parliament’s position and previous recommendations.

Legal migration

The Commission argues that increased legal migration is necessary for economic and demographic reasons. To achieve this, it proposes several measures, beginning with amending the EU’s Blue Card Directive. The goal is to simplify the process and make the directive, which has had limited success, a more attractive option for highly skilled workers.

Additionally, the Commission is considering proposing EU legislation to facilitate the entry of entrepreneurs and service providers from non-EU countries. A review of the effectiveness of existing EU legislation on labor migration is also planned, with a focus on preventing worker exploitation. The paper concludes with a general discussion on collaboration with third countries.

Comments

The paper appears to prioritize the preservation of the Dublin system, subordinating all other aspects of asylum law to support this objective. This raises the question of whether the Dublin system is salvageable and whether preserving it, and by extension Schengen, is truly in the EU’s best interest.

The fundamental flaw lies in the assumption that the Dublin system can be salvaged, especially now that its shortcomings have become a significant political issue due to increased migration. Allowing large numbers of asylum-seekers to move from overwhelmed countries like Greece and Italy to other Member States is politically untenable for those states, leading to the re-emergence of internal border controls and the construction of walls. On the other hand, insisting that a nation like Greece, grappling with economic hardship exacerbated by a combination of internal and Eurozone governance issues, should shoulder this burden alone is also unsustainable. Both the EU court and the European Court of Human Rights have previously ruled that Greek asylum standards were inadequate even before the economic and migration crises. Furthermore, efforts to alleviate the burden on Greece through relocation decisions have proven ineffective.

It is highly unlikely that a slightly modified relocation system will succeed, and it is doubtful that Member States will agree to a full-fledged quota system, which they are likely to find even less appealing.

This explains the EU’s recent shift towards a ‘Plan B’: returning most, if not all, individuals arriving in Greece directly back to Turkey. The viability of this alternative remains to be seen. It might prove equally unfeasible if individuals find alternative routes, are undeterred from entering the EU, or successfully challenge the legality of the deal. The Commission seems to believe that a sufficient number of individuals will continue to arrive and create a political issue, which is why the paper emphasizes punishing secondary movements and deterring arrivals.

The Commission’s proposed methods for penalizing secondary movements are reminiscent of an overly strict parent resorting to authoritarian measures. Some of these proposals are legally dubious. For example, the CIMADE and GISTI judgment, which ruled that asylum-seekers are entitled to benefits even if another Member State is responsible for them under the Dublin system, was partially based on the EU Charter. Amending legislation to overturn this judgment could be challenged as a violation of the Charter. The same logic applies to new regulations regarding detention.

A more effective approach would be to offer incentives, such as a modest financial bonus, to encourage asylum-seekers to remain in the Member State assigned to them under the relocation rules. Alternatively, granting earlier access to work or a streamlined path to long-term residency could act as positive reinforcement.

The Commission appears to be reacting irrationally to the perceived ingratitude of those seeking asylum, resorting to threats without concrete plans. While it aims to deter individuals from seeking refuge in the EU, it offers little detail on how it plans to do so. These plans face political, legal, and practical constraints, and it is unlikely that the Commission will successfully convince the European Parliament, EU Member States, or the courts. Member States are unlikely to agree to further limitations on their control over asylum procedures, and the European Parliament is unlikely to support a rollback of the improved standards it fought to achieve.

The logic behind the Commission’s stance is flawed. If high asylum standards are such a draw, why are there so many more refugees in countries like Turkey, Jordan, Lebanon, and East Africa? Would a greater distinction between refugee and subsidiary protection status not encourage more appeals and secondary movements?

The only positive aspect of the Commission’s paper is its focus on safe passage. However, it has spent the last two years resisting this very concept in the context of revising the EU visa code, arguing that humanitarian visas are unsuitable for short-term entry. Including humanitarian permits in this paper appears to be a way to postpone addressing the issue. The EU could and should have established a comprehensive resettlement policy long ago. Notably, the paper makes no mention of specific numbers in this context, unlike the recent recommendations by the UNHCR. Furthermore, demanding something in return for the humanitarian act of resettlement is a cynical approach.

In conclusion, the Commission’s paper is deeply disappointing. While there are certainly instances of asylum system abuse, existing EU legislation already provides tools to address these issues, such as fast-tracking decisions and appeals, reducing benefits, and detaining individuals. The paper fails to present a balanced, rational, and coherent response to the crisis and instead reflects a sense of panic.

It’s crucial to remember that EU asylum law does not exist in a political vacuum. Member States have been instrumental in shaping these laws and play a crucial role in implementing them and driving the response to the crisis. Any critique of the ‘EU response to the crisis’ must acknowledge the driving force behind it: the rise of neo-nationalist political parties, which hold government positions in several Member States and constitute the primary opposition in many others. However, is appeasing these parties truly the best course of action? These parties will always resort to exploiting anger, fear, and ignorance, making it essential to stand firm and fight for one’s beliefs instead of pandering to the fundamentally different views held by these opponents.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

Barnard & Peers: chapter 26

JHA4: chapter I:5

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